By Dave Andrusko
A legal challenge to Florida’s newly enacted ban on abortions after the 15th week, HB5, will be heard June 27. Several abortion clinics and an abortionist filed a lawsuit June 1 in Leon County circuit court challenging the new Florida law, seeking a temporary injunction.
“Lawyers in Attorney General Ashley Moody’s office filed a 29-page document Monday urging Leon County Circuit Judge John Cooper to reject a request by abortion clinics and a doctor for a temporary injunction against the limit, which Gov. Ron DeSantis signed into law in April,” according to CBS News.
HB 5 –“Reducing Fetal and Infant Mortality Act” –protects unborn children from abortion after 15 weeks of pregnancy (almost four months) except for severe fetal anomaly or to save the mother’s life or prevent a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition. The bill is modeled on the Mississippi law under review by the U.S. Supreme Court.
“Plaintiffs have a substantial likelihood of success on the merits because HB 5 is unconstitutional on its face,” the plaintiffs’ June 1 motion for a temporary injunction argued. “Simply put, the right to privacy enshrined in the Florida Constitution protects the right to obtain an abortion before fetal viability, and the act (HB 5) contravenes that right by banning abortion months before viability.”
The state countered, writing
“At a minimum, the state’s interest is compelling in situations where the effect of HB 5 (the new law) is to encourage women to schedule their abortions earlier and results in a less dangerous medical procedure,” the state’s lawyers wrote in the filing Monday. “As to protecting children in utero, the state defendants’ experts will show that a 15-week-old child is a distinct living being who is conscious and experiences pain.”
The plaintiffs are relying heavily on prior ruling by the Florida Supreme Court. “Those rulings have protected abortion rights based on the privacy clause in the state Constitution,” Jim Saunders wrote.
In 1980 voters approved the privacy measure which states a resident has the “right to be let alone and free from government intrusion into his private life.” In 1989 “The Florida Supreme Court interpreted that to include within one’s right to privacy, a right to terminate a pregnancy, a right to abortion,” according to Stetson University law professor Louis Virelli.
Florida is one of 11 states whose state constitutions and courts have put in place abortion rights independent of the U.S. Constitution.
In its filing, lawyers in Attorney General Moody’s office “raised a series of arguments to try to convince Cooper to reject a temporary injunction,” Jim Saunders wrote. “In part, they contended that the plaintiffs don’t have legal standing and would not suffer ‘irreparable harm’ from the law.
And the composition of the state Supreme Court has changed dramatically. Gov. DeSantis has appointed three conservative to the state Supreme Court and come August 31, he will also replace Justice Alan Lawson who is retiring. “There is now a reconstituted Florida Supreme Court led by Chief Justice Charles Canady, a former Republican member of Congress who worked as former Gov. Jeb Bush’s top lawyer before he was appointed to an appeals court by Bush,” Saunders reported.
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