Last week, a Florida appeals court reversed a ruling that declared a 24-hour waiting period for abortion unconstitutional. The appeals court found that the lower court’s decision in State of Florida v. Gainesville Woman Care should be reversed and remanded back to the lower court.
The ruling comes nearly four years after former Republican governor Rick Scott signed the waiting-period abortion law. This is good news for Florida pro-lifers, and if this decision holds, it’s one way they can bolster the case for advocating a medical standard of care.
The case is not yet resolved, however, and the months ahead are important. A Tampa Bay Times subtitle summed up this case accurately: “The 24-hour waiting period case could eventually become a key test for the Florida Supreme Court, which has historically backed abortion rights but is now dominated by conservative justices.”
Fighting for a 24-Hour Waiting Period
Florida’s particular abortion waiting-period law has always courted controversy because it pits the medical standard of care against liberals’ sacrosanct issue, abortion. The latest ruling demonstrates this.
In the 2-1 opinion, Judge Timothy Osterhaus, who wrote for the majority, said, “Rather than singling out and burdening abortion procedures with arbitrary requirements, the state’s evidence indicates that the 24-hour Law brings abortion procedures in Florida into compliance with medical informed consent standards and tangibly improves health outcomes for women.” Judge Harvey Jay joined Osterhaus in his opinion. Both are Scott appointees.
The state of Florida argued that a 24-hour waiting period is necessary for pregnant women to make an informed, measured decision and then provide consent to doctors about such a life-altering procedure. In its evidence, the state included testimony from two medical doctors who also agreed “a 24-hour waiting period is necessary to comply with the accepted medical standard of care for informed consent.” Apparently, the state’s evidence during the first trial wasn’t nearly compelling enough, so it bolstered its evidence during the appeal, which convinced the judges to rule in the state’s favor.
Still, Judge James Wolf dissented and agreed with the lower court’s decision that the 24-hour mandated waiting period was unconstitutional. “Discouraging people from exercising a constitutionally protected right does not constitute a compelling state interest,” he wrote. Wolf was also appointed by a Republican governor, Bob Martinez.
In 2018, Leon County Circuit Court Judge Terry Lewis, a Democratic governor’s appointee, ruled Florida’s 24-hour waiting period was unconstitutional three years after Scott signed House Bill 633, “Informed Patient Consent,” into law. At the time, the House passed it by a significant margin and the Senate by 26-13. The legislation required that a woman who wanted an abortion would need to seek a consultation at least 24 hours prior to her procedure, provided she had been informed of the nature and risks of having an abortion.
Although Chief Circuit Judge Charles Francis issued a temporary injunction just before the law went into effect (it was lifted), the law was not that unusual. At the time, 25 other states had similar 24-hour waiting-period requirements. Still, that didn’t stop the American Civil Liberties Union of Florida and the Center for Reproductive Rights from filing a lawsuit immediately, claiming the law violated women’s right to privacy, which eventually led to the court ruling last week.
The waiting-period law has not been enforced since the Florida Supreme Court issued an injunction in 2017, and it will remain that way until it is resolved once and for all.
Abortive Mothers Deserve the Same Care Standards
Often, pro-choice advocates decry laws such as the 24-hour waiting period as obvious measures to delay or stop abortions. This is true, but only partially so.
As with regulations for facilities that provide abortions and even “heartbeat” bills, measures like this serve at least two purposes: They are litmus tests for liberals to defend a Roe v. Wade that appears to be increasingly as bad a precedent as Justice Antonin Scalia always said it was. Tese laws also bolster the idea that conservatives — indeed, all lawmakers — should be concerned with the standard of care for mother and baby, and the legal rights of mother and baby, regardless of whether abortion is in the picture.
“Abortion is a life-altering decision, and no woman should be rushed or pressured into it. Abortion advocates, with the help of the ACLU, sought to strike down this commonsense protection for women, even though the U.S. Supreme Court already upheld a similar law. The appeals court noted evidence from medical experts that the standard of care for significant, non-emergency medical procedures is that they are not and should not be done on a drop-in basis,” Alliance Defending Freedom legal counsel Denise Harle said in a statement.
Indeed, standard of care was precisely the issue Osterhaus wrote about in his opinion.
Among the remaining unresolved issues is the parties’ dispute about the informed consent medical standard of care. Appellees’ summary judgment motion asserted that the 24-hour Law deviates from the accepted standard of medical care in Florida by requiring the 24-hour delay and an unnecessary visit to a physician. But the State produced conflicting evidence from medical experts that the absence of such a decision-period after receiving information about the nature and risks of an abortion procedure and the procedure itself falls below the accepted medical standard of care. If the State’s experts prove correct, that the 24-hour Law brings Florida in-line with the informed consent standard of care, then the law would pass muster under the Florida Supreme Court’s decision approving informed consent in the abortion context.
According to Guttmacher, at least 34 states have 24-hour waiting-period laws for abortion. Whether Florida will be the 35th state remains to be seen. Hopefully, the state’s case will be compelling enough to lift the current injunction so women can make an informed decision about abortion — one many hope results in choosing life instead.