State wants to take 15-week abortion ban defense directly to FL Supreme Court

‘Delay would also have real-world consequences even apart from the destruction of unborn life,’ motion argues

By: - July 7, 2022 12:02 pm

Abortion rights protesters gather in front of the Florida Supreme Court on May 3, 2022. Credit: Danielle J. Brown

Lawyers for the state have asked that their appeal of a trial court’s ruling that Florida’s new 15-week abortion ban violates the Florida Constitution go directly to the Florida Supreme Court, to resolve a matter of critical state importance as quickly as possible.

They did so in a motion filed with the Florida First District Court of Appeal, an intermediate appellate court that ordinarily would be the next venue for arguments over HB 5, the abortion ban.

The state’s appeal from that [trial court] decision raises questions of exceptional public importance that warrant immediate resolution by the Florida Supreme Court,” lawyers for the Office of Attorney General argue in a 12-page brief filed Wednesday evening with the First DCA.

Circuit Judge John Cooper ruled on June 30 that Florida’s new 15-week abortion ban violates the state Constitution’s privacy language. Screenshot: Florida Channel

“This court should so certify this appeal as soon as practicable. Additionally, because of the importance of these issues and their timely resolution, the state requests expedited review and that the court order plaintiffs to respond to this suggestion by noon on Friday, July 8, 2022,” the brief continues.

The First DCA actually gave the abortion providers challenging the law until noon on Monday.

Circuit Judge John Cooper in Leon County ruled Tuesday that the law violates the privacy clause in the Florida Constitution, which the state Supreme Court in 1989 ruled protects the right to abortion, even for minors.

The court has reinforced that conclusion in subsequent legal challenges, most recently in 2017.

Cooper issued an injunction against enforcing the ban, reasoning he was bound to follow those precedents unless the state’s highest court overturns them — which, now with a supermajority of conservative justices who have overturned other precedents, it well could do.

Representing the abortion providers including Planned Parenthood are the American Civil Liberties Union, ACLU of Florida, Center for Reproductive Rights, Planned Parenthood Federation of America, and the Jenner & Block law firm.

Disruption for women

The state filed a notice of appeal of Cooper’s ruling the same day he handed it down, which triggered an automatic stay of his injunction. The providers filed a motion on Wednesday asking him to dissolve that stay, but he hasn’t acted yet.

Meanwhile, providers have been flooded with calls from women confused about whether they qualify for abortions under the 15-week ban, which provides no exceptions for rape or incest, only to protect maternal health or in cases of fatal fetal abnormality.

In its motion, the state argues the ban affects only a “small fraction of abortions” performed more than 15 weeks after the last menstrual period. According to court records, that amounted to around 5,000 of the 80,000 abortions performed in Florida during 2021, or 6 percent.

Florida First District Court of Appeal in Tallahassee. Photo by Michael Rivera, Wikimedia Commons

In its 1989 ruling, In re T.W., the state Supreme Court declared that the Florida Constitution’s privacy protections exceeded those established by the U.S. Supreme Court in Roe v. Wade. Still, the state now argues that the Florida court “has relied on the U.S. Supreme Court’s abortion decisions in reasoning that Florida’s privacy clause implicates the right to abortion.”

The document adds:

“But in Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overruled those decisions, holding that the U.S. Constitution does not protect the right to an abortion.

“The [U.S. Supreme] Court rejected the notion that a right to abortion is an integral part of a broader entrenched right, whether characterized as a right to privacy or as the freedom to make intimate and personal choices that are central to personal dignity and autonomy.

“That sea-change in federal law plainly warrants reconsideration of the Florida Supreme Court’s interpretation of Florida’s own constitutional right to privacy, and there will be great uncertainty in Florida until it does so.”


The providers cited the urgent need to protect women’s rights in their pleading before Cooper on Wednesday; the state’s lawyers also sought a speedy decision.

Republican State Rep. Erin Grall, House sponsor of HB 5, with Gov. Ron DeSantis, who signed it into law in April. Credit: DeSantis Facebook page.

“Whatever one’s views on abortion, the importance of resolving that issue quickly and authoritatively is manifest,” the state argues.

“For many, the Florida Supreme Court’s abortion precedents preclude the Legislature from regulating a procedure that some deem nothing short of an act of violence against innocent human life. … For many others, those precedents safeguard important interests in ‘bodily integrity’ and ‘autonomy,’” the motion continues.

“Delay would also have real-world consequences even apart from the destruction of unborn life. HB 5 also protects maternal health and prevents the conscious suffering of the unborn. If this court affirms the circuit court and HB 5 is enjoined pending further review, women and the unborn will be without these critical safeguards.”

Cooper, in his order, cited medical evidence, embraced by an overwhelming majority of the medical community, directly refuting both of those assertions — indeed, establishing that the law actively endangers maternal health.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.