Appeals court: Florida abortion law to remain in place

by | Jul 22, 2022

  • The Florida 1st District Court of Appeal ruled by a margin of 2-1 that the state’s 15-week abortion law will remain in place through the legal process of challenges and beyond
  • In early July, Judge John Cooper placed a temporary injunction on the law, claiming that it violates protections granted in the state Constitution
  • The state immediately challenged, causing the law to go into effect. Plaintiffs then filed an emergency seeking a hold on the law through the appeals process, making it unenforceable again 
  • With the Court of Appeal’s denial of the hold, Florida’s abortion law is set to go into effect 

Florida’s 15-week abortion will remain in effect, per the ruling of the state’s 1st District Court of Appeal. The law, signed into law by Gov. Ron DeSantis in April, has faced a series of legal challenges and motions for injunctions and holds.

The court decided 2-to-1 on the case with judges Brad Thomas and Stephanie Ray comprising the winning decisions, ruling that clinics and doctor were not entitled to a temporary injunction to block the law.

Leon County Judge John Cooper in early July declared the law unconstitutional, claiming that it violates the state constitution’s privacy clause and “does not satisfy the threshold” of Florida Supreme Court decisions upholding the state’s legal right to abortion.

The ruling placed a temporary injunction on the law, preventing it from being enforced within the state.

“Florida passed into its constitution an explicit right of privacy that is not contained in the U.S. Constitution,” Cooper said. “The Florida Supreme Court has determined in its words ‘Florida’s privacy provision is clearly implicated in a woman’s decision on whether or not to continue her pregnancy,” Cooper said. “In other words, on the issue of abortion, the Florida Supreme Court has decided that women have a privacy right under the state constitution to not have that right impacted up to 24 weeks at least.”

The state, led by Attorney General Ashley Moody, immediately appealed the injunction, enabling the law to become active during the appeals process. Following the state’s appeal, plaintiffs filed an emergency motion in an attempt to have a hold placed on the actualization of the law.

In the deciding verdict, Thomas and Ray adjudicated that abortion clinics and a doctor challenging the law were unable to demonstrate irreparable harm as a result of the state’s decision to ban abortion procedures after 15 weeks of pregnancy.

“A temporary injunction cannot be issued absent a showing of irreparable harm. As to appellees (the abortion clinics and doctor) themselves, any loss of income from the operation of the law cannot provide a basis for a finding of irreparable harm as a matter of law. And the parties do not dispute that the operation of the law will not affect the majority of provided abortions,” wrote the pair of judges in their joint opinion.

Judge Susan Kelsey was the lone dissenting vote, referring to a precedent set in prior state rulings.

“In the specific context of abortion regulation, the Florida Supreme Court has held that even ‘minimal’ loss of the constitutional right of privacy is per-se irreparable injury,” Kelsey wrote. “We are therefore required to presume irreparable harm” and to grant the request to vacate the stay.”

Cooper’s initial decision to place the injunction was predicated on a section of the state constitution that includes a defined right to privacy, while the clause does not specifically reference abortion.

Article I, Section 23 of the state Constitution states that “every natural person has the right to be left alone and free from governmental intervention into the individual’s private life, save as otherwise specified herein.” Cooper stated in his decision that the state Constitution “contains a written right to privacy,” of which abortion he ruled that protection falls.


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