Appeals court keeps Florida abortion law in effect

An appeals court Thursday allowed Florida’s new 15-week abortion limit to remain in effect and signaled it will overturn a circuit judge’s ruling that would have temporarily blocked the law.

A panel of the 1st District Court of Appeal, in a 2-1 decision, said abortion clinics and a doctor challenging the law had not shown they would suffer “irreparable harm” from the nearly total ban on abortions after 15 weeks of pregnancy.

As a result, the appeals court said the clinics and the doctor were not entitled to a temporary injunction to block the law. Leon County Circuit Judge John Cooper issued a temporary injunction on July 5, though the injunction was put on hold when the state appealed.

Judge Brad Thomas, in an opinion joined by Judge Stephanie Ray, 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.”

Technically, the ruling dealt with a request by the abortion clinics and the doctor to vacate a stay on Cooper’s temporary injunction. Vacating the stay would have prevented the 15-week limit from being enforced while the legal battle continues.

The appeals court denied the request but also indicated it ultimately will reject the temporary injunction. Thomas quoted an earlier ruling in an unrelated case that said “the stay and the temporary injunction on appeal go hand in hand, so naturally we consider them together.”

But Judge Susan Kelsey dissented, pointing to legal precedents in abortion cases.

“In the specific context of abortion regulation, the Florida Supreme Court has held that even ‘minimal’ loss of the constitutional right of privacy is per-se irreparable injury,” Kelsey wrote. She added, “We are therefore required to presume irreparable harm” and to grant the request to vacate the stay.

The Republican-controlled Legislature passed the 15-week limit this year amid a national debate about abortion rights. The clinics and the physician filed the lawsuit on June 1, arguing that the 15-week limit violated a privacy clause in the Florida Constitution that has long played a key role in bolstering abortion rights in the state.

In issuing the temporary injunction, Cooper agreed that the law violated the privacy clause. But the state immediately appealed, triggering an automatic stay of the temporary injunction — and keeping the law in effect. The plaintiffs countered by filing an emergency motion to vacate the stay.

“Every day that HB 5 (the law) remains in effect, Florida patients in desperate need of post-15-week abortion services are being turned away and forced to attempt to seek abortions out of state, if they are able to do so; to attempt abortions outside the medical system; or to continue pregnancies against their will,” the emergency motion said.

But Attorney General Ashley Moody’s office objected to vacating the stay, in part saying in a court filing that the plaintiffs had not “shown a likelihood of success on the merits” of their arguments in the case. Also, the filing cited the Florida Supreme Court’s “preference for preserving legislative enactments pending appeal even when a trial court has found them invalid.”

Meanwhile, the state argued that the temporary injunction issue should be fast-tracked to the Supreme Court, effectively bypassing the Tallahassee-based appeals court. The majority opinion Thursday rejected that idea.