State of Florida, Florida Department of Health, Celeste Philip, M.D., M.P.H., in her official capacity as Surgeon General and Secretary of Health etc v. Gainesville Woman Care, LLC, d/b/a Bread and Roses Women's Health Center, and Medical Students for Choice

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-623
_____________________________
STATE OF FLORIDA, FLORIDA
DEPARTMENT OF HEALTH, CELESTE
PHILIP, M.D., M.P.H., in her
official capacity as Surgeon
General and Secretary of Health
for the State of Florida, FLORIDA
BOARD OF MEDICINE, JORGE J.
LOPEZ, M.D., in his official
capacity as Chair of the Florida
Board of Medicine, FLORIDA BOARD
OF OSTEOPATHIC MEDICINE, JOEL
B. ROSE, D.O., in his official
capacity as Chair of the Florida
Board of Osteopathic Medicine,
FLORIDA AGENCY FOR HEALTH
CARE ADMINISTRATION, and MARY
C. MAYHEW, in her official capacity
as Secretary of the Florida Agency
for Health Care Administration,
Appellants,
v.
GAINESVILLE WOMAN CARE, LLC,
d/b/a Bread and Roses Women’s
Health Center, and MEDICAL
STUDENTS FOR CHOICE,
Appellees.
_____________________________
On appeal from the Circuit Court for Leon County.
Terry P. Lewis, Judge.
August 1, 2019
OSTERHAUS, J.
Appellees, Gainesville Woman Care, LLC, d/b/a Bread and
Roses Women’s Health Center, and Medical Students for Choice,
have challenged an amendment to Florida’s abortion law requiring
24 hours to pass between the time a patient is informed of the
nature and risks of having an abortion and a physician’s
completion of the procedure. Ch. 2015–118, Laws of Fla.;
§ 390.0111(3), Fla. Stat. (2018). They assert that this 24-hour Law,
on its face, violates the Florida Constitution’s right of privacy
provision, article I, § 23.
Based on the Florida Supreme Court’s earlier decision to
temporarily enjoin the 24-hour Law’s enforcement, Appellees
moved for final summary judgment and prevailed in the trial court.
Since the temporary injunction phase of this case, however, the
State has built a case that raises genuine issues of material fact.
Among the remaining unresolved issues is the parties’ dispute
about the informed consent medical standard of care. Appellees’
summary judgment motion asserted that the 24-hour Law deviates
from the accepted standard of medical care in Florida by requiring
the 24-hour delay and an unnecessary visit to a physician. But the
State produced conflicting evidence from medical experts that the
absence of such a decision-period after receiving information about
the nature and risks of an abortion procedure and the procedure
itself falls below the accepted medical standard of care. If the
State’s experts prove correct, that the 24-hour Law brings Florida
in-line with the informed consent standard of care, then the law
would pass muster under the Florida Supreme Court’s decision
approving informed consent in the abortion context. See State v.
Presidential Women’s Ctr., 937 So. 2d 114 (Fla. 2006); cf. Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 885-87 (1992)
(approving a 24-hour waiting period under the United States
Constitution). Because material facts still divide the parties, and
all doubts about the existence of genuine issues of material fact
2
must be resolved in the State’s favor for purposes of deciding
Appellees’ summary judgment motion, we reverse and remand for
further proceedings.
I.
The Woman’s Right to Know Act, § 390.0111(3), Fla. Stat.,
generally prohibits abortions unless the physician obtains
informed consent from a patient. In 2015, the Legislature amended
the Act to require a 24-hour period between the time a pregnant
woman receives the statutorily required informed consent
information and completion of the procedure. § 390.0111(3)(a)1,
Fla. Stat.; see also Gainesville Woman Care, LLC v. State, 210 So.
3d 1243, 1248 (Fla. 2017) (describing and quoting the 24-hour
Law). The 24-hour Law has some exceptions. For example, a
physician can forego the 24-hour period if there is a medical
emergency, or if the patient is a victim of rape, incest, domestic
violence, or human trafficking. § 390.0111(3)(a)1.c. & (3)(b), Fla.
