Florida judge briefly blocks new 15-week abortion ban; state appeal reinstates it for now

A Florida judge temporarily blocked a new 15-week abortion ban days after it took effect in the state. But a state appeal means the court’s order has automatically been stayed, keeping the law in place for the time being.

It was an expected move following an oral ruling last week in which the judge said the law violated the privacy provision of the state constitution.

Judge John C. Cooper issued the order Tuesday following a court challenge by reproductive health providers who say the state constitution guarantees a right to the procedure.

NEW: Judge Cooper’s signed written order granting Plaintiffs’ motion for temporary injunction—making verbal ruling Thurs. that #HB5– new 15-week abortion ban that took effect Friday unconstitutional “in that it violates the privacy provision of the Florida Constitution”—binding. pic.twitter.com/pUlGkWPCPy

— Christina Boomer Vazquez, M.S. (@CBoomerVazquez) July 5, 2022

The decision came as abortion laws change at a frenzied pace across the country following the U.S. Supreme Court overturning the landmark Roe v. Wade decision.

In his order, Cooper called the law “facially unconstitutional.”

He said that he believes his written order is not affected by the recent U.S. Supreme Court decision ending 50 years of federal abortion rights, because the “right to privacy under the Florida Constitution is broader in scope than any private right under the United States Constitution.”

Cooper also wrote that the Florida Supreme Court also determined that women have a right under Florida’s privacy clause to decide whether to terminate a pregnancy at least until fetal viability.

A legal analyst with an expertise in reproductive rights explained what underpinned the judge’s reasoning, nothing that the state constitution explicitly includes one feature the federal constitution lacks.

“The major difference between the U.S. Constitution and the Florida Constitution is that the U.S. Constitution doesn’t have that explicit right to privacy in it,” Carolina Mala Corbin, a law professor at the University of Miami, said. “The Florida Supreme Court has held more than once that the right to privacy in the conditions extends to protection for abortion. Lower courts are bound to follow.”

The state argued during the hearing that with the majority of abortions being performed under 15 weeks, HB5 will have no effect at all for most women seeking an abortion, much less cause a “significant restriction.”

Dr. Shelly Tien, a witness for the plaintiffs, told the court many fetal anomalies are not evident until after 15 weeks.

In his written order, Cooper states that HB5 bans “with extreme limited exceptions, pre-viability abortions that were previously allowed under Florida law, thus imposing a burden on the state to justify that law.”

Florida’s law had gone into effect Friday before being blocked. The state quickly filed an appeal of Cooper’s decision, meaning the law was blocked for exactly 39 minutes Tuesday.

This owes to a rule automatically putting injunctions on hold once the state appeals.

Legal analysts explain that is because according to state’s rules of appellate procedure, since one of the parties is the state – when the state appeals – the injunction goes back on hold. (Florida State Court Rule 9.310(b)(2)). https://t.co/E0YD4QGhQK 2/2

— Christina Boomer Vazquez, M.S. (@CBoomerVazquez) July 5, 2022

Daniel Tilley, the legal director for the American Civil Liberties Union, told Local 10 News shortly after the ruling the organization planned to file a motion with the lower court to lift the automatic stay.

The ACLU filed its motion filed its motion on behalf of Planned Parenthood shortly after.

“We are entitled to an injunction because we are likely to succeed on the merits of our case,” Tilley said, saying that overturning a decades-old legal precedent “would be a radical and horrific change in Florida constitutional law.”

The Plaintiffs in this case, providers to include Planned Parenthood, are represented by the ACLU. ACLU legal director Daniel Tilley tells me they do plan to file a motion with the lower court to lift the automatic stay. #HB5 pic.twitter.com/aZQuf7xS2D

— Christina Boomer Vazquez, M.S. (@CBoomerVazquez) July 5, 2022

Read Cooper’s order here:

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