Appeals court rejects attempt to block 15-week abortion ban, won’t fast-track case to high court

A Florida appeals court, in a split 2-1 split decision, is rejecting attempts to block the state’s new ban on abortions after 15 weeks and also refusing to speed the case up to the state Supreme court.

The Thursday night decision by the First District Court of Appeal means it could be weeks, if not months, before the legal battle over whether the new law violates Florida’s Constitution is finally resolved, meaning it may not be decided before this year’s elections.

Florida legislators earlier this year passed the 15-week ban, which was modeled after a Mississippi law that ultimately led to the U.S. Supreme Court to reverse the 50-year-old Roe v. Wade decision that maintained women had a constitutional right to an abortion.

A group of abortion clinics represented by the American Civil Liberties Union of Florida challenged the law on the grounds that it violated Florida’s voter-approved privacy clause, which had been cited as a reason by the state Supreme Court to block abortion restrictions.

Circuit Court Judge John Cooper ruled that the ban, which does not include exceptions for rape, incest and human trafficking, but does have a exception for the pregnant woman’s life, was likely unconstitutional and issued a temporary injunction. The state, however, immediately appealed the ruling, which prevented the injunction from taking effect.

Cooper did not agree to lift that stay, and it will remain in place while the case continues to be litigated.

Judge Brad Thomas, who wrote the opinion, suggested that those challenging the law — which also includes a doctor — could not show “irreparable harm” to justify having the injunction take effect now. He pointed out that the lawsuit was not being pursued by a pregnant woman seeking an abortion. 

Thomas, who was appointed by former Gov. Jeb Bush, wrote that “to be clear then, appellees have not asserted a violation of their own constitutional rights. Instead, they seek to vindicate the privacy rights of their patients.”

He added that “appellees’ claims are based on the allegation that they are in doubt regarding their ability to provide abortions, not that they themselves may be prohibited from obtaining an abortion after a certain time. Thus, the trial court had no lawful authority to issue a temporary injunction.”

The ruling also rejected an attempt by Attorney General Ashley Moody to fast-track the case to the state Supreme Court. Those challenging the law were opposed to bypassing the appeals court. Thomas did not go into detail as to why the court rejected the request for certification to the higher court.

In a dissenting opinion, Judge Susan Kelsey said that the decision went against previous precedents by the state Supreme Court that even a “minimal” loss of a right to privacy causes “irreparable injury.” She said raising questions whether the clinics had a right to challenge the law was “wrong and irrelevant” to the underlying case.

“At this procedural juncture, I believe precedent compels us to reverse the trial court’s order refusing to vacate the automatic stay,” wrote Kelsey, who was appointed to the court by then-Gov. Rick Scott. “I would certify this order to the Florida Supreme Court for its immediate resolution.”

The appeals court gave the two sides an additional 15 days to provide any further briefing or consideration, before it renders a final ruling on the temporary injunction. 

The  ACLU, the Center for Reproductive Rights, Planned Parenthood Federation of America, and the law firm Jenner & Block issued a statement calling the ruling a, “cruel denial of Floridians’ clear, constitutional, and fundamental rights.”

“Not only does it ignore the fact that patients have relied on the right to access abortion in the state for decades, but it undermines the values that Floridians have consistently affirmed at the ballot box,” the organizations said in a statement to Florida Politics. “Floridians deserve better from their elected leaders. We refuse to let this attack on Floridians’ state constitutional rights forever change the course of their lives and futures. We’re determined to keep fighting. If you need abortion care and are worried about how this ban will affect you, please reach out to your local abortion clinic or fund to learn about your options.”

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