Stat.
Soon after the 24-hour Law was enacted, Appellees filed a
complaint challenging its facial constitutionality. Appellees also
filed a motion to temporarily enjoin the 24-hour Law from being
enforced while the courts decided its challenge. The trial court
granted the temporary injunction and appeals were taken. The
Florida Supreme Court ultimately allowed the injunction based on
the evidence presented by Appellees at the temporary injunction
hearing, and because the State didn’t offer any rebuttal evidence.
See Gainesville Woman Care, 210 So. 3d at 1260-62 (“The State
presented no evidence to indicate that the prior, neutral informed
consent statute . . . is inadequate and requires the revisions
enacted by the Legislature.”). In view of the trial court’s finding
that the 24-hour Law “imposes a significant restriction on all
women’s fundamental right of privacy,” the Court approved the
injunction. Id. at 1264-65.
After the Florida Supreme Court’s injunction decision,
Appellees moved for final summary judgment on the merits of its
constitutional challenge. Citing the Florida Supreme Court’s
temporary injunction decision, Appellees argued that the 24-hour
Law cannot survive strict scrutiny and doesn’t further a
3
compelling state interest. The State opposed final summary
judgment by producing evidence supporting the law’s
constitutionality which hadn’t been offered at the temporary
injunction stage of the case.
The State argued that the 24-hour Law advanced its
compelling interest in ensuring truly informed and voluntary
consent and was tailored lawfully toward this goal. Its evidence
included declarations from two apparently well-credentialed
medical doctors asserting that a 24-hour waiting period is
necessary to comply with the accepted medical standard of care for
informed consent. Dr. Hector Vila is a board-certified
anesthesiologist, who served on the Florida Board of Medicine; is
a member of the American Society of Anesthesiologists, serving on
the Ambulatory Surgery Committee; and is a member of the
American Association for Accreditation of Ambulatory Surgery
Facilities Board of Directors. Dr. Vila claimed extensive familiarity
with the medical and professional standards for outpatient
surgery. Dr. Vila’s declaration stated that he is “not aware of
another area of medicine, besides abortion, in which a
nonemergency outpatient invasive procedure is performed without
a prior visit and consultation.” And he stated that the lack of a 24-
hour waiting period “would fall below the acceptable medical
standard of care.”
The State’s other medical declarant, Dr. Carlos Lamoutte, is
a board-certified obstetrician-gynecologist. He stated that, other
than abortion, he was “not aware of any non-emergency outpatient
gynecological procedures that are routinely performed on a same-
day basis.” “As a matter of standard practice,” when a patient
considers “any sort of invasive or nontrivial procedure,” Dr.
Lamoutte consults with the patient and then schedules the
procedure “for a later date.” On occasion, Dr. Lamoutte has
performed very minor procedures during the same appointment
which he consulted the patient, but “[e]ven these extremely minor
procedures are not done on a same-day basis in the ordinary
course, but only in certain instances.”
The State also filed the declaration of Priscilla K. Coleman,
Ph.D., and others, addressing the mental health effects and
negative outcomes associated with women not receiving adequate
4
time to reflect before making an abortion decision. Professor
Coleman said that “waiting periods in other states are associated
with improved mental health among females as evidenced by a
significant drop in suicide rates.”
Appellees did not counter the State’s declarations with
medical or other evidence but relied on the temporary injunction
decision and legal arguments to support its summary judgment
motion. The trial court granted Appellees’ motion for final
summary judgment. Its order declared the 24-hour Law to be
facially unconstitutional and it permanently enjoined its
enforcement. The court acknowledged the State to have a
compelling interest in ensuring that that women’s consent to
abortion is fully informed and genuinely voluntary. But it found no
remaining genuine issue of material fact as to whether the 24-hour
Law could survive strict scrutiny. The trial court rejected the
State’s medical evidence because it didn’t think that practitioners
employed decision-periods for procedures comparable to abortion,
except on a discretionary basis. The court also discounted the
State’s mental health evidence. It concluded that similar trauma
exists with other medical procedures, so that the Legislature
wasn’t justified in “singling out abortions for the mandatory
delay.” The trial court did not state whether it was invalidating
the law under Florida’s traditional no-set-of-circumstances test for
facial challenges. But it highlighted particular circumstances in
which the law might not constitutionally apply—situations where
women possess sophisticated medical knowledge, are certain of
their decision, have suffered violence, live far away from a clinic,
or have previously reviewed the required information—in finding
the 24-hour Law to be too broad. The State timely appealed the
final summary judgment order.
