Justice Barbara Pariente of the Florida Supreme Court.
Justice Barbara Pariente of the Florida Supreme Court. (Photo: Diego M. Radzinschi/ALM)

The Florida Supreme Court on Thursday imposed a stay on a law requiring a 24-hour delay for women seeking abortions, finding the law infringes on women’s right to privacy.

The decision reversed a First District Court of Appeal ruling that required those challenging the law to prove the delay significantly restricted the right to privacy. Any law that implicates Florida’s right to privacy is subject to strict scrutiny and therefore presumptively unconstitutional, the 4-2 majority found.

“Women may take as long as they need to make this deeply personal decision both before and after they receive the state-mandated information,” Florida Supreme Court Justice Barbara Pariente wrote for the majority. “But through the mandatory delay law, the state impermissibly interferes with women’s fundamental right of privacy by mandating an additional 24-hour waiting period before a woman may exercise her decision after receiving all of the information the state deems necessary to make an educated and informed decision.”

Chief Justice Jorge Labarga and Justices R. Fred Lewis and Peggy Quince concurred.

Justices Charles Canady and Ricky Polston dissented, arguing in part that the trial court’s temporary injunction order was not supported by any evidence. Newly appointed Justice C. Alan Lawson did not participate.

The stay will remain in effect until after a hearing on the challengers’ request for a permanent injunction.

“Today’s ruling is a win for Florida women,” said Nancy Abudu, legal director at the ACLU of Florida and an attorney for the law’s challengers. “The burdens placed on a woman seeking an abortion by this mandatory delay law are medically unnecessary, potentially dangerous and disproportionately burden poor and working women. This law had one purpose: to limit a woman’s access to her constitutionally guaranteed medical care. We are pleased that the court has agreed.”

The Florida attorney general’s office, which defended the law, said it is reviewing the decision.

The high court’s future rulings on abortion may be significantly different, as judicial age limits require Pariente, Lewis and Quince to retire by Gov. Rick Scott’s last day in office in January 2019. The Republican governor has promised to replace the three justices, all appointed by Democratic former Gov. Lawton Chiles, before he leaves office.

Courts Around the US

Laws creating mandatory delays for abortion seekers are on the books in at least 18 states, with the longest waiting periods set at 72 hours, according to the ACLU. Courts in other states, including Delaware, Massachusetts, Montana and Tennessee, have blocked enforcement of mandatory waiting periods.

Tennessee’s 48-hour mandatory delay, signed into law in 2015, is awaiting a ruling from a federal judge. Other waiting period laws lost court challenges decades ago; Montana’s law was first put on hold in 1995 for setting a mandatory delay that violated the state’s constitutional right to privacy.

The U.S. Supreme Court first addressed mandatory waiting periods for abortion in a 1992 decision and has since upheld such delays as constitutional as long as the law included a medical emergency exception.

But the U.S. Constitution does not explicitly recognize a right to privacy, and the Florida Constitution does. The Florida Supreme Court first addressed the right to privacy as it relates to abortion in a 1989 case, which rejected as unconstitutional a law requiring a minor to either get parental consent before terminating her pregnancy or prove she was sufficiently mature to make the decision herself.

“As this Court demonstrated … laws that place the state between a woman, or minor, and her choice to end her pregnancy clearly implicate the right of privacy,” Pariente wrote in Thursday’s opinion.

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