Florida Appeals Court sends challenge to 24-hour waiting period back to lower court

Big pro-life victory

By Dave Andrusko

Editor’s note. My family and I will be on our vacation through August 27. I will occasionally add new items but for the most part we will repost “the best of the best” — the stories our readers have told us they especially liked.

Florida first enacted its 24 hour waiting period in 2015. Challenged immediately by the ACLU, the case has been up and down the legal ladder ever since Governor (now U.S. Senator) Rick Scott signed HB 633 into law June 10, 2015.

Today a three judge panel of the 1st District Court of Appeal sends the case back to Leon County circuit court. Judge Timothy Osterhaus, joined by Judge Harvey Jay, agreed with the state’s arguments that a 24-hour waiting period is needed to ensure “informed consent” by women before abortions are provided.

In January 2018, Leon County Circuit Judge Terry Lewis (since retired) ruled that the law was unconstitutional on multiple grounds, including that the state failed to show there was a “compelling state interest” for the 24-hour waiting period; didn’t show that it was enacted in the “least restrictive manner”; and violated the privacy clause of the state Constitution. Judge Lewis made permanent a temporary injunction granted by the Florida Supreme Court in 2017, after a Gainesville abortion clinic challenged the law as a violation of privacy rights under the state Constitution.

But, as Osterhaus wrote, “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.”

According to reporters Dara Kam and Jim Saunders, Judge Osterhaus made two major points.

First, that since there “disputed genuine issues of material fact remain,” opponents of the law “are not entitled to final summary judgment.” The panel ordered “further consideration of appellees’ facial constitutional challenge.”

Second, Judge Osterhaus wrote that Judge Lewis used an incorrect legal test in finding HB 633 to be unconstitutional.

“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.”

The plaintiffs have three options, according to Kam and Saunders: an appeal to the Florida Supreme Court; ask the 1st District Court of Appeal for a full-court rehearing; “or agree to have a Tallahassee judge reconsider the lawsuit.

Going to the Florida Supreme Court has all court watchers intrigued. As NRL News Today previously reported, three pro-abortion justices left the bench (because of reaching a mandatory retirement age)– Justices Barbara Pariente, R. Fred Lewis, and Peggy Quince. “Republican Gov. Ron DeSantis appointed three replacements, Barbara Lagoa, Robert Luck and Carlos Muniz, who created a solid conservative majority on the court,” Kam and Saunders reported.