Circuit Court Judge says Florida’s 24-hour waiting requirement to have an abortion is unconstitutional

By Dave Andrusko

In the latest phase of a lengthy and convoluted legal battle, Leon County Circuit Judge Terry Lewis ruled today that HB633, signed into law by pro-life Florida Gov. Rick Scott in June 2015 is unconstitutional and permanently blocked enforcement of the law.

In Judge Lewis’s view, requiring a pregnant woman to meet with an abortionist and wait 24-hours before she can have an abortion, should she decide to proceed, was an “impermissible intrusion” of privacy rights that are contained in Florida’s constitution.

In his 10-page decision, Lewis essentially found two major flaws.

First, that the state of Florida had not shown there was a “compelling state interest” for the waiting period. Second, Lewis ruled, the state did not show that the law was enacted in the “least restrictive manner.” The two concerns can be found in one paragraph quoted in news stories covering the decision:

“The essential problem is that the language of the act — what’s in it and what’s not — belies the claimed compelling nature of the state interest being advanced, and demonstrates ambivalence, if not outright hostility, to the mandate that the least restrictive measures be utilized to advance that interest.”

Blaine Winship, a lawyer representing the state, had asked Judge Lewis ‘to order a trial on the merits of HB633. But lawyers representing Gainesville Woman Care LLC, want Judge Lewis to issue a summary judgment. 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,” according to Lloyd Dunkelberger, of the News Service of Florida.

Dunkelberg wrote that Winship cited expert medical testimony to argue

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.”

The case has bounced back and forth numerous times through the judicial system. The legal wrangle back and forth is hugely complicated.

In 2015, two weeks after Gov. Scott signed HB 633 into law, Circuit Court Judge Charles Francis agreed with the plaintiffs who’d challenged the law. They maintained the waiting period requirement creates an “undue burden” and violates the state Constitution’s right of privacy.

The state appealed to Florida’s First District Court of Appeals which reversed the injunction order and immediately reinstated the law. Undeterred the plaintiffs appealed to the Florida Supreme Court which halted the law in April 2016 while the justices pondered whether to take the case. They did in May 2016.

Then in February 2017, in a 4-2 decision written by Justice Barbara Pariente, the justices upheld the temporary injunction it had issued 10 months previous. Justice Pariente relied heavily on the state Constitution’s right to privacy, and concluded the 2015 law has a “substantial likelihood” of being ruled unconstitutional.

The justices said a lower court–in this case, Judge Lewis–would determine whether the law is constitutional.