Florida's Restrictive 24-Hour Abortion Waiting Period Heading Back to Trial

A Florida appeals court has ruled that a lower court erred in its decision that a 24-hour abortion waiting period is unconstitutional.
A Florida appeals court has ruled that a lower court erred in its decision that a 24-hour abortion waiting period is unconstitutional. Photo by New Voices / Flickr
The court battle over Florida's abortion waiting period has been ongoing ever since state legislators passed House Bill 633 in 2015, requiring women to wait 24 hours after meeting with their doctor before having an abortion. The law effectively forced women to make a second, medically unnecessary trip to a health clinic even after making the decision to terminate a pregnancy.

The measure briefly went into effect in 2016 but was blocked by the state Supreme Court in 2017 after the American Civil Liberties Union (ACLU) successfully argued that it caused an undue burden on women. Then last year, Leon County Circuit Judge Terry Lewis ruled that the abortion waiting period was unconstitutional due to its intrusion upon state privacy rights.

But now, the seemingly dead law might actually come back to life. Yesterday, a Florida appeals court ruled that Lewis erred in his decision that a waiting period was unconstitutional, raising concerns about informed consent standard of care.

"The State produced conflicting evidence from medical experts that the absence of such a decision-period after receiving information about the nature and risks of an abortion procedure and the procedure itself falls below the accepted medical standard of care," First District Court of Appeals Judge Timothy Osterhaus wrote in his decision.

Gaby Guadalupe, a spokeswoman for the ACLU Foundation of Florida, says the organization plans to fight Osterhaus' ruling in court.

"We are disappointed that the court failed to recognize what we all know — a 24-hour delay was designed to and plainly does unnecessarily restrict access to safe and legal reproductive healthcare," Guadalupe tells New Times. "We look forward to proving these facts at trial."

In the previous, 2018 court decision, Lewis had criticized the fact that the legislation was prohibitive only to female patients seeking to terminate a pregnancy. Abortions are actually one of the safest types of surgical procedures — the American Journal of Public Health published a four-year study of abortions in California that found fewer than 0.05 percent of women experienced a major complication.

"Florida law subjects no other medical procedure, including those that pose greater health risks than abortion, to a mandatory delay," Lewis wrote at the time.

For now, the 24-hour abortion waiting period is still blocked. The 2017 Florida Supreme Court injunction remains in place even as the case returns to the lower courts. If the waiting period does go into effect, however, it will be another restrictive hurdle between women and their reproductive health. Reproductive rights across the state are already "severely restricted," according to the National Abortion Rights Action League (NARAL), with a fifth of Floridians living in a county that lacks an abortion clinic.

"This mandatory delay and the additional trip requirement is an assault on the health and judgment of all women in Florida," Guadalupe says. "But it will have particularly harsh consequences for low-income women, many of whom will be forced to miss work, lose wages, and pay for additional travel and childcare as a result of this new law."
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Jess Nelson is the 2019 writing fellow for Miami New Times. She was born and raised in the San Francisco Bay Area and is excited to be living close to the water again after moving to Miami from New York. She studied history at UC Berkeley and investigative journalism at Columbia University.
Contact: Jess Nelson