II.
The standard of review of a final summary judgment is de
novo. Bowman v. Barker, 172 So. 3d 1013, 1014 (Fla. 1st DCA
2015). “The movant must demonstrate conclusively that no
genuine issue exists as to any material fact, and the court must
draw every possible inference in favor of the party opposing
summary judgment.” Id. at 1015. Summary judgment should not
be granted “unless the facts are so crystallized that nothing
5
remains but questions of law.” Id. (quoting Moore v. Morris, 475
So. 2d 666, 668 (Fla. 1985)).
A.
As discussed above, this case comes to us after the Florida
Supreme Court approved a temporary injunction enjoining the 24-
hour Law from taking effect. The Court approved the injunction
“based on the evidence presented at the temporary injunction
hearing” and the State’s then-feeble case:
In this case, the State failed to present any evidence that
the [24-hour] Law serves any compelling state interest,
much less through the least restrictive means, and,
therefore, the trial court correctly concluded that there is
a substantial likelihood that the [24-hour] Law is
unconstitutional. Accordingly, we quash the decision of
the First District below and remand this case back to the
First District for instructions not inconsistent with this
opinion.
Gainesville Woman Care, 210 So. 3d at 1265. At that point, the
evidence consisted of a declaration by Appellees’ temporary
injunction-phase medical expert, Dr. Christine L. Curry, and
nothing from the State. Id. at 1250. The Court repeatedly relied on
Dr. Curry’s assertions in reaching its decision to grant the
injunction.
But now, at the current summary judgment phase of this case,
it is the State that has submitted all of the medical and mental
health evidence, while Appellees are standing pat. The updated
posture of this case is important because “[t]he grant or denial of
a temporary injunction does not ordinarily decide the merits of the
case unless (1) the hearing is specially set for that purpose, [and]
(2) the parties have had a full opportunity to present their cases.”
Silver Rose Entm’t, Inc. v. Clay Cty., 646 So. 2d 246, 248 (Fla. 1st
DCA 1994). Neither of these factors apply here. Also, we must be
wary of reading too much into the Florida Supreme Court’s earlier
decision because it focused on the State’s lack of evidence. Its
decision was based “only [on] the evidence before the trial court at
the time it entered its temporary injunction order.” Planned
6
Parenthood of Greater Orlando, Inc. v. MMB Props., 211 So. 3d
918, 926 (Fla. 2017); Vill. of N. Palm Beach v. S & H Foster’s, Inc.,
80 So. 3d 433, 436 (Fla. 4th DCA 2012) (recognizing that “the
affirmance of a temporary injunction on appeal determines only
that a proper showing was made at the time the injunction was
applied for”). Furthermore, Appellees are no longer relying on any
medical evidence. When Appellees were questioned at oral
argument about the medical expert declaration that it presented
at the temporary injunction hearing, upon which the Florida
Supreme Court relied, they said they were “not relying on Dr.
Curry’s declaration now.” And so, Appellees would have us apply
the temporary injunction opinion against the 24-hour Law on
summary judgment without any medical evidence supporting its
challenge.
Our job now is to review whether genuine issues of material
fact remain in the case that preclude final summary judgment.
