Attorneys for seven abortion clinics and a doctor filed an emergency motion late Wednesday asking the Florida Supreme Court to halt a new law that prevents abortions after 15 weeks of pregnancy.
The motion was the latest twist in a three-month legal battle over the law (HB 5), which the Republican-controlled Legislature and Gov. Ron DeSantis approved this year amid a national debate about abortion rights.
Leon County Circuit Judge John Cooper on July 5 issued a temporary injunction against the law, ruling that it violated a privacy clause in the Florida Constitution that has bolstered abortion rights in the state for more than three decades. But a panel of the 1st District Court of Appeal overturned the temporary injunction, effectively allowing the 15-week abortion limit to be in effect.
The emergency motion Wednesday, in part, seeks a stay of the appeals court’s decision. If granted, the motion would put the 15-week abortion law on hold while the Supreme Court considers the underlying issues about the temporary injunction.
“Granting plaintiffs’ requests to stay the First DCA’s decision and allow the injunction to take effect would restore the status quo while litigation continues and allow Floridians to resume exercise of their constitutional right to decide whether to carry a pregnancy to term or obtain a pre-viability abortion — a right that this (Supreme) Court has repeatedly recognized is encompassed by the Florida Constitution’s right of privacy,” said the brief, filed by attorneys for the American Civil Liberties Union, Planned Parenthood, the Center for Reproductive Rights and the national law firm of Jenner & Block.
The clinics and the doctor, Shelly Hsiao-Ying Tien, filed the lawsuit June 1. After Cooper issued the temporary injunction, attorneys for the state quickly appealed to the 1st District Court of Appeal — a move that, under court rules, automatically placed a stay on the injunction.
A divided panel of the appeals court in July refused to lift the stay on Cooper’s ruling and followed up last week by overturning the temporary injunction. The attorneys for the clinics and the doctor appealed both of those decisions to the Supreme Court and wrapped the issues together in the emergency motion Wednesday night.
The appeals court’s 2-1 decision last week to overturn the temporary injunction was based on the rationale it used in refusing to lift the stay July 21. A key issue has been whether the plaintiffs could show “irreparable harm” from the near-total ban on abortions after 15 weeks.
In the July 21 decision, appeals-court Judge Brad 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.”
Thomas was joined in the decision by Judge Stephanie Ray, while Judge Susan Kelsey dissented.
In the emergency motion, attorneys for the plaintiffs argued that the appeals court’s conclusions about irreparable harm conflicted with past Supreme Court cases that allowed abortion clinics to challenge abortion restrictions.
“This (Supreme) Court and the lower appellate courts have consistently permitted abortion providers that are identically situated to plaintiffs to raise their patients’ privacy rights under the state Constitution and, where applicable, have affirmed injunctive relief on such third-party claims based on the harm to patients in need of abortion care,” the motion said.
The motion also said the plaintiffs and their patients “will suffer harm that cannot be remedied at law if HB 5 is not enjoined.”
“The lack of an injunction has coerced plaintiffs, under threat of severe criminal and licensing penalties, to stop providing essential medical care in accordance with their medical judgment and their patients’ best interests, directly impeding the doctor-patient relationship, and denying patients access to essential medical care they and their doctors have determined they need,” the motion said.
While the plaintiffs pointed to past Supreme Court rulings in abortion cases, the court has undergone a major philosophical shift since DeSantis took office in early 2019.
Three longtime justices who consistently ruled in favor of abortion rights, Justices Barbara Pariente, R. Fred Lewis and Peggy Quince, left the court in 2019 because of a mandatory retirement age. Appointments by DeSantis have cemented a solid conservative majority on the seven-member court, with the Republican governor’s latest appointee, Renatha Francis, taking her seat Thursday.