Case: Presidential Women's Center v. Florida

This is a Florida state court case challenging the “Woman’s Right-To-Know Act” (the Act), enacted by the Florida Legislature in 1997. The Act essentially prohibited termination of pregnancy procedures from being performed or induced unless either the referring physician or the physician performing the procedure first obtained informed and voluntary written consent from the patient. In the initial stages of litigation, plaintiffs—comprising abortion clinics and an OB-GYN—argued that the Act should be invalidated permanently because its informed consent provision prevented doctors from providing patients with information tailored to their individual circumstances and required only physicians performing the abortion or referral physicians to provide the information.

On June 27, 1997, plaintiffs sued the State of Florida, the Attorney General, and the Florida Department of Health and its Secretary in the Fifteenth Judicial Circuit Court on behalf of themselves and their patients for alleged violations of the right to privacy under the Florida Constitution and the right to due process under the Florida and United States Constitutions and sought declaratory and injunctive relief. Plaintiffs shortly filed an amended emergency motion for temporary injunction on June 30, 1997. Two days later, on July 2, 1997, the Circuit Court granted plaintiffs’ motion, finding a likelihood of irreparable injury to plaintiffs if the injunction were not granted. The Circuit Court additionally determined that granting the temporary injunction would not disserve the public interest, and plaintiffs had a likelihood of prevailing on the merits. 

Defendants filed a notice of appeal to the Fourth District Court of Appeal. 

Judge Larry A. Klein of the Fourth District Court of Appeal issued an opinion on February 18, 1998 that affirmed the trial court’s order. Judge Klein analyzed two particular provisions in the law: the first limited informed consent to what “a reasonable patient would consider material” and the second permitted only the physician performing the abortion or the referring physician to inform the patient. Judge Klein found the informed consent provision at odds with Florida’s general informed consent law, which requires physicians to consider a patient’s unique circumstances, and an infringement of the woman’s ability to receive a tailored medical opinion. The referral physician provision did not clarify what type of physician could provide the information, so even a  “pediatrician or orthopedic surgeon” without OB/GYN training could do so. Because the Florida Supreme Court held in Winfield v. Division of Pari-Mutuel Wagering that Florida’s constitutional right of privacy affords greater protections than the federal constitution does, strict scrutiny was the proper standard of judicial review. Judge Klein found that on remand, the state would have to demonstrate its legislation infringing on the right to privacy would both serve a compelling state interest and do so through the least intrusive means. 707 So.2d 1145.

Though defendants filed a motion for rehearing on March 4, 1998, it was denied on April 15, 1998.

Upon cross-motions for summary judgment, plaintiffs’ motion was granted on September 13, 2002. Circuit Court Judge Ronald V. Alvarez additionally entered a permanent injunction against any enforcement of the Act. The Florida Supreme Court previously recognized two compelling state interests—the health of the mother and potentiality of life in the fetus. However, the State’s interest in protecting the woman’s health becomes compelling at the end of the first trimester. Under the same framework, its interest in fetal life also becomes compelling after the fetus is viable. Judge Alvarez found the statute’s lack of distinction between trimesters and fetal viability violated Florida’s constitutionally protected right of privacy. The informed consent provision, which set a “reasonableness” standard but provided no further guidance, violated due process and was void for vagueness. The referral physician provision also failed to serve an interest in women’s health since physicians without OB/GYN training could provide the information to patients. Relying heavily on the appellate decision, Judge Alvarez held the statute to be facially unconstitutional. 

Defendants appealed again to the Fourth District Court of Appeal, where Judge Stevenson affirmed the trial court's order on October 13, 2004. 884 So.2d 526. Defendants appealed this time to the Florida Supreme Court.

Two years later, on April 6, 2006, the Florida Supreme Court reversed the Fourth District’s decision, holding that subsection (3)(a)(1) of the Act was not unconstitutional. Writing for the majority, Justice R. Fred Lewis analyzed the Act as an informed consent statute without subjecting it to a strict scrutiny standard of review. Instead, he adhered to the principle of construing a statute, among various possible constructions, to avoid any constitutional violations. Justice Lewis adopted the State’s interpretation of “reasonable patient” to mean “reasonable patient under the particular patient’s circumstances.” While the Fourth District Court of Appeal awarded attorneys’ fees to plaintiffs, given the trial court’s determination that plaintiffs were the prevailing party, the reward was vacated. The Florida Supreme Court remanded for further proceedings and denied rehearing on August 10, 2006. 937 So.2d 114.

Because the Supreme Court left undecided whether other subsections of the Act were constitutional, the case proceeded on the plaintiffs’ challenge to the remaining subsections.

Four years later, both parties having filed cross-motions for summary judgment, defendants’ motion was granted in part on August 5, 2010. Circuit Court Judge Glenn Kelley’s order focused on subsection (3)(a)(2), stating that consent to a termination of pregnancy would be voluntary and informed only if women were given “printed materials prepared and provided” by the Florida Department of Health. Any person who willfully violates this requirement would commit a felony of the third degree, and a physician’s violation could constitute grounds for disciplinary action. However, Circuit Court Judge Glenn Kelley credited that, despite the case’s long history, no attempt was ever made to implement the subsection. Plaintiffs also did not claim to have ever been charged with violating, or threatened with prosecution for violation of, that subsection. Therefore, Judge Kelley found there was no justiciable controversy essential for the issuance of declaratory judgment and dismissed the case for lack of jurisdiction.

Plaintiffs appealed the order because it failed to address plaintiffs’ claims for injunctive relief. On November 9, 2011, the Fourth District Court of Appeal affirmed the order, agreeing that a lack of justiciable controversy meant plaintiffs had no clear legal right to injunctive relief. 73 So.3d 874 (Mem).

Once the State developed and distributed printed materials to abortion clinics, plaintiffs filed a motion on July 20, 2012 for rehearing and/or to reopen the case based on changed circumstances. A week later, on July 27, 2012, Judge Kelley denied the motion without further explanation. 

Plaintiffs filed a notice of appeal to the Fourth District on August 22, 2012. Almost two years later, the Fourth District affirmed the trial court’s order per curiam. 132 So.3d 839. 

This case is now closed.