Lawyers in Attorney General Ashley Moody’s office filed a 29-page document Monday urging Leon County Circuit Judge John Cooper to reject a request by abortion clinics and a doctor for a temporary injunction against the limit, which Gov. Ron DeSantis signed into law in April.
Cooper will hear arguments June 27 on the proposed temporary injunction in a case that could ultimately test whether a privacy clause in the Florida Constitution will protect abortion rights in the future. The temporary-injunction arguments also show differences about issues such as fetal development and viability.
"At a minimum, the state’s interest is compelling in situations where the effect of HB 5 (the new law) is to encourage women to schedule their abortions earlier and results in a less dangerous medical procedure," the state’s lawyers wrote in the filing Monday. "As to protecting children in utero, the state defendants’ experts will show that a 15-week-old child is a distinct living being who is conscious and experiences pain."
But the plaintiffs focused on Florida Supreme Court rulings that date back more than three decades. Those rulings have protected abortion rights based on the privacy clause in the state Constitution.
"Plaintiffs have a substantial likelihood of success on the merits because HB 5 is unconstitutional on its face," the plaintiffs’ June 1 motion for a temporary injunction said. "Simply put, the right to privacy enshrined in the Florida Constitution protects the right to obtain an abortion before fetal viability, and the act (HB 5) contravenes that right by banning abortion months before viability."
Under current law, Florida allows abortions up to 24 weeks. The Republican-controlled Legislature passed the new law during the legislative session that ended in March. The 15-week restriction is similar to a Mississippi law that is being considered by the U.S. Supreme Court. A draft opinion leaked in the Mississippi case indicated justices could be poised to overturn the landmark Roe v. Wade abortion-rights decision.
Several abortion clinics and a doctor filed a lawsuit June 1 in Leon County circuit court challenging the new Florida law, which includes limited exceptions for situations such as if abortions are needed to save pregnant women’s lives or if the fetus has a fatal abnormality. It does not allow for exemptions in cases where pregnancies were caused by rape, incest or human trafficking. The 15-week limit is dated from women’s last menstrual periods.
While a potential U.S. Supreme Court ruling that strikes down Roe v. Wade could play a role in the case, the plaintiffs have focused heavily on the privacy clause in the Florida Constitution. Also, they argued in the motion for a temporary injunction that preventing abortions after 15 weeks could endanger women’s health by requiring them to give birth.
"In fact, the Florida Supreme Court has held repeatedly that the right to terminate a pregnancy is not just covered, but central among those liberties guaranteed by the privacy clause," the motion said.
While the Supreme Court has cited the privacy clause in the past, the makeup of the court has changed dramatically in recent years. It is now controlled by a solid conservative majority that, at least on some issues, has shown a willingness to toss out court precedents.
In the filing Monday, lawyers in Moody’s office raised a series of arguments to try to convince Cooper to reject a temporary injunction. In part, they contended that the plaintiffs don’t have legal standing and would not suffer "irreparable harm" from the law.
Also, the state’s lawyers argued that the vast majority of abortions are performed before 15 weeks. The filing said 79,817 abortions were performed in Florida in 2021, with 74,967 during the first trimester of pregnancy.
"In other words, for most women seeking an abortion, HB 5 will have no effect at all, much less cause a ‘significant restriction,’’’ the filing said, quoting a legal precedent.
A South Florida Jewish congregation also filed a separate challenge to the law this month. But Leon County Circuit Judge Layne Smith last week turned down a request to consolidate that case with the lawsuit filed by the abortion clinics and doctor.