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“I’m finding that the statute … is unconstitutional in that it violates the privacy provision of the Florida Constitution and does not meet the standards of the three Florida Supreme Court cases that have interpreted the effect of that constitutional provision on abortion in Florida,” Circuit Judge John Cooper said from the bench.
“So, I will be entering a temporary injunction. It will be a statewide temporary injunction. It will only be effective when I sign an order, so it will be not today.”
The timing is perhaps messy: The law, HB 5, passed during the Legislature’s regular session this year, is to take effect on Friday. But, because of a time crunch in arguing the case this week, Cooper didn’t think he could sign a formal, written order before Tuesday, he said.
That’s to give the abortion providers’ legal team time to prepare a draft order for his signature and the state 24-hours to review that document.
Whitney White, an ACLU staff attorney from New York who led the providers’ legal team, said during a Zoom call later in the day that the delay means this: “As of tomorrow, unfortunately, HB 5 will be in effect, which means that abortion access after 15 weeks will be restricted and individuals will not be able to access that care.”
Laura Goodhue, executive director of the Florida Alliance of Planned Parenthood Affiliates, agreed with that assessment during a phone interview. “Tomorrow the law goes into effect, so we can’t perform abortions past 15 weeks tomorrow or until he writes this order,” she said.
Looking to Florida Supreme Court
Judge Cooper indicated he was keeping an eye on the Florida Supreme Court, which now will have a chance to reconsider its 1989 ruling, In re T.W., in which the court concluded that Florida’s 1980 personal privacy amendment covered the right to abortion even for minors.
Due to appointments by Republican Gov. Ron DeSantis, who signed the 15-week abortion bill into law in April, the court now contains a conservative supermajority that has demonstrated its willingness to overrule its precedents.
“This order complies with the present state of the law in Florida,” Cooper said.
“We all know that Roe v. Wade was reversed about a week ago,” he said, which shifted decisions about abortion to individual states, including Florida.
“That’s what this proceeding is about — it is construing a provision of the Florida Constitution.”
The law forbids abortions past 15 weeks’ gestational age unless a pregnancy endangers the health of the mother or in cases of fatal fetal abnormality, with no exception for rape and incest.
James Percival II, chief deputy solicitor general for the state, indicated an appeal would follow. Under court rules, that would automatically stay enforcement of Cooper’s injunction.
The judge said he is not inclined to try to overrule that stay, reasoning that the state’s higher courts have been striking down such stays of stays by trial judges during the past few years. He suggested taking any request to do that directly to the Florida First District Court of Appeal.
Gov. DeSantis, who signed the bill into law in April, denounced the ruling during a news conference in Sanford.
“These are unborn babies that have heartbeats, they can feel pain, they can suck their thumb, and to say that the state Constitution mandates things like dismemberment abortions — I just don’t think that’s the proper interpretation,” the governor said. “We’ll appeal.”
‘Small piece of good news’
Nikki Fried, Florida’s Democratic agriculture commissioner and a candidate in her party’s primary to run against DeSantis in November, issued a written statement welcoming the ruling.
“This is a small piece of good news, a sign of legal sanity amid a larger ocean of ill-conceived legal opinions handed down from America’s highest court. DeSantis and the authoritarian Republican Legislature deserve this rebuke. Let’s hope that wise legal minds uphold this decision going forward,” Fried said.
“When I am governor, I will codify a woman’s right to have autonomy over her body and health choices into Florida law,” she added.
During a news conference in advance of the ruling, U.S. Rep. Charlie Crist, also seeking the Democratic nomination for governor, called the ban “unconscionable,” adding, “It’s an absolute violation of freedom and basic respect for women.”
Crist — attacked by Fried for alleged squishiness on abortion rights — vowed to veto any legislation restricting abortion rights and to sign an exectutive order “protecting women’s reproductive freedoms on day one.”
In issuing his decision, Cooper showed skepticism about the state’s case and evidence, which attempted to argue the law promotes maternal health by concentrating abortion early in pregnancies, when it is safer, and prevents infliction of pain on fetuses.
Skepticism
During the trial, which featured testimony all day Monday and closing arguments on Thursday, the judge pressed the state’s lawyers about whether the 15-week deadline can fairly apply to pregnancies in which a fetal abnormality is uncovered past that time, or in cases of partner violence and control or rape in which a victim can’t or won’t be able to seek care before the cut-off.
Cooper also expressed doubts about the state’s evidence that fetuses can consciously feel pain before 14 to 20 weeks’ gestational age. The bulk of “mainstream medical associations” place the pain threshold at 24 to 26 weeks, he noted.
That 15-week point is significant because it’s when providers may use the more invasive dilation and curettage procedure, in which surgical instruments are used to extract the fetal matter, Percival said during closing arguments.
White, meanwhile, insisted during her arguments that the courts have long held that being subjected to restrictions on constitutional rights is per se irreparable harm.
The providers are challenging the law as unconstitutional on its face, which, they argue, allows them to seek to enjoin HB 5 on behalf of all women of child-bearing age, rather than requiring pregnant people to sue individually.
Barring a ruling to that effect, there’d be nothing to prevent the state from restricting abortions at as early as five weeks as long as the right to the procedure is at least theoretically open, she said.
“It would make a mockery out of the notion of fundamental rights for the state to be able to restrict abortion rights so broadly and to only have inadequate, piecemeal, as-applied relief be the only possible remedy when every circumstance in which the state would be applying the law would be a violation of the fundamental right under the Florida Constitution,” White said.
She pointed to evidence that abortion is much safer than childbirth.
“Where the state is mandating that women undertake the medically riskier course, it cannot be said that cutting off access at 15 weeks advances an interest in maternal health,” she said.
Note: This report has been updated to reflect reaction, details from closing arguments. Phoenix reporters Laura Cassels and Issac Morgan contributed.
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