And, indeed, such fact issues remain. The medical standard of care
issue is the most obvious example. Appellees began the
“Undisputed Fact” section of their summary judgment motion by
describing the medical standard of care and asserting that it
doesn’t mandate a delay between informing a patient of the nature
and risks of having an abortion and completing the procedure. But
the State’s medical experts say the opposite. Dr. Vila stated that a
less-than-24-hour waiting period “would fall below the acceptable
medical standard of care.” And Dr. Lamoutte said that he is “not
aware of any non-emergency outpatient gynecological procedures
that are routinely performed on a same-day basis.” “As a matter of
standard practice,” he schedules invasive, nontrivial procedures
for a later date. An amicus brief from a pediatricians’ group and
an association of obstetricians and gynecologists makes this same
point: “The standard of care for non-emergency surgery is to wait
at least 24 hours after providing informed consent before
performing elective surgery in order to give the patient
appropriate time for reflection.” Brief of Amici Curiae Am. Coll. of
Pediatricians & Am. Ass’n of Pro-Life Obstetricians &
Gynecologists at 6. According to the State’s case, it is only abortion
providers within the medical profession that routinely perform
invasive medical procedures on the same day that they provide
initial consultations.
7
The physicians’ declarations are supported by other mental
health-related declarations filed by the State. Dr. Coleman stated,
for example, that “waiting periods in other states are associated
with improved mental health among females as evidenced by a
significant drop in suicide rates.” She cited studies that women
who have abortions in the absence of a deliberative period are more
likely to suffer depression, anxiety, post-traumatic stress,
substance abuse, and suicidal behavior. Her statement was also
supported by the amicus brief of the American College of
Pediatricians and American Association of Pro-Life Obstetricians
& Gynecologists, which recognized that adolescents who have
abortions are particularly vulnerable to mental health-related
trauma because of their relative immaturity. Cf. Farmer v. State,
268 So. 3d 1009, 1010 (Fla. 1st DCA 2019) (noting the view of the
United States Supreme Court that “juveniles are different because
of their immaturity, their lack of responsibility, their greater
susceptibility to negative influences and pressure, and the fact
that they have fewer fixed personality traits”). The importance of
deliberating before choosing to have an abortion was also a feature
of the declaration of Appellees’ temporary injunction expert. The
Florida Supreme Court quoted Dr. Curry’s declaration that, in her
experience, “whatever a woman’s reasons for terminating a
pregnancy, she makes the decision thoughtfully after much
consideration and deliberation with those she includes in her
process: her family, friends, and/or physician.” Gainesville Woman
Care, 210 So. 3d at 1250. For these reasons, the State’s evidence
supporting the 24-hour Law raises genuine issues of material fact.
Rather than singling out and burdening abortion procedures with
arbitrary requirements, the State’s evidence indicates that the 24-
hour Law brings abortion procedures in Florida into compliance
with medical informed consent standards and tangibly improves
health outcomes for women.
Conversely, Appellees have provided no evidence that
conflicts with the State’s medical and mental health evidence. Nor
does this court have a basis on its own to discount the declarations
of the State’s medical and mental health experts addressing the
standards of care applicable to their practices. See 766.103(3)(a)1.,
Fla. Stat. (defining medical consent in terms of whether it “was in
accordance with an accepted standard of medical practice among
members of the medical profession with similar training and
8
experience”); Doctors Mem’l Hosp., Inc. v. Evans, 543 So. 2d 809,
812-13 (Fla. 1st DCA 1989) (recognizing that under Florida law,
“issues of informed consent are such that lay persons cannot
determine through the use of their common knowledge that a
breach of the standard of care occurred”). We agree with the trial
court that ensuring “fully informed and genuinely voluntary”
consent is a compelling state interest, see Presidential Women’s
Ctr., 937 So. 2d at 114. And we reject the dissent’s view that the
Legislature is prohibited from enacting an informed consent
standard that reflects the prevailing standard of medical practice
among relevant members of the medical profession. Laws
incorporating accepted medical practice standards are no novelty.
See, e.g., §§ 766.102(1) & (3) (establishing the prevailing
professional standard of care as the key issue in medical
malpractice actions), 766.102(3)(b) (memorializing the standard of
care related to the presence of a foreign body), 766.103(3)(a)1.
(requiring consent to be obtained in accordance with the “accepted
standard of medical practice”), 945.6034(2) (requiring compliance
with “the standard of care generally accepted in the professional
health community” in the corrections context); ch. 2019–137, Laws
of Fla. (requiring telehealth providers to abide by “the prevailing
professional standard of practice”).
