Friday, July 1, 2016

Judge blocks parts of Florida's new abortion law

Posted By on Fri, Jul 1, 2016 at 7:54 AM

Siding with Planned Parenthood affiliates, a federal judge late Thursday blocked key provisions of a sweeping new state law that would have barred abortion providers from receiving public funds for other services and required a dramatic increase in inspections of abortion records by health officials.

U.S. District Judge Robert Hinkle's preliminary injunction came just hours before the new law would have gone into effect.

Planned Parenthood affiliates are challenging three portions of the law, approved by the Republican-controlled Legislature and signed by Gov. Rick Scott earlier this year. Hinkle sided with the abortion providers in two of the three components, and ruled that state officials had resolved concerns about a third —- dealing with a change in the definition of the first trimester —- during a hearing in the case on Wednesday.

"We are reviewing the judge's order and exploring our options," Scott spokeswoman Jackie Schutz said in an email Friday.

Planned Parenthood officials lauded Hinkle's order.

"As a result of today's decision, thousands of people across Florida have the peace of mind that comes with knowing they can access essential reproductive health care, such as cancer screenings, birth control, and well-woman exams. This ruling also sends an unmistakable message to politicians to quit playing politics with women's health," Lillian A. Tamayo, president of Planned Parenthood of South, East and North Florida, said in a statement.

In his 25-page ruling, Hinkle noted that there has been a long-held prohibition against using public funds to pay for abortions.

But the Florida law goes further and "refuses to fund services that are wholly unrelated to abortions," Hinkle wrote of the part of the law that would block public funds from going to abortion providers.

"The provision does this based not on any objection to how the funds are being spent —- on things like testing for sexually transmitted disease or dropout prevention —- and not based on any objection to the quality of the services being provided, but solely because the recipients of the funds choose to provide abortions separate and apart from any public funding —- as the Supreme Court has put it, on their 'own time and dime,'" he wrote.

In determining that the defunding provision in Florida's law was unconstitutional, Hinkle relied on the "unconstitutional-conditions doctrine," which means that governments cannot indirectly prohibit —- by withholding funds —- conduct which they cannot directly ban.

The doctrine puts the "defunding provision at here squarely on the unconstitutional side of the line," Hinkle wrote.

"The defunding provision has nothing to do with the state and local spending programs at issue, which address things like testing for sexually transmitted disease and dropout prevention," Hinkle wrote. "The defunding provision is instead an effort to leverage the funding of those programs to reach abortion services. Indeed, the separation between the funding and the condition could not be clearer: nobody has contended that the plaintiffs have done anything in connection with the publicly funded programs that is inconsistent in any way with the goals of those programs. The state's only beef is that the plaintiffs provide abortions."

Planned Parenthood officials said the ban on public funds would cause clinics to lose about $500,000 in state and local funds used for other services, including a dropout prevention program in Palm Beach County.

Hinkle's order bars the state from canceling contracts or grants, or from refusing to renew or allowing to expire contracts or grants that would have continued in the absence of the new law.

Relying in part on a recent U.S. Supreme Court decision that struck down a Texas abortion law, lawyers for the state argued that the ban on using public funds for other services was permissible because it did not impose an "undue burden" on a women's right to an abortion.

But Hinkle disagreed.

"No court has embraced the defendants' position. And there is no logic to it. That a woman has a constitutional right to an abortion does not mean a legislature can impose otherwise-unconstitutional conditions on public funding," the judge wrote.

Hinkle also found problematic the portion of the law that would have required health officials to inspect half of all abortion patients' records, saying the state offered "no legitimate explanation for the requirement, asserting only that the clinics' records are already subject to inspection, and that increasing the number of records that are inspected thus cannot be unconstitutional."

But no other medical providers —- including ambulatory surgical centers, which perform more complicated procedures and have more adverse outcomes —- are not subject to the same scrutiny, Hinkle noted.

"The state has inspected the plaintiffs' clinics for years. The inspections have turned up no violations. For all that is shown by this record, the inspection provision is a solution in search of a problem," Hinkle wrote.

The new law also changes the definition of a first trimester to the period from fertilization through the end of the 11th week of pregnancy. That's a different definition than the state has used in the past, and a departure from the definition used by doctors and other health care providers, according to court documents.

Planned Parenthood had challenged that part of the law, saying it was vague.

But, on Wednesday, Deputy Solicitor General Denise Harle told Hinkle state health officials have not changed their interpretation of the number of weeks and days that make up a first trimester. The issue is important because clinics that perform second-trimester abortions are required to have a different license than those that perform procedures during earlier pregnancies.

Hinkle did not block that part of the law from going into effect, but he warned the state to "take note" that his decision was based on the state's representation that the new definition of first trimester was no different than that which has been used for decades.

Hinkle's Thursday ruling did not deal with the merits of the lawsuit, but granted the preliminary injunction based on the likelihood that those challenging the law will succeed. Briefs on the merits are due later this month.

State Sen. Kelli Stargel, a Lakeland Republican who sponsored the 2016 law, blasted Hinkle's ruling as "a clear infringement on both the Legislature's constitutional authority to appropriate taxpayer dollars, and our responsibility to properly regulate medical facilities."

"Under our constitution, it is the people's elected representatives, not appointed federal judges, who are tasked with making decisions about what entities should be receiving limited taxpayer dollars," Stargel said in a statement. "The people of Florida have consistently elected legislative and executive leaders who oppose the use of taxpayer dollars to fund abortion and today's ruling is yet another example of the pro-abortion movement utilizing the courtroom to fight battles it cannot win at the ballot box."

House Speaker Steve Crisafulli said he trusts Hinkle to "thoroughly examine all of the facts" before the judge issues a final ruling.

"If so, he'll find the actions of the House and Senate are both constitutional and within the legislative branch's authority," Crisafulli, R-Merritt Island, said in an email.

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