Attorney General Ashley Moody’s office late Tuesday requested that a battle about a new 15-week abortion law go quickly to the Florida Supreme Court — and indicated that the state will use a U.S. Supreme Court ruling that struck down Roe v. Wade to help defend the law.
The request was part of a flurry of legal activity after Leon County Circuit Judge John Cooper issued a temporary injunction Tuesday morning to block the law (HB 5), which prevents abortions after 15 weeks of pregnancy, except in limited circumstances.
The state immediately filed a notice of appeal of Cooper’s ruling at the 1st District Court of Appeal. Later, it filed a document requesting that the case be fast-tracked to the Florida Supreme Court, effectively bypassing the appeals court.
“The circuit court has enjoined HB 5, which restricts the small fraction of abortions in Florida that occur after 15 weeks’ gestation and do not meet one of HB 5’s exceptions,” the document said. “The state’s appeal from that decision raises questions of exceptional public importance that warrant immediate resolution by the Florida Supreme Court. This (1st District) Court should so certify this appeal (to the Supreme Court) as soon as practicable.”
The filing also indicated that the state plans to use the U.S. Supreme Court’s June 24 ruling that struck down the decades-old Roe v. Wade abortion-rights decision to help defend the 15-week limit.
Abortion clinics and a physician challenged the 15-week limit under a privacy clause in the Florida Constitution that has long played a key role in bolstering abortion rights in the state. In issuing the temporary injunction Tuesday, Cooper agreed with the plaintiffs that the limit violated the privacy clause.
But in the filing late Tuesday, lawyers in Moody’s office wrote that in the past, “the Florida Supreme Court has relied on the U.S. Supreme Court’s abortion decisions in reasoning that Florida’s privacy clause ‘implicate(s)’ the right to abortion.”
The filing said the U.S. Supreme Court ruling last month in a Mississippi case “rejected the notion that a right to abortion ‘is an integral part of a broader entrenched right,’ whether characterized as a ‘right to privacy’” or as “the freedom to make ‘intimate and personal choices’ that are ‘central to personal dignity and autonomy.’”
“That sea-change in federal law plainly warrants reconsideration of the Florida Supreme Court’s interpretation of Florida’s own constitutional right to privacy, and there will be great uncertainty in Florida until it does so,” lawyers in Moody’s office wrote.
While Cooper issued a temporary injunction against the 15-week law, the injunction was placed on hold when the state filed the notice of appeal at the Tallahassee-based 1st District Court of Appeal. That is because the notice triggered an automatic stay, under an appellate rule.
Attorneys for abortion clinics and physician challenging the law filed a motion Tuesday afternoon asking Cooper to vacate the automatic stay. They pointed, in part, to “irreparable harm” if the 15-week limit remains in effect during the appeal.
“Every day that HB 5 remains in effect, Florida patients in desperate need of post-15-week abortion services are being turned away and forced to attempt to seek abortions out of state, if they are able to do so; to attempt abortions outside the medical system; or to continue pregnancies against their will,” the motion said. “It is unjustifiable to impair plaintiffs’ ability to provide care to Floridians, as courts have held that ongoing violations of constitutional rights support an order to vacate a stay.”
The state opposes vacating the automatic stay, though it had not filed a response to the motion as of Wednesday morning, according to an online docket. Cooper indicated during a hearing last week that he was unlikely to override a stay.
The law was one of the most contentious issues of this year’s legislative session. The abortion clinics and doctor filed the challenge June 1, a month before the law was slated to take effect.
Appellate cases commonly take months, and it has seemed likely the dispute would wind up at the Florida Supreme Court, regardless of how the 1st District Court of Appeal would rule.
While the Florida Supreme Court has relied on the privacy clause in the state constitution to uphold abortion rights, the court has become far more conservative since early 2019. That is because of the retirements of longtime justices Barbara Pariente, R. Fred Lewis and Peggy Quince and the appointment of justices by Republican Gov. Ron DeSantis.
