I’ve been watching a high-profile court case this week in Tallahassee where Florida Planned Parenthood groups and others have sued the state over its 15-week abortion ban.
Those organizations prevailed on Thursday — for now.
Judge John C. Cooper gave a verbal ruling in court Thursday saying that Florida’s 15-week ban was unconstitutional on its face because it violates Florida’s explicit right to privacy, which is more robust than the federal constitution’s implied right to privacy, and stands even though Roe v. Wade was overruled last Friday.
“This order complies with the present state of law in Florida,” Cooper said in court on Thursday.
But the case is far from decided.
For one thing, Cooper’s blocking of the new law won’t be binding until it’s in writing. And, he said Thursday, he probably won’t get the order finished until early next week.
But the new law goes into effect today.
So any abortions after 15 weeks will at least be banned over the weekend.
For another thing, attorneys representing the state have already said they are going to appeal the ruling. When they do that, Cooper’s halting of the new law will, well, be halted too, as a matter of process. Attorneys representing Planned Parenthood, the plaintiffs, said they would immediately ask the court, either Cooper himself or where the case gets appealed, to lift this automatic procedural blocking of his blocking. But that will still take time.
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So, for now, abortions after 15 weeks are in murky territory. And the issue is personal for me.
Even though I am married, and I want to start a family, I went back on birth control about two months after Texas' six-week ban went into effect last year, in anticipation of Florida doing something similar.
Pregnancy could cause me to get cancer again, since my cancer fed on sex hormones like estrogen, which would surge during a pregnancy. And, given how limiting the new restrictions are, I didn’t have confidence that I would be able to get an abortion if I needed one.
I still don’t have this confidence, even after Thursday's ruling, because the battle isn’t over.
It feels like I’ve had the option to get pregnant taken away from me. It is an enormous loss.
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Shortly after the decision Thursday, Bryan Griffin, a spokesperson for Gov. Ron DeSantis, wrote to me by email they believe the law "will ultimately withstand all legal challenges.
“The Florida Supreme Court previously misinterpreted Florida’s right to privacy as including a right to an abortion, and we reject this interpretation. The Florida Constitution does not include–and has never included–a right to kill an innocent unborn child. We will appeal today’s ruling and ask the Florida Supreme Court to reverse its existing precedent regarding Florida’s right to privacy."
Griffin added: "The struggle for life is not over.”
He could very well be right about what the Florida Supreme Court intends to do.
Much like the U.S. Supreme Court, the state Supreme Court now leans heavily conservative, largely thanks to appointments made by DeSantis. The newly reconstituted Court in 2020 reversed a landmark state Supreme Court ruling on Florida’s death penalty made just four years earlier.
Attorneys representing the state in the 15-week abortion ban case cited this overturning of precedent on the state level and the overturning of Roe on the federal level as reasons for why Florida’s constitutional privacy protection may not stand for long.
“These developments call into question the continuing viability of Florida’s abortion precedents or at a minimum highlight the State Defendants’ likelihood of prevailing on their argument that the right to privacy cases should be revisited,” wrote the state’s attorneys in their reply to Planned Parenthood’s complaint regarding the new law.
Attorneys for Planned Parenthood and other plaintiffs were asked about that state strategy by reporters on a call after the ruling Thursday.
“I think what's important to remember is that under the existing law, this ban is plainly unconstitutional,” said Whitney White, an attorney representing the plaintiffs. “We know that Floridians strongly support abortion rights, and there is a clear history of Floridians taking steps to protect abortion rights under their state constitution.”
White said Floridians amended the state constitution in 1980, after the implied federal right to privacy was established in Roe, to “provide the strong and broad protections for individual privacy rights, including the right to terminate a pregnancy that the court’s ruling today is based on.”
White noted how in 2012, Florida voters rejected a ballot initiative sponsored by Republicans that would have rolled back those broad privacy rights in the constitution relating to abortion.
“There’s no reason in this case for the courts to recede from that very clear history, both under the Florida Supreme Court’s own precedents, as well as in terms of the clearly expressed sovereign will of the people,” White said. “So we will continue to push forward and fight to ensure that the state protections that are guaranteed in the constitution remain protected under Florida law.”
