Case: Hafner v. Florida

This is a case about abortion rights and religious freedom in Florida. The case was consolidated from five related lawsuits, each filed by members of the clergy on August 1, 2022 in the Circuit Court for the Eleventh Judicial Circuit of Florida, which is a state trial court. The plaintiffs, represented by a private law firm, sued Florida under 42 U.S.C. § 1983 and state causes of action. They alleged that a recent Florida law criminalizing nearly all abortions performed after 15 weeks of pregnancy violated the Florida Religious Freedom Restoration Act, the Florida Constitution, and the U.S. Constitution, because it infringed upon the free speech and religious exercise rights of clergy members who give advice to their congregants about reproductive health decisions. The plaintiffs sought declaratory relief, preliminary and permanent injunctions, and attorney's fees. The cases were originally assigned to Judge Michael A. Hanzman, but were later transferred to Judge Alan Fine.

The lawsuits challenged Florida's House Bill 5 (HB 5), the Reducing Fetal and Infant Mortality Act, passed in April 2022. The law made it a felony to perform abortions after 15 weeks of pregnancy, unless the abortion is necessary to prevent death or significant and permanent bodily harm to the parent, or in the event of a fatal fetal abnormality when the fetus is nonviable.

The plaintiffs were members of the clergy from different religious faiths: a United Church of Christ pastor, a Buddhist lama, an Episcopal priest, three Jewish rabbis, and a Unitarian Universalist minister. Each argued that their responsibilities involved counseling congregants about abortion choices in accordance with their faiths. They argued that their religions support or even sometimes mandate abortion, meaning they would sometimes advise their congregants to violate HB 5. Based on Florida's existing laws about aiding and abetting, HB 5 could allow prosecution for clergy members who advise congregants to get abortions.

The plaintiffs made essentially the same legal argument in each complaint, alleging that HB 5 infringed on both their free speech and religious exercise rights. First, they alleged that HB 5 violated their right to free speech under the Florida Constitution and the First Amendment of the U.S. Constitution because it prevented them from advising their congregants on reproductive choices and gave officials the ability to selectively punish people for their speech. They also alleged that the law violated the First Amendment because it was too vague and did not clarify whether clergy members might be prosecuted for their counseling or what the punishments would be.

Second, they argued that the bill violated their right to freely exercise their religion under the First Amendment of the U.S. Constitution, as well as Florida's Constitution, which has an additional ban on penalizing religious exercise, and Florida's Religious Freedom Restoration Act, which protects religious exercise from state burdens, including those imposed through facially neutral laws. The plaintiffs alleged that the law was discriminatory because it endorsed an anti-abortion religious viewpoint that runs counter to the plaintiffs' own views. They also contended that Florida's endorsement of a particular religious view violated the First Amendment's Establishment Clause.

The five complaints were all filed separately on August 1, 2022. The plaintiffs named the Attorney General of Florida and every Florida State Attorney as defendants. A few days later, on August 5, the plaintiffs moved to transfer the cases to the court's Complex Business Litigation Division. The court granted the motion three months later, on November 8, and the cases were transferred to Judge Alan Fine.

On September 1, 2022, a month after filing the complaints, the plaintiffs moved for preliminary injunctions in each case. On October 13 of the same year, the Florida Attorney General filed motions to transfer the cases to a different circuit. A few weeks later, on October 24 and 26, nineteen of the defendants moved to dismiss the claims against them, alleging that the venue was improper and the court lacked jurisdiction because the defendants were the State Attorneys for other Judicial Circuits. A few days later, on October 31, a State Attorney defendant also filed motions to transfer the cases to a different circuit. The next day, November 1, the State Attorney for the Eleventh Circuit moved to dismiss the cases, arguing that she could not be sued for enforcing HB5 because she was legally required to enforce it and had no control over state law. A few days later the same defendant withdrew the motions, then re-filed another motion to dismiss that made a similar argument.

