Florida’s abortion rights head back to court for reevaluation

Orlando  |  A recent ruling in the Florida courts might serve as another incremental step in witnessing a changing in the tide of legal abortions in the Sunshine State.

Although passing in 2015, Florida’s 24-hour abortion law only saw its effects for a brief moment in 2016. The ACLU argued the law had negative consequences on women and successfully persuaded the Florida Supreme Court to block the waiting period again in 2017. 

A split appeals court reversed a previous court’s decision in 2015 to abolish the 24-hour law mandating women seeking an abortion wait one full day before undergoing medical procedures. On July 31, the First District Court of Appeals, in a 2-1 decision, now forces the circuit court of Leon County to reexamine its views on the abortion law. 

Historically, Florida typically favored abortion rights. However, under Gov. Ron DeSantis’ 2019 term, the Sunshine State has seen policies lean more traditional. The case could reach the Florida Supreme Court, which now has more conservative judges — Barbara Lagoa, Robert Luck, and Carlos Muniz — making abortion in Florida more difficult to obtain. 

Respect Life Director for the Diocese of Venice Jeanne Berdeaux supported the late July appeal. “We encourage the courts to protect women’s health by upholding the 24-hour law waiting period,” she told the Florida Catholic in an email.

Berdeaux said that waiting one day will allow women in that situation to think about their future more critically. “Having an abortion, especially as a result of a hasty decision or coercion, is much more likely to cause emotional harm, including depression. We see the long-term effects with every woman who contacts our Project Rachel Coordinator, sometimes shortly after the abortion, but mostly many years later, sometimes when they are in their 80s or even on their deathbed.  It is very sad that many women carry their grief for so long before seeking help.  We’re here for them.”

Appeals-court Judge Timothy Osterhaus and Judge Harvey Jay, referred to state disputes that a 24-hour waiting period is required to safeguard “informed consent” by pregnant women before abortions are applied. Osterhaus wrote “(The) evidence supporting the 24-hour law raises genuine issues of material fact. Rather than singling out and burdening abortion procedures with arbitrary requirements, the state’s evidence indicates that the 24-hour law brings abortion procedures in Florida into compliance with medical informed consent standards and tangibly improves health outcomes for women.”

A ruling in January 2018 by the now-retired Lee County Circuit Judge Terry Lewis struck down the 24-hour law, stating the waiting period was unconstitutional. In Lewis’ argument, he wrote the state failed to prove “compelling state interest” for the law. 

Judge Osterhaus claimed Lewis utilized faulty methods to evaluate the 24-hour law before striking it down. “Women claiming particular harms from the 24-hour law based on their specific circumstances may challenge the law’s application to them. But those would be as-applied constitutional challenges. No such challenge has been made here,” Osterhaus wrote. “For this facial challenge, the correct legal test is not whether the 24-hour law violates the constitutional rights of some women in some circumstances, but whether it violates the rights of all women in all circumstances.”

Ingrid Delgado, associate director for Social Concerns/Respect Life of the Florida Conference of Catholic Bishops, supports the appeal that will allow a moment of reflection for any mother pondering abortion. 

“The First District Court of Appeals remanded the case back to trial court for a full hearing where the State will be able to bring forth evidence the court had not yet considered in defense of this good law, including testimony from post-abortive women and practicing physicians,” she wrote in an email. “Patient consultation and procedures generally occur on separate days according to standard medical practice. Abortion is a notable exception and this law would align abortion practices with those of all other invasive procedures.”

Judge James Wolf, another opposer to the 24-hour waiting period like Lewis, wrote “There is simply no evidence supporting the concept that information regarding abortion is more complex and needs more time to be understood versus other complex medical procedures.” Wolf contrasted the reinstated wait time to legal bias and disrespect to nationally protected abortion rights. There is “no other medical procedure that has a mandatory delay period after a patient has received the informed consent information.”

Claimants in the legal trial, filed on behalf of a Gainesville abortion clinic and a collection of medical students, could appeal the ruling to the Florida Supreme Court, ask the appellate court for a rehearing, or agree to have a Tallahassee judge reassess the lawsuit.

Benjamin Stevenson, a staff attorney with the ACLU of Florida, said in a statement: “We are disappointed that the court failed to recognize what we all know – a 24-hour delay was designed to and plainly does unnecessarily restrict access to safe and legal reproductive health care. We look forward to proving these facts at trial.” The ACLU remains optimistic the 2017 Supreme Court ruling will still prevent the 24-hour law from taking effect until further decisions.

Delgado is confident more data will be presented in future hearings, including evidence from participating doctors and women who have had abortions. “Reflection period laws have been upheld by the U.S. Supreme Court and are in effect in 27 other states. We look forward to this reasonable regulation being upheld in Florida as genuine informed consent protects women’s physical and mental health.”