First DCA Hears Arguments About Abortion Waiting Period

Feb 9, 2016

Florida's First District Court of Appeals
Credit Adam Theo

Florida is pushing ahead with new restrictions for the state’s abortion providers while earlier restrictions are locked up in court.  A 24-hour waiting period approved last year came before the First District Court of Appeals Tuesday.

Florida law requires a 24-hour waiting period before a woman can get an abortion.  The thing is that provision is on hold.  The American Civil Liberties Union filed a challenge in court last year and received a temporary injunction—blocking the law from taking effect.  Tuesday that case was back in court.

ACLU attorney Julia Kaye argues requiring a delay before an abortion is a significant restriction.  In light of Florida’s extensive privacy protections and earlier state Supreme Court rulings, she says, the state faces a heavy burden of proof.

“The [Florida Supreme] Court told us that any restriction on abortion—or rather, any law in general that implicates the right to privacy gets strict scrutiny,” Kaye argues.  “So when we’re asking what does a significant restriction mean, what does that standard require, the question is does the law implicate the right to privacy.”

The strict scrutiny standard is important.  In this case it means the waiting period has to serve a compelling state interest by the least restrictive means.   It’s the highest standard of review.  But District Judge Bradford Thomas is puzzled why the trial court applied it in this case.  Here he is speaking with Kaye.

“The trial court doesn’t seem to—made any kind of factual determination this was a significant restriction,” Thomas probed. 

“The trial court correctly applied strict scrutiny as a matter of law,” Kaye replied before Thomas cut her off.  “But how can the trial court do that?  How can it not make factual findings?”

“I’m not criticizing your argument, but the trial court order skipped a critical first step,” Thomas continued, “made no factual findings, and the trial judge said I’m going to enter the injunction anyway.”

Kaye argues back that courts in Montana—which has similar privacy protections—struck down a 24-hour waiting period without developing a factual record.

“It determined that strict scrutiny applies not by considering the factual record, but by looking at the plain terms of the law,” Kaye says.  “And the court held in that case that the law infringed on the right to privacy, and triggered strict scrutiny as a matter of law because, ‘the state is telling a woman she cannot exercise a fundamental constitutional right for a 24-hour period.’”

On the other side, Denise Harle arguing on behalf of the state, says Florida’s privacy amendments were never meant to block abortion legislation.

“In approving the privacy amendment in 1980, the Florida voters did not intend to prevent the Legislature from enacting a reasonable law that a majority of states have enacted,” Harle says.  “One that ensures pregnant women do not—have adequate time to freely make the serious decision whether to have an abortion.”

And she argues—as lawmakers and attorneys for the state have before her—that a one day delay just isn’t a significant restriction. 

Rep. Jennifer Sullivan (R-Mount Dora)
Credit Nick Evans

  While the lawyers tussled over the legality of Florida’s waiting period, the law’s House sponsor Rep. Jennifer Sullivan (R-Mount Dora) looked on.  Speaking after the hearing she was optimistic.

“I’ve actually heard from one woman a younger woman who told me that because she had the time to reflect, that she—before, right before the injunction went into place, that she did chose life,” Sullivan says.

Judge Susan Kelsey joined Thomas in expressing skepticism toward the trial court’s use of strict scrutiny.  Based on questions in court it seems the bench is leaning toward sending the case back to the trial court with an order to develop a factual record.