On November 23, 2022, the plaintiffs moved to consolidate the five cases, and the court granted the motion two months later, on January 22. On November 28, 2022, one of the State Attorney defendants filed another set of motions to dismiss, arguing that she should not be a defendant because she worked in a different judicial circuit, and that the plaintiffs could not challenge the law because they were not being prosecuted, or about to be prosecuted, for violating it.

On December 8 of the same year, the plaintiffs voluntarily dismissed their claims against every defendant except the State Attorney for the Eleventh Judicial Circuit, which is the circuit in which the cases had been filed. However, a few weeks later, on December 22, the Florida Attorney General, who had been voluntarily dismissed, moved to rejoin the case as an intervenor, and the court granted the motion on January 22, 2023.

On March 3, 2023, the court denied plaintiffs' motion for a temporary injunction. In its reasoning, the court noted that HB 5 had been the law for decades and no member of the clergy had ever been prosecuted, or threatened with prosecution, for counseling a congregant on the choice to have an abortion. Moreover, such a theoretical prosecution would not be viable as a member of the clergy would not be an "active participant" in providing an illegal abortion simply by providing religious counsel. Accordingly, as plaintiffs had failed to establish a credible threat of prosecution, the court found that plaintiffs lacked standing to challenge HB 5 and therefore denied their motion.  

A few weeks later, on March 27, the defendant-intervenor Attorney General filed a motion to dismiss the case for lack of standing. Soon after, on March 31, plaintiffs appealed the court's order denying temporary injunction and, on April 12, the Attorney General filed a motion to stay pending appeal.

The Florida legislature passed SB 300, which banned abortions after six weeks LMP, and the Governor signed it into law. SB 300 contained exceptions for fetal abnormalities and in documented cases of rape, incest or human trafficking. While passed, SB 300 would not become effective until certain conditions were met. In response, plaintiffs filed an Amended Complaint that included a challenge to SB 300 on April 27. In it, plaintiffs sought declaratory and injunctive relief against SB 300, too, and argued that, like HB 5, violated plaintiffs' rights under the Florida Religious Freedom Restoration Act, the Florida Constitution, and the U.S. Constitution by infringing on the free speech and religious exercise rights of clergy members who give advice to their congregants about abortion.

On May 15, plaintiffs voluntarily dismissed their appeal without prejudice.

The Attorney General, as an intervenor-defendant, filed a motion to dismiss on May 30th, arguing that the SB 300 claims were not ripe and that plaintiffs had neither established standing nor stated a cause of action. The next day, the Eleventh Judicial Circuit moved to dismiss for failure to state a cause of action. 

A few months later, on July 21, plaintiffs filed a motion for summary judgment. A hearing was set for the motion on August 10 but cancelled day of. Throughout the summer and fall, the parties continued to engage in discovery. 

On January 9, 2024, the trial court granted the Attorney General's motion to dismiss. In its order, the court addressed three issues before considering whether plaintiffs had stated a cause of action. First, the court held that plaintiffs' claims against SB 300 were not ripe as the law had not gone into effect and, because the law becoming effective was contingent on four events, one of which may never happen, SB 300 may never go into effect. Second, the court held that the complaint was a "shotgun pleading," as it incorporated the allegations of all preceding counts, and was dismissed as such.

Third, the court considered whether a clergy member who counseled a person about their choice to have an abortion, or provided funding or transportation for abortion care, could be liable. The court held that, while a clergy member engaging in those acts could not be deemed to have "actively participated" in an abortion, they could be held liable for aiding or counseling an unlawful abortion. 

Lastly, the court held that plaintiffs did not have standing and had failed to state a cause of action. Plaintiffs had failed to show they were under a real, immediate or credible threat of prosecution. Moreover, plaintiffs did not offer a factual basis to their argument that HB 5 affirmatively criminalized their religious beliefs or activities. 

Plaintiffs voluntarily dismissed their complaint without prejudice on February 8, 2024. The case is closed.