The Florida Supreme Court building. Credit: Michael Moline
The Florida Supreme Court should take up an appeal against the state’s 15-week abortion ban because of a lower appeals court’s disregard of settled law allowing abortion providers to challenge restrictions on behalf of their patients, a group of clinics argue in court papers filed Thursday.
The providers, including Planned Parenthood affiliates, filed motions before the state high court arguing that that lower court, the First District Court of Appeal, never even reached the merits of their challenge to HB 5, the 15-week ban — which is that the law imposes substantial harm to their patients’ access to a procedure necessary to preserve life and health.
Instead, the First District ruled that the providers lacked “standing” to file suit.
Yet their right to sue on behalf of their patients is well established under Florida legal precedents, the providers noted. They cited Gainesville Woman Care LLC v. State in 2017, North Florida Women’s Health & Counseling Services in 2003, and State v. Presidential Women’s Center in 1998, each of which allowed such lawsuits.
The result is First DCA issued “decisions that plainly articulate a direct conflict with this court’s decisions on the same questions of law. Leaving these conflicts unaddressed will destabilize this court’s precedent and lead to confusion in the lower courts,” the providers argue.
“Because the First DCA’s decisions meet the standard for this court to accept discretionary jurisdiction based on a direct conflict, plaintiffs respectfully suggest that there is a substantial likelihood that the court will do so in order to resolve this discord,” they added.
The providers asked the justices to overrule the First DCA and reinstate Leon County Circuit Judge John Cooper’s injunction against enforcing the abortion law, arguing that attempting to make their case before the First DCA would be “futile.”
“Without action by this court to permit the circuit court’s injunction to take effect, plaintiffs and their patients who need abortion care after 15 weeks will endure substantial harm to their constitutional rights and, as detailed by the circuit court, to their health, lives, and futures, harms that are irreparable in nature and cannot be remedied at law,” they wrote.
Cooper issued his injunction against enforcing the law on July 5, four days after it took effect. The state immediately appealed to the First DCA, trigging an automatic stay of Cooper’s injunction. The law includes exceptions to preserve the health of pregnant people or for severe fetal abnormalities but not for rape or incest.
Cooper cited the Supreme Court’s own 1989 precedent in In re T.W., establishing an expansive right to abortion under the privacy clause that the voters added to the Florida Constitution in 1980. Theoretically, that would guarantee access notwithstanding the U.S. Supreme Court’s repudiation of Roe v. Wade this year. The Legislature passed the law assuming the justices in Washington would act as they did.
However, it’s not clear the state high court, which has swung sharply to the right because of appointments by Gov. Ron DeSantis, will respect that precedent.
Health care providers who violate the ban could face felony penalties of up to five years in prison and loss of their medical licenses.
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.
As the Planned Parent and other providers argue in two briefs filed before the justices on Thursday, the First DCA never addressed Cooper’s findings that the purported justifications for the ban — preserving the life and health of pregnant people and avoiding fetal pain — didn’t make sense.
Cooper concluded that “HB 5 does not advance, and in fact undermines, maternal health; that no reliable scientific evidence supported the state’s asserted interest in preventing fetal pain; and that patients denied abortion care under HB 5 will be forced to travel significant distances out of state at great economic and personal cost, to attempt to terminate their pregnancies outside the medical system, or to carry a pregnancy to term against their will,” they wrote.
“Nearly 5,000 patients obtained abortions in Florida in the second trimester in 2021, and, as the circuit court found based on the record evidence, there are numerous reasons why many of these patients would have been unable to obtain abortions before 15 weeks LMP,” their last menstrual period, the providers noted, including late recognition that they are pregnant because of “poverty, substance abuse disorders, intimate partner violence, or diagnoses of maternal or fetal health conditions.”
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