THE BLOG
07/02/2016 01:52 pm ET Updated Jul 03, 2017

Florida's Abortion Law is Grounded

This past week saw a seismic shift in the momentous debate surrounding pro-life and abortion rights activists, notably due to the Supreme Court's decision in Whole Women's Health v. Hellerstedt. Within a couple of days of that decision came one by federal judge Robert Hinkle of the federal court in Tallahassee, Florida in Planned Parenthood v. Philip. First, Hellerstedt.

Hellerstedt involved a challenge to two provisions in Texas' abortion law, the first mandating that a physician at an abortion clinic must have admitting privileges at a hospital within 30 miles of that clinic, and that any clinic must update their facilities to those required of ambulatory surgery centers. After extensive research, data, and evidence, the federal district (trial) court knocked out the Texas law, though the 5th Circuit Court of Appeals reversed. In an opinion written by Justice Breyer, the Supreme Court then reversed this circuit's decision by a 5-3 margin. In a rebuke of attempts by various states to limit abortions with provisions unrelated to the health and safety of a woman undergoing an abortion, the high court found that the Texas provisions did not further the health and safety of such a woman, but had the effect of placing substantial obstacles in the path of a woman's choice not considered to be permissible means of serving legitimate state interests. Translated, these provisions were politically motivated rather than to further a state's interest under law. Justice Ginsberg, in a terse, but stinging, concurrence, agreed with the reality that abortions are at least as safe as other medical procedures performed in outpatient settings. She opined, "Given these realities, it is beyond rational belief that [the Texas law] could genuinely protect the health of women, and certain that the law 'would simply make it more difficult for them to obtain abortions'...So long as this Court adheres [to its previous rulings-Roe v. Wade and the Casey case-] laws [like the Texas one] that 'do little or nothing for health, but rather strew impediments to abortion'...cannot survive judicial inspection."

Florida's new abortion law was to take effect on July 1. As the Plaintiff, Planned Parenthood requested injunctive relief based on a challenge to three of the law's provisions: (1) blocking taxpayer money for non-abortion services to abortion providers; (2) an examination of abortion documents statewide-said to be a minimum of 30,000 cases-inspected annually by state inspectors; and (3) defining the length of trimesters of a pregnancy. The Florida law also includes a provision for admitting privileges, but instead of using a 30-mile radius, it uses the vague terminology, "reasonable proximity". The law does not contain any clinic building requirements, but an attempt to legislate this was crafted, but failed. The Florida case was pending before the Supreme Court ruled as it did.

Opponents of the Florida challenge argued that Hellerstedt would not be influential, citing among other reasons that the Florida law requires patient transfer agreements (from a clinic to a hospital when complications arise from an abortion) and that admitting privileges be to a hospital is one nearby and not up to 30 miles away.

Judge Hinkle ruled otherwise on June 30, striking as unconstitutional the provisions related to the inspection of documents, and defunding of services. He left standing the provision on defining a trimester. His ruling, not a final judgment, only granted a preliminary injunction, believing that Planned Parenthood established a substantial likelihood of success on the merits [a standard for this type of injunctive relief] when there is a trial on the merits.

He found that the defunding provision precluded funding for medical services totally unrelated to abortions. There were no state-based objections to the quality of such services being provided, only that they would be performed by those performing abortions separate and apart from any public funding. Because a woman has the constitutional right to obtain an abortion, he pointed out, "...a government cannot prohibit indirectly---by withholding otherwise-available public funds---conduct that the government could not constitutionally prohibit directly." The defunding clause was such an indirect attempt.

The inspection provision called for each of the state's clinics to undergo annual inspections at which state employees would examine the medical records of 50% of the clinic's patients. The state offered no legitimate explanation for this requirement. Or, as the decision reads, "For all that is shown by the record, the inspection provision is a solution in search of a problem." Patient privacy was also a concern for the court, "But the balance is easily struck in favor of privacy when the state demands to inspect 50% of the records and cannot offer any legitimate reason for doing so."

As to the third point of contention raised by the Plaintiff-the definition of a trimester-the court denied its requested relief based solely on the state's definition of what the Florida law was intended to mean when the law states the first trimester is the "end of the 11th week of gestation". The state argued this is meant to be, "11 weeks, 6 days after conception---the same as 13 weeks, 6 days after the last menstrual period." Planned Parenthood conceded based on this representation that the statute is not unconstitutionally vague.

Two remaining points require comment: admitting privileges and patient transfer agreements.

Florida's law remains in jeopardy not only because of Judge Hinkle's ruling, but also because there remains whether or not a physician need have admitting privileges to a hospital in reasonable proximity to one of Florida's abortion clinics, even if a 30-mile radius or any mile-marker is not in the statute. Though science, data and testimony will be required, the seminal question is, does there need to be a requirement that a physician who performs an abortion have to have admitting privileges to a hospital in reasonable proximity to where the abortion is performed to ensure the woman's health and safety? No, the Supreme Court's Hellerstedt opinion answers that question.

A second, perhaps even more persuasive, reason why such privileges are medically unnecessary and a constitutionally impermissible obstacle to a woman's choice, is found in the Supreme Court's refusal earlier in the week to grant appeals from lower federal appeals courts that confronted abortion laws in Wisconsin and Mississippi. The Wisconsin law was the subject of Planned Parenthood v. Schmiel, an opinion written by noted 7th Circuit U.S. Court of Appeals jurist, Richard Posner. He addressed the transfer agreement requirement in Wisconsin's law, "There is no evidence that transfer agreements provide inferior protection to the health of women undergoing abortion compared to admitting privileges. When the transfer agreements and the availability of emergency-room care and the rarity of complications of abortions that require hospitalization are compared to the impact of the [Wisconsin] statute would have on access to abortion in Wisconsin, it is apparent that the defendants have failed to make a dent in the [lower] court's opinion granting the permanent injunction sought by the plaintiffs." Transfer agreements are not reason enough, constitutionally, to find that a physician must have admitting privileges, be it at a hospital within 30 miles of an abortion clinic, nearby, or within "reasonable proximity" to one.

While the abortion issue remains a hot and heavy social and political question not yet answered with any finality, the Florida legislature (and similar state legislative bodies) take note: just because you say provisions of your abortion statutes (a) advance, protect, and ensure the health and safety of a woman undergoing an abortion and (b) therefore advance a legitimate state interest does not, and will not, make it so. Proof enough now comes certainly from the Supreme Court but, in Florida, as well from His Honor, Robert Hinkle. Further, and very credible, legal challenges are no doubt now on the horizon.