Abortion clinics ask FL Supreme Court to expedite review of 15-week ban

‘Florida patients are, right now, experiencing irreparable harm,’ they argue

By: - August 19, 2022 5:27 pm

Supreme Court of Florida. Credit: Danielle J. Brown

The abortion providers challenging Florida’s 15-week abortion ban asked the Florida Supreme Court on Friday to block enforcement of the law — and to do so quickly because of the harm the ban is doing to their patients.

In pleadings filed with the justices, the providers asked the high court to overrule an order by the Florida First District Court of Appeal that allowed the law to remain in effect as the litigation continues over the law’s validity under the Florida Constitution.

The providers asked the justices to order the state to reply by Aug. 29 at 5 p.m.

“Vacating the stay will ensure that, while proceedings in this court continue, Floridians will be able to exercise their constitutional right to decide for themselves whether to have a previability abortion or to carry a pregnancy to term — a right that, for decades, this court has repeatedly recognized the Florida Constitution confers,” they write.

“Plaintiffs and Florida patients are, right now, experiencing irreparable harm, as the state is able to enforce HB 5 in violation of Floridians’ settled rights, and Floridians are currently banned from accessing the time-sensitive medical care they need.”

HB 5 is the law barring abortions after 15 weeks’ gestation. Circuit Judge John Cooper of Leon County prohibited enforcement on July 5, four days after the law took effect, citing the Florida Supreme Court’s 1989 ruling establishing a right to abortion under the Florida Constitution’s privacy clause — Article I, Section 23, approved by a supermajority of Florida voters in 1980.

Under Florida law, an automatic stay of Cooper’s ruling took immediate effect. The providers then asked that court to lift the stay, but it refused.

Separate claims are pending in Leon County Circuit Court filed by faith leaders who argue the law unconstitutionally imposes a state-preferred view of when life begins in contradiction to their own beliefs that abortion is permitted, even required, under some circumstances, such as to protect the health of the pregnant person.

Unsettled right

The state’s justices have upheld the right to an abortion on numerous occasions since 1989 and, under legal conventions regarding precedent, those rulings should guarantee abortion access notwithstanding the U.S. Supreme Court’s repudiation of Roe v. Wade.

However, since taking office, Gov. Ron DeSantis has loaded the Florida Supreme Court with conservatives who have demonstrated their willingness to recede from precedents handed down when the court was more moderate.

So why the urgency to move to a Supreme Court that may well rule against them?

“We know that the law in Florida is clear and unequivocal in this area,” Whitney White, an ACLU attorney representing Planned Parenthood and other clinics, said during a Zoom conference call Friday afternoon.

“And Floridians strongly support abortion rights. They have clearly and repeatedly expressed their will that abortion should remain protected and accessible in Florida,” White continued.

Meanwhile, Florida clinics are experiencing an inflow of patients from neighboring states with more restrictive abortion laws and an outflow of patients who missed the 15-week deadline because of late-emerging fetal abnormalities or because they realized too late that they were pregnant, clinic doctors said.

Dr. Robyn Schickler of Planned Parenthood of Southwest and Central Florida estimated that out-of-state patients comprise 35 percent of her caseload.

“It is impossible to be able to support the level of need that every single person has at this time, because the need is enormous,” she said. “You have millions of folks that are being turned away from abortion care in their community and being forced to travel outside of their communities. You also have folks who don’t have the resources to pay the bills that they have already, let alone unplanned travel.”

‘Irreparable harm’

The providers complain that the First District Court of Appeal improperly concluded that the providers lack standing, or a sufficient stake in the outcome, to pursue the challenge to the law on their own of their patients’ behalf. Additionally, that court gave too little weight to the “irreparable” harm the providers patients are suffering as a consequence of the ban, the providers argue.

“This court has discretionary jurisdiction to review the DCA order because it expressly and directly conflicts with a decision of the Supreme Court on the same question of law,” the providers insist.

“For the foregoing reasons, this court should exercise its discretionary jurisdiction to review the DCA order, which prevents plaintiffs from vindicating their patients’ privacy rights and allows irreparable harm to Floridians’ constitutional rights to continue,” it adds.

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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.