FL Supremes Consider Whether Abortion Waiting Period Will Take Effect

Nov 4, 2016

Credit Nick Evans

The Florida Supreme Court is preparing to rule on whether to allow a new abortion restriction to take effect.  The measure requires women wait 24 hours after an initial consultation before receiving treatment.

Since the Florida Legislature approved a 24 hour “cooling off” period in 2015, the measure has been in limbo—as different courts have stepped in with injunctions to keep the law on hold.  Now, the Florida Supreme Court is considering how to proceed.  Denise Harle, arguing on behalf of the attorney general, says the state is justified in delaying abortions just as it delays other major decisions like marriage.

“The waiting period is not because it’s a medical procedure,” Harle said.  “It’s a waiting period because this is an irreversible life altering decision on the order of things like marriage, divorce, giving up your child for adoption and other contexts where the state imposes a very brief waiting period for major life decisions because there is a societal interest in people entering into those decisions with due deliberation.”

Making that point—that there is a compelling state interest in imposing the restriction—is important, because Florida has heightened privacy requirements enshrined in its constitution. 

But as Harle continued to push the argument some justices weren’t having it.

“The state is not trying to encourage or discourage abortion just as the state is not trying—attempting to discourage marriages or anything else,” Harle said before Justice Barbara Pariente cut her off.

“You know I appreciate that you have to argue this for the state but with all due respect if you read the affidavit of Dr. Curry you can’t really reach that conclusion,” Pariente said.

American Civil Liberties Union attorney Julia Kaye argues without the law women who are uncertain can wait as long as they need.

“But when the only women who are impacted are the women who are ready to proceed,” she said, “clearly the state is sending a message that it wants women to reconsider their decisions, that it disapproves of their decision, that it doesn’t think women are capable of making this decision without a government mandated delay.”

And Kaye says if the state wants to step between women and abortion treatment, it has to contend with the state’s constitutional privacy protections.

“No court has held that a 24 hour mandatory delay law is so insignificant that it doesn’t even implicate the right to privacy,” Kaye said.  “To the contrary, courts applying the same standard that this court applies have struck down mandatory delay laws of as little as two hours because the state is delaying the woman who after appropriate counseling is prepared to give her informed consent and exercise this fundamental right.”

But while both sides spar about the law’s implications, the question before the court is actually far narrower.

“The TI order should be affirmed and this court should clarify that this overt and direct interference with the private decision to have an abortion must be subject to strict scrutiny,” Kaye summed up.

The TI is the temporary injunction keeping the law from taking effect.  Should the ACLU prevail, the law won’t be declared unconstitutional.  Instead it’ll go back to square one for a full evidentiary hearing with the state having to prove its restriction is both compelling and narrowly tailored.  It could mean years of litigation for a law that’s already spent a year and a half in court. 

While activists decry the continual erosion of abortion rights in Republican-controlled state Legislatures, it appears groups like the ACLU are ready and willing to meet those restrictions with a protracted legal battle.  As that trench warfare plays out, the U.S. Supreme Court’s decision last June striking down a Texas law is putting further pressure on state governments to justify new restrictions.

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