In his verbal ruling Thursday, Cooper agreed with White’s assessment. He said the federal overturn of Roe had little impact on his decision because the Florida Supreme Court has repeatedly upheld that Florida’s explicit right to privacy protects a pregnant person’s constitutional right to seek an abortion until 24 weeks, when Roe determined a fetus could live outside the womb.
Given that past precedent, Cooper said, the state has a heavy burden in proving that it must change the law on abortions for some essential reason — known as a compelling interest — and that it is doing so through the least restrictive means.
Florida had previously banned nearly all abortions after 24 weeks.
After the passage of House Bill 5 during this year’s legislative session, which DeSantis signed in April, the new law would ban nearly all abortions after 15 weeks. There are no exceptions for rape or incest, but there are narrow exceptions for when a fetus will die immediately upon delivery, or when the mother’s life is at risk.
The exception for when a mother’s life is at risk could technically apply to me, but it's so narrow that I'm not sure it would. Detecting cancer requires scans, and some of those scans are harder to get while pregnant.
And, to qualify for an abortion after 15 weeks, I would likely have to get sign-off from two doctors, another barrier. That barrier also existed with the previous law, but it wasn't an issue until 24 weeks, which is much later in pregnancy.
All of these factors make me nervous, very nervous, that if I really did get cancer sometime after 15 weeks, which is only four months into a pregnancy, that my abortion and my treatment would ultimately be delayed.
Delaying treatment could kill me. It's hard to overemphasize how scary that prospect is.
The sum total of all these factors is that under the previous law, I was considering risking it, trying to get pregnant and then seeing how it played out because I wanted a baby that badly.
But I simply cannot convince myself to get pregnant under the 15-week ban.
Problems like mine are part of the reason Cooper made the ruling he did.
"Here, the asserted interests by the state, as outlined in its argument today, are not legally sufficient to justify the statutory ban,” Cooper said on Thursday.
So what were those state interests?
Over the course of two days, on Monday and Thursday, attorneys representing Florida made little effort to take the constitutional right to privacy head on. Instead, they laid out a case that the state needed to limit abortions to 15 weeks to protect both the mother and the fetus.
The state called on two experts who work for an anti-abortion organization who made two basic claims: 1. People who seek abortions after 15 weeks face greater harm, and therefore, need to be encouraged to have abortions earlier; and 2. Fetuses may feel pain by 15 weeks and, so, the state must protect them from the abortions.
Cooper said on Thursday that he ultimately found these arguments unconvincing, noting the state experts were out of step with most major medical organizations in the United States.
“I find the testimony of the plaintiff’s witnesses is more credible, and rebuts that of the defendant’s witnesses,” Cooper said Thursday.
Plaintiff expert Dr. Shelly Tien, an abortion provider for Planned Parenthood in Jacksonville, and a party to the case, argued that a pregnant person's health would be undermined, not helped, by the 15-week ban. She said that when people seek abortions later, they do so for a number of reasons that are unlikely to change under the more-restrictive ban. These reasons include having to overcome hurdles like poverty, domestic violence and problems with pregnancies that they don’t discover until later.
And, even though abortions are more dangerous later, they are still much safer than carrying a pregnancy to term, according to Tien.
Tien also argued that fetuses cannot feel pain before at least 24 weeks because they simply aren’t developed enough. Her view is supported by organizations such as the American College of Obstetricians and Gynecologists and the American Medical Association.
The state spent less time on a third argument, but it did also try to establish that fetuses are human beings as soon as they are conceived.
“I think the conclusion that life begins at the instant of sperm-egg fusion is scientifically incontrovertible,” said Dr. Maureen Condic on behalf of the state on Monday.
Condic is an associate professor of neurobiology and an adjunct associate professor of pediatrics at the University of Utah. She is also an associate scholar with the Charlotte Lozier Institute, a research and educational arm of Susan B. Anthony Pro-Life America, which works to elect anti-abortion candidates.
Under cross-examination on Monday, Condic also said she believes abortion is the killing of a "full and complete" human being “albeit at an immature stage of the lifespan.”
Cooper wondered aloud during Condic's assessment of when life begins as to why it was relevant for this case. An attorney for the state replied that they were creating a record for appeal.
So, this week, the state performed for two audiences: Cooper and the state Supreme Court. The latter may prove to be much more interested in Condic's theories.