Abortion rights protesters gather in front of the Florida Supreme Court on May 3, 2022. Credit: Danielle J. Brown
Abortion providers have asked a state trial judge to set aside a state challenge and reinstate his order blocking enforcement of Florida’s 15-week abortion ban, citing the urgency of the moment.
Circuit Judge John Cooper of Leon County, in an order handed down on Tuesday, declared that the ban violated the Florida Constitution’s privacy clause and barred its enforcement. However, under Florida appellate procedure, an automatic stay kicked in as soon as lawyers for the state filed an appeal that same day.
Cooper said during a two-day trial last week that he was disinclined to try to overrule such a stay, noting that the next court above him, the Florida First District Court of Appeal, has been striking down such stays of stays by trial judges during the past few years.
Cooper suggested the providers take any request to do that directly to the First DCA.
But on Wednesday, they asked Cooper to act notwithstanding his qualms, citing the need to restore the long-held right to seek to terminate pregnancies. Providers have reported being inundated with calls from women worried about whether they qualify for abortions under HB 5, which as of its effective date on Friday bans abortions after 15 weeks’ gestation with no exceptions for rape or incest.
The only exceptions allowed are to protect the life and health of the mother, as attested by two doctors, or in case of fatal fetal abnormality.
“Without certain and immediate relief from the automatic stay, plaintiffs and their patients will suffer the very harms this court issued the temporary injunction to prevent, in violation of the Florida Constitution and clearly established Florida Supreme Court precedents,” the providers argued in a 13-page motion.
Voluminous fact record
The providers, represented by the American Civil Liberties Union, ACLU of Florida, Center for Reproductive Rights, Planned Parenthood Federation of America, and the Jenner & Block law firm, cited the voluminous factual record Cooper cited in declaring the law likely unconstitutional.
That record refuted the state’s claims that it would protect maternal health and avoid causing fetal pain, Cooper ruled.
“The [trial] court’s familiarity with the evidence means it is best situated to determine how the factors for vacating the stay apply, as well as to minimize the delay that will inevitably result while an appellate court that lacks prior exposure to this case considers briefing on whether to vacate the stay,” the legal team wrote.
“Every day that HB 5 remains in effect, Florida patients in desperate need of post-15-week abortion services are being turned away and forced to attempt to seek abortions out of state, if they are able to do so; to attempt abortions outside the medical system; or to continue pregnancies against their will. It is unjustifiable to impair plaintiffs’ ability to provide care to Floridians, as courts have held that ongoing violations of constitutional rights support an order to vacate a stay.”
The motion acknowledged that Florida Supreme Court, where the case will eventually land, might not abide by its own 1989 precedent upholding an expansive right to abortion during the first two trimesters under the Florida Constitution’s privacy clause. Since taking office in 2019, Gov. Ron DeSantis through his appointments has established a conservative supermajority on that court.
To that, the legal team said:
“Any speculative arguments that the Florida Supreme Court might eventually overrule existing precedent are far from enough to demonstrate a likelihood that defendants [the state] will succeed in overturning the temporary injunction on appeal. This court, like the First DCA, is bound to apply the law as it currently exists.”
As for the First DCA’s track record on appellate stays, this case differs from others in which the court allowed suspect state laws to take effect, the motion argues — in cases, for example, involving restrictions on voting rights and whether to reopen the public schools notwithstanding the COVID pandemic. Both outcomes involved technical questions about whether an injunction would overturn the status quo and thereby sow confusion among the public.
Here, Judge Cooper’s ruling preserves the status quo, the document insists.
“The status quo here is the right to access a pre-viability abortion from state-licensed providers, as guaranteed by the right to privacy under the Florida Constitution and as Florida patients have safely done for decades. An order vacating the automatic stay would restore that fundamental right while this matter is further litigated on appeal,” it argues.
“The state should not be permitted to violate Floridians’ constitutional rights simply because it has chosen to appeal this court’s ruling granting a temporary injunction. And there is no question about irreparable harm if the stay remains in place and this court’s injunction does not take effect.”
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