Because the facts must be construed favorably to the non-
movant State, and genuine issues of material fact remain at issue,
we reverse and remand this matter to the trial court for additional
proceedings.
B.
In addition to the unresolved fact issues, the trial court’s final
summary judgment order evaluated Appellees’ facial
constitutional challenge using the wrong legal test. The order
found fault with the 24-hour Law partly based on the hypothetical
circumstances of women who have sophisticated medical
knowledge, who are certain of the decision, who may have suffered
violence, who live far from a clinic, or who have previously
reviewed the required information. This mode of analysis didn’t
apply Florida’s established test for assessing facial constitutional
challenges. Women claiming particular harms from the 24-hour
Law based on their specific circumstances may challenge the law’s
9
application to them. But those would be as-applied constitutional
challenges. No such challenge has been made here. For this facial
challenge, the correct legal test is not whether the 24-hour Law
violates the constitutional rights of some women in some
circumstances, but whether it violates the rights of all women in
all circumstances.
The Florida Supreme Court has recently reiterated that a no-
set-of-circumstances test applies to facial constitutional
challenges:
In a facial challenge, [court] review is limited. We
consider only the text of the statute, not its specific
application to a particular set of circumstances. To
succeed on a facial challenge, the challenger must
demonstrate that no set of circumstances exists in which
the statute can be constitutionally valid. Generally,
legislative acts are afforded a presumption of
constitutionality and we will construe the challenged
legislation to effect a constitutional outcome when
possible.
Fraternal Order of Police, Miami Lodge 20 v. City of Miami, 243
So. 3d 894, 897 (Fla. 2018) (emphasis added) (citations omitted);
see also Cashatt v. State, 873 So. 2d 430, 434 (Fla. 1st DCA 2004). ∗
And we discern this test to apply, not only because of its traditional
application to facial challenges in Florida, but because the Florida
Supreme Court applied it earlier in this case in evaluating
Appellees’ argument for a temporary injunction. That opinion
explicitly evaluated the 24-hour Law’s effect through the lens of
“all women”: “The trial court’s finding that the [24-hour] Law
∗
We note that the United States Supreme Court has used a
more challenger friendly “large fraction of relevant cases” test in
some facial challenges to abortion statutes brought under the
United States Constitution. See, e.g., Gonzales v. Carhart, 550 U.S.
124, 167-68 (2007); Casey, 505 U.S. at 895. But this standard,
which was briefly mentioned in the temporary injunction opinion,
Gainesville Woman Care, 210 So. 3d at 1264, hasn’t been adopted
or used in challenges brought under Florida’s Constitution.
10
imposes a significant restriction on all women’s fundamental right
of privacy, by its plain terms, is sufficient to support an injunction
barring the application of the law.” Gainesville Woman Care, 210
So. 3d at 1264-65 (emphasis added).
“Where an issue has been decided by the Supreme Court of
the State, the lower courts are bound to adhere to the Court’s
ruling when considering similar issues, even though the court
might believe that the law should be otherwise.” State v. Dwyer,
332 So. 2d 333, 335 (Fla. 1976). Accordingly, the test for deciding
Appellees’ facial challenge is not whether the 24-hour Law can be
lawfully applied to a particular set of facts. Rather, the test for
facial challenges in Florida remains whether no set of
circumstances exists in which the law is constitutionally valid.
III.
Because disputed genuine issues of material fact remain,
Appellees are not entitled to final summary judgment. We
therefore VACATE the Final Judgment, and REVERSE and REMAND
for further consideration of Appellees’ facial constitutional
challenge.
JAY, J., concurs; WOLF, J., dissents with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
WOLF, J., dissenting.
The trial court granted a motion for summary judgment
determining that the mandatory 24-hour delay law (the Act or
statute) was unconstitutional because the “State has not proffered
evidence that raises any genuine issues of material fact sufficient
to explain how a law that sweeps so broadly can be found to be the
least restrictive means of serving any compelling state interest.” I
11
agree with the trial court’s conclusion and its finding that the
statute “what’s in it and what’s not . . . belies the compelling nature
of the state interest being advanced and demonstrates
ambivalence, if not outright hostility, to the mandate that the least
restrictive measures to be utilized to advance the interest.”
