Judge Weighs Legality Of Abortion Waiting Period

Nov 22, 2017

Lawyers for the state asked a Leon County circuit judge Tuesday to order a trial about the constitutionality of a 2015 state law that would require women to wait 24 hours before having abortions.

But lawyers representing a Gainesville abortion clinic asked Judge Terry Lewis to issue a summary judgment finding the waiting-period law is an unconstitutional violation of women's privacy rights.

The law is on hold after the Florida Supreme Court this year approved a temporary injunction, sending the case, which involves a clinic run by Gainesville Woman Care LLC, back to the lower courts. Earlier, a trial judge had issued a temporary injunction, but the 1st District Court of Appeal overturned that decision in 2016.

Julia Kaye, a lawyer with the American Civil Liberties Union's Reproductive Freedom Project, asked Lewis to invalidate the law because it would provide no exceptions in cases where women's health could be in jeopardy and because the state has not shown a “compelling interest” for restricting the constitutional right to privacy.

“The problem here for the state is that they have admitted that no other medical procedure in Florida, including those that impose greater health risks than abortion, is subject to a mandatory delay,” Kaye said.

Kaye said the state's “paternalistic argument that women in Florida are not capable” of deciding whether they want abortions or not “is invalid and legally insufficient to support this mandate.”

“Patients may already take additional time to consider their decision if they believe they need additional time,” she said.

Citing testimony from medical experts, Blaine Winship, a lawyer representing the state, said abortion procedures are an “outlier in medical practice” because most other procedures are not performed on the same day that an initial consultation between a doctor and patient takes place.

“The Legislature has acted to bring abortions in line with standard medical practice,” Winship said. “Not out of hostility to the procedure but out of a legitimate concern that women must have the same opportunity for informed consent as patients have with respect with every other invasive procedure that the field of medicine offers.”

Lewis asked Winship why an abortion procedure should be treated differently than a doctor recommending a patient immediately have a gallbladder removed because of health reasons.

Winship said there are provisions in the law where an abortion can immediately be performed if a woman's life “is threatened.” and another provision that says the doctor can act if he or she “reasonably believes” a life is threatened or the patient's health is in jeopardy.

“You got to have a darn good reason for doing it,” Winship said. “It really ought to be life-threatening. But if you believe it's so health- threatening that you're willing to stand up for doing that, to defend yourself, then you can do it.”

Lewis said the language is vague enough that a doctor could risk disciplinary action by the state Board of Medicine by performing an abortion before the waiting period ends.

Kaye said doctors could face criminal charges.

“It's not only that that doctors will be dragged before the medical board at risk of losing their licenses,” Kaye said. “This is a criminal statute. They would be at risk of being prosecuted.”

Lewis gave the state and the abortion-clinic lawyers until Dec. 1 to submit proposed orders in the case. He will make his ruling some time after reviewing those proposals.