Case: Gainesville Woman Care, LLC v. Florida

This is a state court case challenging an abortion restriction in the state of Florida. According to the plaintiffs, House Bill 633 (the Mandatory Delay Law) sought to restrict women’s access to abortion services in Florida by imposing a minimum 24-hour delay between receiving state-mandated information about the nature and risks of abortion and the abortion procedure. Florida Statutes § 390.0111 required physicians to provide the information in-person (an earlier case challenging that provision is available here); this 24-hour delay would therefore require patients seeking abortions to make an additional trip to their doctors.

On June 11, 2015, Gainesville Woman Care LLC, on behalf of itself, its doctor, and its patients, and Medical Students for Choice, on behalf of its members and their patients, filed this lawsuit in the Circuit Court for the Second Judicial Circuit in and for Leon County, Florida (the Second Judicial Circuit). Plaintiffs, represented by the ACLU, the Center for Reproductive Rights, and a private law firm, sought declaratory and injunctive relief. Plaintiffs sued the State of Florida, the Florida Department of Health, the Secretary of Health, Florida Board of Medicine and its Chair, Florida Board of Osteopathic Medicine and its Chair, and Florida Agency for Health Care Administration and its Secretary in their official capacities. Plaintiffs brought suit under the Florida Constitution, including two claims for relief. Count I alleged that the Act violated the right to privacy of patients seeking abortions as guaranteed by Art. I, § 23 of the Florida Constitution, and Count II alleged the Act violated plaintiffs’ and their patients’ rights to equal protection as guaranteed by Art I., § 2 of the Florida Constitution by respectively 1) singling out abortion for restrictions not imposed on any other medical procedures requiring consent and 2) discriminating against women on the basis of sex and gender stereotypes. 

The same day, plaintiffs also filed a Motion for an Emergency Temporary Injunction and/or Temporary Injunction; the Second Judicial Circuit granted it on June 30, 2015. This motion was grounded only in Count I, so the court only reviewed the motion under Art. I, § 23 of the Florida Constitution. Chief Judge Charles A. Francis stressed that the Court could not, given a limited evidentiary record, agree with defendants that HB 633 was cloaked in a presumption of constitutionality. Though defendants argued that thirteen other states implemented waiting periods and the United States Supreme Court had ruled waiting periods were not unconstitutional under federal law, Chief Judge Francis noted that federal law has no bearing on Florida’s “more extensive right of privacy.”

Defendants appealed this temporary injunction to the First District Court of Appeal. On February 26, 2016, it rendered a per curiam opinion that reversed the trial court’s injunction based on factual and legal deficiencies. The First District Court of Appeal found issue with the trial court’s one-hour hearing and its own admitted lack of evidence before it. Additionally, the court questioned whether the limited record in front of the trial court could support its application of strict scrutiny as the correct legal standard, since it made no factual findings about either the existence of a significant restriction on a woman’s right to seek an abortion or the State’s compelling interests in support of the statute. The First District Court of Appeal also reversed the trial court’s order vacating the automatic stay created by Florida Rule of Appellate Procedure 9.310(b)(2). 187 So.3d 279.

Plaintiffs appealed this decision to the Florida Supreme Court, which issued an opinion on February 16, 2017. Justice Barbara J. Pariente, writing for the majority, held that the Second Judicial Circuit properly applied strict scrutiny in reviewing the Mandatory Delay Law’s constitutionality because strict scrutiny is applied to any law that implicates the fundamental right of privacy, and Florida’s right of privacy encompasses a woman’s right to choose to end her pregnancy. Justice Pariente noted that the Florida Supreme Court repeatedly applied strict scrutiny to laws intruding on the right of privacy without requiring what the First District Court of Appeal found to be necessary: factual findings about the extent of the burden those laws imposed. She also noted that the State, at the trial court level, failed to bear its burden to provide evidence of a compelling state interest and that the law served that interest through the least restrictive means. Finding that the trial court’s findings were sufficient to support granting a temporary injunction, the Florida Supreme Court quashed the decision of the First District Court of Appeal. The case was ultimately remanded to the Second Judicial Circuit. 210 So.3d 1243.