Uniquely treating abortions differently from other medical
procedures and failing to present evidence that the statute is the
least restrictive means to accomplish the purported goals of section
390.0111(3) renders the law unconstitutional. Discouraging people
from exercising a constitutionally protected right does not
constitute a compelling state interest.
FACTS
For a patient to give valid, informed consent to any medical
treatment in Florida, the health professional must conform to an
“accepted standard of medical practice among members of the
medical profession” and provide the patient with information
conveying three things: 1) the nature of the procedure; 2) the
medically acceptable alternatives to the procedure; and 3) the
procedure’s substantial risks. § 766.103(3)(a)1.-2., Fla. Stat.
(2016). This general informed consent law does not mandate that
patients delay their care after receiving the required information
or make an additional visit to the doctor. See id. Patients may
receive this informed consent counseling at any time before their
procedure, including on the same day as their scheduled
procedure.
Florida’s informed consent law specific to abortion largely
mirrors this general informed consent statute. The abortion-
specific law requires the physician to inform the patient of “[t]he
nature and risks of undergoing or not undergoing” the abortion
procedure; “[t]he probable gestational age of the fetus, verified by
an ultrasound,” which is relevant to the nature and risks of the
procedure; and “[t]he medical risks to the woman and fetus of
carrying the pregnancy to term.” § 390.0111(3)(a)(1)a.-c., Fla. Stat.
The Act amends this pre-existing, abortion-specific informed
consent law to require that a patient make a separate, medically
necessary visit to her physician to receive exactly the same
information described above, and then delay her abortion by at
least 24 hours. § 390.0111(3)(a)1., Fla. Stat.; see also Gainesville
12
Woman Care, 210 So. 3d 1243, 1261 (Fla. 2017). Florida law
subjects no other medical procedure to a mandatory delay. 1
ANALYSIS
In Gainesville Woman Care, the court held that section
390.0111(3), Florida Statutes (2015), “implicates the Florida
Constitution’s express right of privacy” and, therefore, was subject
to strict scrutiny and presumptively unconstitutional. 210 So. 3d
at 1245. Thus, to uphold the law, the state must demonstrate a
“compelling state interest” that the law serves or protects through
the least restrictive means. Id. at 1246.
In State v. Presidential Women’s Center, 937 So. 2d 114 (Fla.
2006), the court upheld the state’s abortion informed consent
statute, “the women’s right to know,” and specifically recognized
that a patient’s informed consent to medical treatment was a state
interest. However, the court noted that the requirements of the
abortion informed consent statute were comparable to the common
law for other medical procedures and thus did not violate the
constitution. Id. at 118.
There is, however, no other medical procedure that has a
mandatory delay period after a patient has received the informed
consent information. The trial court specifically stated in its order
* The Act contains two narrow exceptions. The first is for a
woman who “presents to the physician a copy of a restraining
order, police report, medical record, or other court order or
documentation evidencing that she is obtaining the abortion
because she is a victim of rape, incest, domestic violence, or human
trafficking.” § 390.0111(3)(a)(1)c., Fla. Stat. This exception does
not apply to a woman who lacks documentation of these assaults.
The second exception is for a woman experiencing a “medical
emergency.” § 390.0111(3)(a), Fla. Stat. The term “medical
emergency” is undefined, but the statute specifies that a woman
may obtain care without delay only if “continuation of the
pregnancy would threaten [her] life.” § 390.0111(3)(b), Fla. Stat.
(emphasis added).
13
the reasons proffered by the State for singling out abortion are not
persuasive.
The State argues that it was justified in singling out abortions
for these additional requirements because the standard protocol
for other comparable medical procedures calls for a delay between
an initial consultation and the procedure. In other words, other
medical procedures have a de facto waiting period and there is no
need to mandate it by law for them. This argument, however, does
not address why other procedures are governed by general
standards of care and a doctor’s discretion while there is a
mandated delay in this area.
