Demonstrators march towards Florida Supreme Court during protests over abortion bans. May 14, 2022. Credit: Diane Rado
As promised, a state trial judge on Tuesday issued a statewide injunction against enforcing HB 5, Florida’s new law banning most abortions after 15 weeks’ gestation.
Also as promised, the state immediately filed an appeal. Under Florida’s appellate procedures, the appeal triggered an automatic stay against enforcing the injunction issued by Circuit Judge John Cooper of Leon County, leaving the new law in effect.
The American Civil Liberties Union, ACLU of Florida, Center for Reproductive Rights, Planned Parenthood Federation of America, and the Jenner & Block law firm, which challenged the new law on behalf of Planned Parenthood and other abortion providers, promised to seek to overturn the stay.
“Florida’s 15-week ban has already blocked access to essential abortion care since last Friday, and it will continue to harm pregnant people until it is blocked,” the legal team said in a written statement.
“The trial court correctly recognized this law as a blatant violation of Floridians’ state constitutional rights, and we’re determined to get it blocked for good. The majority of people support the right to get essential abortion care in Florida — a right many have relied on for decades to secure the life they wanted for themselves and their families.”
The law took effect on Friday. Cooper had declared his intention to block enforcement on Thursday following a two-day trial. Abortion providers have reported being inundated with telephone calls from women worried about whether they qualify for terminations under its terms.
“Ron DeSantis’ dangerous abortion ban provides no exceptions for rape or incest, strips women of the freedom to make their own personal medical decisions, and makes Florida a less free place to live,” Florida Democratic Party Spokesperson Kobie Christian said in an emailed statement.
“It’s truly devastating that this extreme law is being reinstated. Floridians deserve the fundamental right to choose where, when, and how they start a family. Floridians should continue fighting DeSantis’ never-ending attempts to dismantle personal freedoms.”
Bound by precedent
In a 68-page opinion, Cooper concluded he was bound by a 1989 Florida Supreme Court precedent holding that the privacy-protection language voters inserted into the Florida Constitution in 1980 and ratified in 2012 protects the right to abortion care through fetal viability — or the second trimester — notwithstanding that the U.S. Supreme Court has overturned Roe v. Wade.
“The Florida Supreme Court has held that the right conferred by the privacy clause is broader than any right to privacy the U.S. Constitution affords, and thus that the Florida right to privacy cannot be compared to the federal right,” he wrote.
He implied, but didn’t say outright, that it doesn’t matter that the state’s highest court, packed with conservatives by Gov. Ron DeSantis, might not respect its own precedent. It has done that on several occasions since the court’s balance shifted rightward in 2019.
“This court must follow the Florida Supreme Court’s precedents on the right to privacy as those precedents currently exist, not as they might exist in the future,” Cooper wrote.
He rejected the state’s argument that HB 5 is not really a ban but rather an encouragement to seek abortions sooner.
“HB 5 prohibits anyone who is seeking an abortion after 15 weeks LMP [last menstrual period] from obtaining one in Florida, unless they fall within the law’s two limited exceptions. That is a ban on abortions after 15 weeks LMP,” he wrote.
He rejected the state’s arguments that the law will protect maternal health, concluding that, to the contrary, it would endanger it.
As for encouraging earlier abortions, Cooper cited evidence that women often have no choice but to seek later abortions because of late-emerging complications.
“HB 5 would undermine maternal health for these women by subjecting them to the increased health risks presented by carrying their pregnancies to term,” he wrote.
The alternative is to travel “significant distances” to more abortion-friendly states, which presents its own delays and accompanying risk, Cooper wrote.
Consequently, the state did not meet its burden of demonstrating that the law furthers a compelling state interest through the least restrictive means, he concluded.
Cooper rejected the state’s argument that the providers lack standing, or a personal interest in the outcome necessary to bring a legal claim, citing their risk of violating ambiguous exceptions to the ban; their close relationships with their patients; and the difficulty and delay entailed if patients had to bring individual claims.
“HB 5 likely is facially unconstitutional and, under existing law, there is likely no set of circumstances in which the state can constitutionally apply it,” he wrote.
“This conclusion applies to any clinic or doctor in Florida, not just those named as plaintiffs in this suit, and the court does not believe the law requires every affected person to sue to prevent a violation of the Florida Constitution,” he added.
Cooper included approximately 38 pages of findings of fact, including that abortion is safe; is the second most common medical treatment for pregnancy (after Cesarean section); that no pregnancy is viable at 15 weeks; and that more than 6 percent (around 5,000) terminations in 2021 occurred during the second trimester.
He found that patients seek abortions because pregnancy’s risks to their physical and mental health is too great and that, because of “historical inequities to health care access and economic inequality, approximately 61 percent of patients seeking abortion care qualify as Black, Indigenous, or women of color, and that these same populations face disproportionately high rates of maternal mortality and comorbidities that increase the health risks associated with pregnancy.”
Cooper concluded, too, that women exposed to partner violence seek abortions to “regain some semblance of their physical and emotional health” and to cut ties to an abuser.
Women seek late abortions because they realized too late that they are pregnant, especially if they are young and experiencing irregular menstrual periods; logistical delays; difficulty taking time off work for the two consultations required 24 hours apart under Florida’s abortion mandatory-delay law; or they are struggling with substance abuse.
“It is not surprising that patients seeking second-trimester abortions are more likely to have low incomes, more likely to report difficulty financing the abortion, and more likely to rely on financial assistance to pay for the procedure,” Cooper wrote.
“Women who are most likely to be delayed in abortion until after 15 weeks LMP are those already facing the challenges of poverty or near-poverty, food insecurity, and economic instability.”
The law provides exceptions to protect maternal life and health (but not mental health) or in case of fatal fetal abnormalities, but some conditions “do not fit squarely within the act’s very limited exceptions,” Cooper wrote. These conditions “may not be fatal but can have profound and lasting implications for the patient, the family, and the neonate if the pregnancy is carried to term.”
Under HB 5, many of these women “would be unable to obtain abortions through the medical system in Florida at all,” Cooper wrote.
“Some patients may decide to end their pregnancies on their own, outside the medical system. Others will be prevented from obtaining abortion care entirely and thus will be forced to continue their pregnancies and have children against their will.”
Safer than childbirth
Cooper found that abortion is very safe — even 12 to 14 times safer than childbirth and safer than colonoscopies, plastic surgery, and some dental procedures.
The judge expressly rejected the state’s expert evidence that the data supporting the safety of abortion and the conclusion that fetuses can experience pain at 14 weeks is unreliable, saying the assertions run counter to the overwhelming weight of medical opinion and lacks credibility.
“HB 5 is likely to undermine rather than advance maternal health,” he wrote.
Additionally, “testimony that such pain could exist before 15 weeks LMP does not support the state’s contention that avoiding pain is a valid reason to reduce the abortion cut-off from viability to after 15 weeks LMP.”
Cooper also found that the law interferes with the doctor-patient relationship.
“Waiting until a patient’s life is at risk or until the patient deteriorates to the point that an abortion is needed to prevent substantial, irreversible physical impairment of a major body function is antithetical to the provision of good medical care,” he wrote.
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