Thursday, June 30, 2016

Federal judge seems leery about Florida's new abortion law

Posted By on Thu, Jun 30, 2016 at 10:51 AM

A federal judge seemed skeptical Wednesday about a sweeping new Florida abortion law being challenged by Planned Parenthood affiliates, who are seeking for the law to be blocked from going into effect on Friday.

During a hearing Wednesday morning, U.S. District Judge Robert Hinkle repeatedly hammered a lawyer for the state about the law, which would ban abortion providers from receiving taxpayer money and require health officials to inspect half of all abortion records each year.

One heated exchange involved Hinkle grilling Deputy Solictor General Denise Harle about the constitutionality of banning funds unrelated to providing abortions, and the potential impact that would have on Planned Parenthood affiliates.

"You can't take action based on the plaintiffs' exercise of a constitutional right," Hinkle said at one point.

Harle insisted that Florida lawmakers intended to distance the state from having anything to do with abortion, which she repeatedly referred to as a "controversial" activity.

The law was an "attempt to disengage from a controversial activity" that "has become more controversial" over time, Harle said.

Lawyers for Planned Parenthood argue that three parts of the new law, passed by the Republican-controlled Legislature and signed by Gov. Rick Scott earlier this year, "punish, harass and stigmatize the state's abortion providers for their and their patient's exercise of constitutional rights."

The complaint, in part, targets a section of the law that seeks to prevent state agencies, local governments and Medicaid managed-care plans from contracting with organizations that own, operate or are affiliated with clinics that perform elective abortions. While government agencies are already barred from funding elective abortions, Planned Parenthood argues that the new law would prevent clinics from receiving money to provide other health services for women, such as pap smears, pregnancy testing and screening for sexually transmitted diseases.

The law would cost Planned Parenthood affiliates about $500,000 a year. Because of the law, health officials throughout the state have already decided not to renew contracts that begin to expire at the end of the current fiscal year on June 30. The programs include those that are funded by county funds and are unrelated to abortion, such as one in Palm Beach County aimed at drop-out prevention for teenage girls.

"Patients who are served by these programs will be forced to leave their trusted care," Planned Parenthood Federation of America lawyer Carrie Flaxman told Hinkle Wednesday.

Barring abortion providers from receiving the money "violates equal-protection" constitutional guarantees, Flaxman said.

"There is nothing rational about this," she said, arguing that the ban on allowing clinics that perform the procedures to receive money for other programs is "based solely on animus toward abortion."

"The purpose of this is to force plaintiffs to give up abortions or punish them for providing" abortion services, Flaxman said, adding that abortion providers will continue to provide the procedure regardless of how the court deals with the new law.

Harle argued that lawmakers aren't trying to shut down abortion clinics.

Instead, the state "doesn't want to be associated with entities that are engaged in this controversial activity ... and suck the state into that," Harle said.

But Hinkle sharply questioned Harle about the constitutionality of de-funding the clinics, likening it to canceling contracts with African Americans.

"You can de-fund the activity. You can't de-fund the provider," Hinkle said.

Flaxman said Florida's law is clearly unconstitutional.

"You cannot deprive an entity of funds because of constitutionally-protected conduct they engage in with other funds. That is precisely what this law does, and it is precisely why we have argued both in the Legislature and here in the courts that it is unconstitutional," Flaxman told reporters after the hearing. "It is a gross invasion of the privacy of women seeking abortions in the state, and it is wholly unnecessary and untethered of any need for the requirement, as we argued in court this morning."

Wednesday's hearing came two days after a seminal U.S. Supreme Court ruling in a Texas abortion case. In the 5-3 decision, the Supreme Court ruled that states cannot impose "needless barriers" to women's access to abortions.

Monday's decision did not play a role in Florida's case regarding the new state law, at least on the surface.

The Planned Parenthood complaint, filed earlier this month, also challenges part of the Florida law that would require the state Agency for Health Care Administration to inspect at least 50 percent of abortion-clinic patient records each year. Planned Parenthood contends the requirement violates equal-protection rights because it unjustifiably treats abortion clinics different from other types of health-care facilities, such as ambulatory surgery centers.

Hinkle hammered Harle about that provision in the law, asking if the state had consulted auditors about the sample size before settling on the requirement that half of all abortion records be inspected to ensure that abortion providers are complying with the law.

"Do you think there's an auditor anywhere who would say that number is 50 percent, or even 25 percent?" the judge asked.

Harle said the number was "reasonable and rational," which seemed to irk Hinkle.

"You think it's rational to say ... you need to do 50 percent?" Hinkle wanted to know. "What other provider is audited at 50 percent?"

"I don't know if there is," Harle responded.

In an op-ed sent to media outlets on Wednesday, Sen. Kelli Stargel —- one of the sponsors of the new law —- maintained that its provisions are intended to protect women.

"It is offensive to me that here in Florida we set standards for minimally invasive outpatient surgery, but do not apply those same sound and widely-accepted medical standards to safeguard the health of women undergoing invasive abortion procedures. This is far from the first example of pro-abortion doublespeak," wrote Stargel, R-Lakeland.

Hinkle did not indicate when he would rule on Planned Parenthood's request for an emergency injunction, but the group's lawyers are hoping he will make a decision before the new law goes into effect on Friday.

Meanwhile, the Florida Supreme Court has put on hold a 2015 law that required a 24-hour waiting period before women can have abortions. The court has not set a date yet for arguments in the case.

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