In an opinion released Thursday, a majority of the Florida Supreme Court agreed a state law requiring a 24-hour waiting period before women can get an abortion interferes with women’s right to privacy.
In the case, Gainesville Woman Care, LLC, v. Florida, the court had to determine whether the state or petitioners must present a higher degree of proof when dealing with the right to privacy, which is fundamental in Florida’s Constitution. In a 4-2 decision, the Florida Supreme Court upheld the lower court’s decision, reaffirming a temporary injunction on the Mandatory Delay Law, which required the 24-hour wait time.
The court found the law likely unconstitutional because it violates Florida’s fundamental right of privacy. The case will now go back to the First District Court of Appeal, where the court must make a decision in line with the Florida Supreme Court’s opinion.Florida’s Mandatory Delay Law has been contested since it was approved in June 2015.
The legal team representing the Gainesville-based Bread and Roses Women’s Health Center and the nonprofit organization Medical Students for Choice consisted of attorneys from the American Civil Liberties Union and the Center for Reproductive Rights, among others.
According to Thursday’s opinion, the court needed to decide what procedures would be used to deal with the case, UF law professor Danaya Wright said.
“This is an interesting case because it’s a very procedural case,” Wright said. “Either the state has to prove it or the opponents to the law has to have a compelling reason. Depending on who has the burden of proof, that party has a harder time meeting the requirements.”
The court held that it was up to the state to provide a compelling reason to prove the 24-hour wait period would be helpful, she said. Now, the state can try to argue against the block. With the Florida Supreme Court already suggesting the law is likely unconstitutional, Wright said she has a hard time believing the state will be able to prove the law is beneficial and doesn’t infringe on privacy rights.
Previously, the court has broadly interpreted privacy rights in Florida. As a result, any laws regarding privacy rights face heavy scrutiny.
“Today we make clear, in Florida, any law that implicates the fundamental right of privacy, regardless of the activity, is subject to strict scrutiny and is preemptively unconstitutional,” the court’s opinion reads.
Whitney Mutch, a volunteer for the Gainesville women’s center, Bread and Roses, said in the weeks after the law was enacted, she saw how the law burdened patients, who had to take more time off from work to meet the required 24-hour waiting period.
“To me, it seemed like a huge burden on the Bread and Roses staff as well,” she said, adding that wait times for patients increased, as well as the amount of protesters the patients and the center’s staff faced.
Rick Johnson, a Tallahassee attorney who represented the two organizations that brought the suit against the state, said he received an email from the court notifying him of the opinion a few hours after it was released Thursday.
“It’s a big victory,” he said. “The Supreme Court was exactly right and they did an excellent job of explaining what the law was.”
Johnson, who said he’s been involved in state cases concerning reproductive rights since the 1980s, said there is a slim chance the case will go much further.
“The Supreme Court hasn’t really left room for the 24-hour waiting period to survive,” he said.
In a brief filed July 2016, the state argued that the 24-hour waiting period did not place a burden on privacy rights.
“Because the new law does not restrict the right to choose abortion, it does not implicate the right of privacy,” state officials argued. “Florida’s privacy right ‘was not intended to be a guarantee against all intrusion into the life of an individual.’”
State officials could not be reached for comment.
Wright said the state now faces the responsibility of having to prove the law would improve the decision making of those seeking abortions in a way that doesn’t interfere with privacy rights. With the state’s lack of evidence to support their position, she said it’s unlikely.
“Given that there has been no apparent attempt on the state to put forward any evidence, it seems hard for me to imagine that now, going back down to trial they could come up with some,” she said. “But I don’t know, maybe they will.”