The Second Judicial Circuit granted plaintiffs’ motion for summary judgment on January 9, 2018. Circuit Judge Terry P. Lewis, administratively reassigned to the case, found that the State could not meet its burden under strict scrutiny as a matter of law. He found that the Mandatory Delay Law’s language belied defendants’ proclaimed compelling state interest that a woman’s consent to abortion be “fully informed and genuinely voluntary” and demonstrated “ambivalence, if not outright hostility” to the mandate that the least restrictive measures be used to advance its interest. Judge Lewis noted that other medical procedures carrying greater risks were not subject to mandatory delays. He found an exemption for patients who suffered rape, incest, domestic violence, or human trafficking inconsistent with the stated goal of ensuring fully informed and voluntary consent, questioning why abuse would eliminate the need for a delay—while no exemption existed for situations when a physician would find a delay adverse to the patient’s health. Finally, Judge Lewis emphasized restrictions on abortion could be permitted only at the beginning of the second trimester of pregnancy, but the Mandatory Delay Law’s scope swept too broadly to serve as a least restrictive means of serving a compelling state interest. The Mandatory Delay Law was declared facially unconstitutional and permanently enjoined. 2018 WL 3090185.

Defendants filed a notice of appeal to the First District Court of Appeal. On August 1, 2019, it issued an opinion that vacated the trial court’s judgment. Writing for the majority, Judge Timothy D. Osterhaus found that the State had built its case to raise genuine issues of material fact. First, he found that plaintiffs’ and defendants’ experts differed on whether mandatory delays were necessary to comply with the accepted medical standard of care for informed consent. Second, he credited statements from defendants’ amici that the standard of care for elective surgery included giving patients at least 24 hours to reflect after providing informed consent. Finally, the correct legal standard for a facial challenge was to analyze whether the Mandatory Delay Law violated the rights of all women in all circumstances, not just some women in some circumstances, such as women with sophisticated medical knowledge or who live far from clinics. Because plaintiffs provided no evidence to conflict defendants’ evidence, Judge Osterhaus concluded that facts must be construed favorably to the non-movant State and reversed and remanded the case to the Second Judicial Circuit. 278 So.3d 216.

Because the Second Judicial Circuit closed the case after issuing its final judgment in 2018, the case was assigned to Judge Angela C. Dempsey upon reopening in 2019. A jury trial was scheduled to start April 4, 2022, but the Court indicated at a late March hearing on defendants’ Motion for Summary Final Judgment that it would instead grant defendants’ motion and cancel the trial. In her April 8, 2022 opinion, Judge Dempsey reasoned the Mandatory Delay Law’s plain purpose was to enhance a pregnant woman’s voluntary and informed consent and took judicial notice of referenced laws and judicial decisions from other states with similar requirements. She explained that the state also satisfied the strict scrutiny standard of review primarily because ensuring voluntary and informed consent was a compelling state interest. The Mandatory Delay Law was also narrowly tailored, since its imposed minimum of 24 hours was shorter than the delay required for other non-medical decisions implicating “significant constitutional interests,” such as buying a firearm (3 days) or getting a divorce (20 days). Judge Dempsey also denied plaintiffs’ Motion to Stay Pending Appeal because they failed to prove both irreparable harm and show likelihood of success on the merits.

Defendants’ filed a Motion to Tax Costs as the prevailing party on May 25, 2022. Judge Dempsey issued an order on September 15, 2022 entitling them to recover $33,141.39 for court reporting costs, which plaintiffs did not contest and other fees relating to one of defendants’ expert witnesses, to be determined at a future evidentiary hearing. 

As of November 6, 2022, this case is ongoing.