Appeals court tosses injunction against Florida's 15-week abortion ban

click to enlarge Appeals court tosses injunction against Florida's 15-week abortion ban
Dave Decker

An appeals court Wednesday tossed out a temporary injunction that would have blocked a new Florida law preventing abortions after 15 weeks of pregnancy.

A panel of the 1st District Court of Appeal had signaled last month that it would reject the temporary injunction issued by Leon County Circuit Judge John Cooper, who said the 15-week limit violated a privacy right in the Florida Constitution.

Wednesday’s one-paragraph main ruling, written by Judge Brad Thomas and joined by Judge Stephanie Ray, cited a July 21 decision by the panel that allowed the 15-week limit to remain in effect as legal battling continued. Judge Susan Kelsey dissented Wednesday, as she did in the July 21 decision.

The Republican-controlled Legislature passed the 15-week limit this year amid a national debate about abortion rights. A group of abortion clinics and a doctor filed the lawsuit June 1, arguing that the limit violated a privacy clause in the Florida Constitution that has long played a key role in bolstering abortion rights in the state.

Cooper agreed with the plaintiffs, issuing a temporary injunction July 5. The state quickly appealed, which, under legal rules, placed an automatic stay on the temporary injunction.

The appeals court’s July 21 decision kept the stay in place, while also making clear that the panel likely would reject the underlying temporary injunction. Thomas wrote Wednesday that attorneys for the plaintiffs and the state did not provide additional briefs or arguments after the July 21 decision.

A key issue has been whether the plaintiffs could show “irreparable harm” from the near-total ban on abortions after 15 weeks.

In last month’s decision, Thomas wrote that “a temporary injunction cannot be issued absent a showing of irreparable harm. As to appellees (the abortion clinics and doctor) themselves, any loss of income from the operation of the law cannot provide a basis for a finding of irreparable harm as a matter of law. And the parties do not dispute that the operation of the law will not affect the majority of provided abortions.”

Also, Thomas wrote that the plaintiffs “cannot lawfully obtain a temporary injunction as they cannot assert that they will suffer irreparable harm unless the trial court preserves the status quo ante. … 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.”

In Wednesday’s ruling, he briefly alluded to the issue, writing that the plaintiffs “could not assert irreparable harm on behalf of persons not appearing below” in circuit court.

In her dissent last month, Kelsey argued that the court should vacate the stay that allowed the abortion limit to remain in effect. She cited that opinion Wednesday as she again dissented.

“In the specific context of abortion regulation, the Florida Supreme Court has held that even ‘minimal’ loss of the constitutional right of privacy is per-se irreparable injury,” Kelsey wrote last month, She added, “We are therefore required to presume irreparable harm.”

Attorneys for the clinics and the doctor asked the Florida Supreme Court on Friday to vacate the stay and pointed to irreparable harm.

“Every day that HB 5 remains enforceable, Florida patients in desperate need of post-15-week abortion services are being turned away and forced to attempt to seek abortions hundreds of miles or more out of state, to attempt abortions outside the medical system, or to continue pregnancies against their will,” a 30-page emergency motion said.

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