Florida’s fight over abortion restrictions — the 24-week threshold that has been in effect for years or the new 15-week limit approved by the Legislature but blocked by a judge on Thursday — may be just getting started.
For the moment, the only sure thing appears to be uncertainty, with the final date in the arc of a pregnancy for getting an abortion toggling back and forth like a light switch.
At this time, the law in effect at Florida’s 57 (as of December 2021) licensed abortion clinics is no abortions beyond 15 weeks because Leon County Circuit Judge John Cooper’s injunction blocking the law has yet to be signed. It will likely be signed, however, on Tuesday or Wednesday after the holiday weekend, said Katie Blankenship, deputy legal director with the American Civil Liberties Union (ACLU) of Florida, one of the plaintiffs in the legal challenge to the law. That should return the standard to 24 weeks.
Then, advocates of the law will undoubtedly appeal, likely triggering an automatic stay and reinstating the 15-week threshold, which advocates of legal abortion are poised to challenge in hopes of lifting the stay.
The injunction issue might go all the way to the Florida Supreme Court.
All that is separate from the battle over the constitutionality of the law (HB 5) itself. The last big Florida abortion court fight — over a 24-hour waiting period — took almost seven years to clear every legal hurdle.
For women whose pregnancies are past 15 weeks, the difference between the old law and the new one is significant. It will determine whether they can remain in Florida for the procedure or have to hit the road to visit a clinic in a different state with looser restrictions, such as North Carolina, or Illinois or New York..
Here is how things look to experts and litigants:
“We will appeal today’s ruling and ask the Florida Supreme Court to reverse its existing precedent regarding Florida’s right to privacy,” said Bryan Griffin, a spokesman for the administration of Gov. Ron DeSantis, referring to the constitutional provision that has undergirded abortion rights in Florida. “The struggle for life is not over.”
Assuming a stay in the Thursday ruling is granted, “we will move very swiftly to request a lift,” said the ACLU’s Blankenship. “We will be ready to go.”
Whether the courts decide to lift the stay will be very important, as it will determine what the law will be as the debate over constitutionality plays out, said Howard M. Wasserman, law professor and associate dean for research and faculty development at Florida International University.
“The stay is what makes all the difference, because if the law is enforceable pending appeal then that will have all the negative effect for the people trying to obtain abortions [after 15 weeks],” Wasserman said. But if the stay is lifted, then HB 5 wont be enforceable while it’s constitutionality is debated in the courts, which could take quite some time.
In 2015, after then-Gov. Rick Scott signed into law the 24-hour waiting period between initial clinic visit and actual procedure, advocates of legal abortion acted quickly and sued for a temporary injunction, which was appealed by the state. After some back and forth in the appellate process, the Supreme Court of Florida upheld the injunction — meaning the law was not enforceable while it’s constitutionality was argued through various levels of the courts.
In April of 2022, the law was finally deemed constitutional and it quickly went into effect.
“Floridians have to unfortunately stay attentive to what the current state of the law is,” said Melba Pearson, director of policy and programs with FIU’s Center for the Administration of Justice, in a written statement to the Herald.
“Make sure to understand where we are right now,” she said. “If a clinic tells you that they cannot give you service, make sure that they are giving you accurate information because things can change quickly.”
How do clinics and providers adapt?
Mayte Canino, Planned Parenthood’s deputy organizing director for Southeast and North Florida, recalled the 24-hour waiting period battle and the limbo it created in her organization’s clinics. She said there were two instances during the seven-year limbo period where clinics had to comply with the 24-hour delay.
“I was told by our staff that they had patients in the waiting room and they were told around 3 p.m. that they would have to send patients home,” Canino said. In order to comply with the law, women who were in the clinic to terminate their pregnancies had to come back the next day at the earliest.
It’s up to the clinics to stay informed and communicate with women there for service what the statute is, while providing them the care they need, she said.
“We have prepared from the beginning. We’re ready,” Canino said.
For now Planned Parenthood clinics plans to refer women close to the 15-week mark to clinics in North Carolina while HB 5 is in effect, but they hope they will be able to resume providing abortion services past the 15-week mark, depending on how the courts rule.
Amid the uncertainty, Canino said, the most important thing is that abortions are still legal in Florida, despite last month’s Supreme Court ruling overturning Roe v. Wade, and providers are giving women the care they need and will assist them — with services or a referral to another state.