New state court ruling revives specter of 24-hour wait for abortion

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A state appellate court has revived a 2015 Florida law that requires women to wait 24 hours before undergoing an abortion.

In 2018, Leon County Circuit Judge Terry Lewis found the law was unconstitutional after a Gainesville abortion clinic challenged the measure as a violation of privacy rights under the state Constitution.

But in a 2-1 ruling Thursday, the 1st District Court of Appeal reversed Lewis’ decision and sent the case back to the lower court for additional proceedings.

The American Civil Liberties Union of Florida was among the groups that originally challenged the law. ACLU lawyer Benjamin Stevenson said an injunction remains in place, meaning the 24-hour waiting period is not enforceable as the case proceeds.

He said the ACLU would continue its court fight “against this offensive, harmful requirement.”

“We are disappointed that the court failed to recognize what we all know – a 24-hour delay was designed to and plainly does unnecessarily restrict access to safe and legal reproductive health care,” Stevenson said in a written statement. “We look forward to proving these facts at trial.”

In the court’s majority opinion, Judge Timothy Osterhaus wrote the case must return to the trial court because “genuine issues of material fact remain at issue,” including testimony from state medical experts that requiring a 24-hour waiting period complied with an “acceptable medical standard of care.”

Osterhaus also said the trial judge used the “wrong legal test” in finding the law unconstitutional. He said Lewis’ ruling was based on “hypothetical circumstances” where a woman might not need the 24-hour waiting period because she had “sophisticated medical knowledge,” or had suffered violence or lived a great distance from a clinic.

Osterhaus said “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.”

Osterhaus was appointed to the court by Republican Gov. Rick Scott.

Judge Harvey Jay, another Scott appointee, supported Osterhaus’ opinion. But Judge James Wolf, appointed to the court by Republican Gov. Bob Martinez, dissented in an opinion that supports the earlier decision by the trial court.

Wolf noted there is “no other medical procedure that has a mandatory delay period after a patient has received the informed consent information.”

“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,” Wolf wrote.

“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,” he wrote.

Autumn Katz, a lawyer with the Center for Reproductive Rights, said her organization would continue its legal challenge to “this demeaning law so that no Florida woman is ever forced to wait for purely political reasons get the health care she needs.”

“Women are fully capable of making thoughtful decisions about their lives, families, and health care,” Katz said in a written statement. “They should not be second-guessed and forced to wait for medical care.”

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