Injunction blocking new Florida abortion law short-lived, as state appeals

Florida’s 15-week abortion ban was temporarily halted Tuesday morning and then quickly restored after lawyers for the state appealed a Leon County circuit judge’s injunction he promised last week.

In a 68-page order, Circuit Judge John C. Cooper said he was bound by precedent set by the Florida Supreme Court, which ruled in 1989 that Florida’s right to privacy, enshrined in the state Constitution, protected the right to an abortion. Gov. Ron DeSantis is trying to overturn that precedent.

“This Court must follow the Florida Supreme Court’s precedents on the right to privacy as those precedents currently exist, not as they might exist in the future,” Cooper wrote.

The injunction was in effect less than an hour, however. The state quickly appealed Cooper’s injunction, automatically nullifying it.

For now, that means that House Bill 5, which DeSantis signed in April, remains the law in Florida.

Under House Bill 5, which took effect Friday, nearly all abortions are banned after 15 weeks since a person’s last menstrual period. People can still obtain an abortion after that cutoff if their health is threatened or if their baby has a “fatal fetal abnormality.”

The legislation appeared to run afoul of Florida’s well-established right to privacy, considered by advocates to protect Floridians’ right to abortion regardless of whether the U.S. Supreme Court overturned Roe v. Wade, which established a constitutional right to an abortion. (The federal court overturned Roe v. Wade last month.)

In 1980, Florida voters amended the state Constitution to establish that “every natural person has the right to be let alone and free from governmental intrusion into his private life.”

The amendment did not specifically mention abortion, but nine years later, the Florida Supreme Court said that the right to privacy “clearly” included “a woman’s decision of whether or not to continue her pregnancy.”

Subsequent Florida Supreme Court decisions affirmed that the right to privacy included abortion, and that any law limiting abortions before “fetal viability,” or about 24 weeks, was considered unconstitutional.

READ MORE: For Florida women seeking an abortion, the rules are muddy — and may be for a while

Since those decisions, however, Florida’s Supreme Court justices have become more conservative, and DeSantis said last week that his goal is to get them to overturn those past decisions.

“The Florida Supreme Court previously misinterpreted Florida’s right to privacy as including a right to an abortion, and we reject this interpretation,” his spokesperson said Thursday.

Cooper wrote on Tuesday that until then, he was bound by the court’s previous rulings, which required the state to prove a “compelling state interest” to override the right to privacy.

Lawyers for the state never showed that compelling interest during a day and a half of testimony and their witnesses weren’t considered as credible as those presented by Planned Parenthood and other abortion providers who sued to stop the law, Cooper wrote.

The state argued that the bill would protect the health of pregnant women, since the risk of medical complications from abortions increases later in pregnancy.

READ MORE: Florida advocates of legal abortion cheer rare victory. Foes say they’ll win in the end

But experts for Planned Parenthood and the other plaintiffs noted that the mortality risk from abortion is “extremely low” compared to other outpatient procedures, such as colonoscopies and plastic surgery. And they said the risk of giving birth is 14 to 15 times higher than the risk of receiving an abortion.

An expert presented by the state, Dr. Ingrid Skop, a senior fellow with the anti-abortion research group Charlotte Lozier Institute, dismissed the data on abortions from U.S. medical associations because they have “a ‘pro-choice’ bias,” Cooper wrote.

Lawyers for the state also argued that the state had an interest in preventing the pain of the fetus, but the state offered “no evidence” that fetuses feel pain at 15 weeks, Cooper wrote, beyond the testimony of Maureen Condic, a University of Utah professor and scholar at the Charlotte Lozier Institute.

Condic’s “opinion runs contrary to credible and scientifically supported evidence,” Cooper wrote, and he gave her testimony “little to no weight.”

Cooper noted that Condic testified that a fetus can feel pain at 14 weeks, which undermines the state’s argument that the 15-week ban was meant to protect fetuses from pain.

In a statement following Tuesday’s flurry of legal activity, the plaintiffs said in a statement that the legal fight was not over.

“The trial court correctly recognized this law as a blatant violation of Floridians’ state constitutional rights, and we’re determined to get it blocked for good,” they said.