The State did present some other evidence concerning why a
waiting period would enhance informed consent. This other
evidence included expert testimony that women might change
their mind about having the procedure, women seeking an
abortion are under a lot of stress and it is difficult to make a
rational decision under stress, having an abortion without due
deliberation may increase risk of anxiety, depression, suicide, and
drug use, and significant numbers of women later regret the
decision to have an abortion.
None of the State’s evidence, however, proves that this is the
least restrictive means of serving the statute’s purported goal. Nor
does it justify singling out abortions for the mandatory delay when
no other medical procedure, including those with greater medical
risks, are subject to a mandatory delay. Other medical procedures
can be stressful and lead to regrets about the decision, which can
cause anxiety, depression, and drug use. And this can happen
regardless of the time taken to make the decision.
There is simply no evidence supporting the concept that
information regarding abortion is more complex and needs more
time to be understood versus other complex medical procedures.
Absent such evidence, a restriction targeting a woman’s right to
choose suggests that the Act is based on nothing more than
hostility toward the constitutionally protected abortion procedure.
Thus, it is critically important for us to ensure that any regulation
in this area is accomplished by the least intrusive means.
14
To overcome the presumption of unconstitutionality, the State
bears the burden of showing that there is a sufficient “nexus
between the asserted interests and the means chosen,” and that
the law is “narrowly tailored to achieve the stated interests.” State
v. J.P., 907 So. 2d 1101, 1117 and 1119 (Fla. 2004). The lack of
appropriate exceptions in the Act undermines the State’s
argument that it has utilized the least restrictive approach to
advancing its purported compelling state interest.
The Act makes no exceptions for a woman who is certain of
her decision, has sophisticated medical knowledge, has suffered
violence but cannot prove it, is desperate to end her pregnancy,
lives far away from the clinic, has been extensively counseled
before arriving, has previously and recently received all the
required information, or viewed an ultrasound the day before. The
Act also requires a woman to receive the required information from
a physician, face to face, instead of from any qualified medical
professional via telephone, email, or any other more convenient
method of communication.
If an informed consent is the true goal of the Act, it is unclear
why the Act is so restrictive. Patients should be allowed to avoid
two trips for face-to-face meetings with a physician. Previous
dissemination by other means should be allowed. The
disproportionate effect of two mandated visits on the economically
disadvantaged is also a significant factor. These people may face
job restrictions, child care restrictions, and transportation
difficulties not faced by the more affluent.
Another important concern is that, even if her doctor, in good
faith, advises that a delay might be adverse to her health, the Act
requires the patient to delay the procedure. A law that forces a
patient to delay medical care to the detriment of her health cannot
be the least restrictive means of furthering any compelling state
interest.
The Florida Supreme Court has held that restrictions on
abortion are permitted only to the extent that they “safeguard” a
woman’s health, and even then, only in the second trimester of
pregnancy. In re T.W., 551 So. 2d 1186, 1193 (Fla. 1989). Indeed,
the court struck the parental consent law at issue in In re T.W. in
part because it “fail[ed] to make any exception for emergency or
15
therapeutic abortions,” which was one of the ways in which that
statute “fail[ed] to provide adequate procedural safeguards.” Id. at
1196 (emphasis added). Similarly, in this case, the State has not
proffered evidence that raises any genuine issues of material fact
sufficient to explain how a law that sweeps so broadly can be found
to be the least restrictive means of serving any compelling state
interest.
I would affirm.
_____________________________
Ashley Moody, Attorney General, Amit Agarwal, Solicitor General,
Edward M. Wenger, Chief Deputy Solicitor General, and James H.
Percival, Deputy Solicitor General, Tallahassee, for Appellants.
Autumn Katz, Center for Reproductive Rights, New York; Richard
E. Johnson, Law Office of Richard E. Johnson, Tallahassee; Julia
Kaye, American Civil Liberties Union Foundation, New York; and
Benjamin James Stevenson, American Civil Liberties Union
Foundation of Florida, Pensacola, for Appellees.
16