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Appeals court weighs 24-hour abortion wait

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TALLAHASSEE, Fla. – An appeals court on Tuesday heard arguments in a battle about a Florida law that would require 24-hour waiting periods before women could have abortions.

Gov. Rick Scott signed the measure (HB 633) in June. But in a pair of rulings in late June and early July, Leon County circuit judges blocked the law from taking effect amid a constitutional challenge.

Charles Francis, who served then as chief circuit judge but has since retired, ruled the law likely violated the Florida Constitution's strong privacy protections.

"In simple terms, the question presented to this court is whether plaintiffs have sufficiently shown that the requirements of HB 633 impose a 'significant burden,' as opposed to insignificant burden, on a woman's right to an abortion," Francis wrote in a June 30 ruling.

Francis found that the plaintiffs --- Gainesville Woman Care LLC and Medical Students for Choice --- had met a four-part test for a temporary injunction. He said they'd shown the likelihood of success on the merits of their case, and that "irreparable harm will result if the law is not enjoined, that they lack an adequate remedy at law, and that the relief requested will serve the public interest."

On Tuesday, however, a three-judge panel at the 1st District Court of Appeal expressed skepticism about that ruling.

"The trial judge said in the order, 'I don't have evidence on this point, but I'm going to grant the injunction anyway,' " Judge Brad Thomas said.

Denise M. Harle, who represented the Florida Attorney General's Office in the appeal, said an injunction is an "extraordinary remedy, as this court knows."

"Your argument is, not only is the trial court's order flawed as a matter of law, it's flawed procedurally, right?" Thomas asked her.

"Our argument is that the trial court's injunction must be reversed, because there are no specific fact-findings supporting any of the four elements," Harle said.

Julia Kaye, a staff attorney with the American Civil Liberty Union's Reproductive Freedom Project who represented the plaintiffs, cited a landmark 1989 Florida Supreme Court case, known as "In re TW," that abortion-rights advocates say provides a powerful legal shield for women seeking abortions.

"Where the government is affirmatively preventing a woman from exercising her constitutional right to abortion for at least 24 hours, that is a significant restriction as a matter of law on its face," Kaye said.

It is unclear how long it will take for the appeals court to rule.

Rep. Jennifer Sullivan, a Mount Dora Republican who sponsored the waiting-period bill during last year's legislative session, attended the arguments. Meeting with reporters afterward, she said six other states had used the same language as her bill, and of those, just one had been challenged --- and had been upheld.

"If you look at the other states that have a reflection period, there is no undue burden," Sullivan said. "There is no proof that there is a burden. So I think that's what the judges will find, and I think that you saw that in the questions that they were trying to draw out and get to the point of the challenge."

The ACLU's Kaye disagreed.

“This law will put up roadblocks for all women seeking abortion care in Florida," she said. "It will be particularly burdensome for low-income women, many of whom will have to miss work, miss school, pay for additional child care and travel arrangements just to access health care.”

Kaye's co-counsel, Richard Johnson of Tallahassee, said there was no way to prove how many women would lose access to legal abortions under the law.

"Nobody knows," he said. "You'd have no way of knowing that a woman who didn't come back to your clinic didn't go to some other place."

For instance, he said, a woman from Live Oak might not return the next day for an abortion in Tallahassee, but instead might travel to Atlanta, where clinics don't have to wait 24 hours.

Johnson also criticized the questioning, calling it "as bad as it gets. … Judge Thomas, I felt, was making a political speech rather than trying to achieve an understanding of the legal issues."

Kaye, meanwhile, pointed to another abortion-related bill that passed the House Health & Human Services Committee on Tuesday and is ready to go to the House floor.

The measure (HB 1411), by Rep. Colleen Burton, R-Lakeland, would place additional regulations on abortion, address the definitions of pregnancy trimesters and ban public funding for groups affiliated with abortion clinics.

Kaye said the bill had much in common with the 2015 law in that it would further reduce the ability of abortion providers to survive financially.

"The (Targeted Regulation of Abortion Provider) laws and the mandatory delay law are part of a coordinated national strategy being executed state by state to chip away at the right to an abortion," she said.

But Burton said her bill is focused on women's health and safety.

"Is it really about that? Absolutely it is, and to this day continues to be the forefront," she said. "The most important issue, as far as we're concerned, is the health and safety of patients walking into a clinic anywhere across the state of Florida to get a legal abortion."