Abortion providers ask appeals court to block 15-week abortion ban; patients being turned away

By: - July 13, 2022 12:41 pm

Demonstrators held signs at a May 14 abortion ban protest in Tallahassee, with one sign referencing U.S. Supreme Court associate justice Samuel Alito (wearing red-devil horns), who would write a ruling overturning Roe v. Wade. Credit: Diane Rado

Attorneys for abortion providers turned to an appellate court Wednesday to block Florida’s 15-week abortion ban after the trial judge refused to do so the day before.

They cited the state’s continued enforcement of HB 5, the abortion law in question, forcing providers to halt abortions in pregnancies that have gone beyond 15 weeks from the last menstrual period.

“Every day that HB 5 remains enforceable, Florida patients in desperate need of post-15-week abortion services are being turned away and forced to attempt to seek abortions hundreds of miles or more out of state, to attempt abortions outside the medical system, or to continue pregnancies against their will,” attorneys for the providers wrote in a brief filed with the Florida First District Court of Appeal.

The development means there now are two questions before that intermediate appellate court: Whether to block enforcement of the law, and whether to certify the case directly to the Supreme Court, which would result in a speedier resolution of the whole dispute. The state has asked for that expedited referral, but the providers have filed a brief opposing such a move. They’d prefer to have the appellate court go through its normal route.

Here’s what’s been happening:

Circuit Judge John Cooper in Leon County entered a temporary injunction on July 5 against HB 5, which had taken effect on July 1. The state immediately took the case to the Florida First District Court of Appeal, which triggered an automatic stay of Cooper’s injunction, meaning the state could enforce the law.

Cooper holds the authority to lift the automatic stay on his own, and the providers asked him to do just that. However, on Tuesday, he said no, citing a string of cases in which the First DCA lifted automatic stays.

Circuit Judge John Cooper: Source: Florida Channel/Screenshot

That court, Cooper said, had established “a high barrier, based on the most compelling circumstances doctrine, to a trial court issuing an order vacating an automatic stay.”

That means the state can enforce the law, which includes exceptions only to protect the life of the mother or in cases of fatal fetal abnormalities but not rape and incest, at least for now.

The Legislature approved the measure, which Gov. Ron DeSantis signed into law in April, under the assumption that the U.S. Supreme Court would overturn Roe v. Wade, which it now has done.

Cooper did note that the abortion 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, could take the matter to the First DCA and now they have done that.

The providers’ team argued the case meets the requirements for lifting the stay: that they and their patients will suffer irreparable harm otherwise; they are likely to prevail under existing Florida Supreme Court precedents; and that the “equities overwhelmingly tilt in favor of vacating the stay.”

Cooper had cited those very precedents, which relied on the privacy clause voters inserted into the Florida Constitution in 1980, in issuing his injunction.

Change-up at high court

The problem is that the Supreme Court, which DeSantis has tilted solidly to the right wing through his appointment of three justices, has proven more than willing to overturn precedents handed down when more liberal justices predominated.

The brief the abortion providers filed on Wednesday attacks that problem head-on.

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

“Speculative arguments that the Florida Supreme Court might eventually overrule its existing precedent cannot demonstrate that the state is likely to succeed in overturning the circuit court’s temporary injunction on appeal — particularly when the state’s main argument for overruling this precedent rests on federal law that has no bearing on the Florida Constitution or its protection of the abortion right,” they wrote.

“This court is bound to apply the law as it currently exists,” they added.

“Based on credible expert testimony, the circuit court found that patients seek abortions after 15 weeks LMP [after the last menstrual period] for many reasons, including delays in recognizing pregnancy, poverty, substance abuse disorders, intimate partner violence, or diagnoses of maternal or fetal health conditions — and that these kinds of delays can make it impossible for affected patients to obtain abortions earlier.”

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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. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.

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