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Judge Says Abortion Law Violates Free Speech

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Flickr Creative

Calling it a “naked effort to impede speech on a disfavored topic,” a federal judge has blocked provisions of a sweeping Florida abortion law from going into effect.

The ruling by U.S. District Judge Robert Hinkle centered on part of the 2016 law dealing with people or organizations that provide advice to women considering abortions. The Tallahassee judge had already blocked other provisions of the law last year.

The law, approved by the Republican-controlled Legislature and signed by Gov. Rick Scott, sought to require anyone who counsels women about abortions to provide an explanation about the procedure, including alternatives, before making referrals or assisting in obtaining abortions.

It also sought to require people or groups who provide information about abortions --- considered "referral or counseling" agencies under the law --- to register with the Agency for Health Care Administration and pay a $200 fee. They could have been charged with a felony punishable by up to a year in jail for violating the statute.

Siding with the American Civil Liberties Union of Florida, which filed the lawsuit in December on behalf of several clergy members and abortion-rights organizations, Hinkle found that the law violates the plaintiffs' constitutional rights to freedom of speech.

“The statute is a naked effort to impede speech on a disfavored topic promoting a disfavored but legal viewpoint,” Hinkle wrote in a harshly worded 27-page order late Friday.

The portion of the law requiring people or organizations that provide information or referrals about abortion to furnish “full and detailed explanation of abortion, including the effects of and alternatives to abortions” is “hopelessly vague,” the judge wrote.

“Indeed, when asked at oral argument what a plaintiff would have to say to comply with the statute, the defendants had no answer,” he wrote. “When the state's attorney general cannot explain what a criminal statute requires --- cannot explain how a person could comply with the statute --- the statute is unconstitutionally vague. … `Ordinary people' can hardly be expected to know what a criminal statute requires when the state's attorney general does not know.”

Lawyers for the plaintiffs hailed Hinkle's order granting a requested injunction.

“This ill-considered and dangerous law criminalized conversations between confidants, including friends, relatives, clergy people, mental health workers, and a host of others. We will continue to do everything possible to protect the rights of both Florida women contemplating an abortion and those they turn to seeking compassion and advice,” Nancy Abudu, ACLU of Florida legal director, said in a statement.

Gov. Rick Scott's office and Attorney General Pam Bondi's office said they were reviewing Hinkle's ruling.

The plaintiffs argued that the creation of the public registry would make it easier to prosecute those who break the law.

“It is by no means farfetched to suggest that on an issue this politically charged, in times this politically charged, someone might complain to a prosecutor, and a prosecutor might file charges, against one who assists individuals in obtaining abortions,” Hinkle wrote.

And Hinkle rejected the notion that the state had addressed the plaintiffs' concerns with the creation of a new rule published this year.

The rule “substantially narrows” the law by making it apply only to paid counselors or referral agencies, and expands the law by making it apply to those who give advice about alternatives to abortion, Hinkle ruled.

“These efforts to cure the statute's obvious constitutional deficiencies may be commendable, but they do not obviate the plaintiffs' legitimate concerns,” he wrote.

The Agency for Health Care Administration adopted the rule after oral arguments in the case, during which Hinkle appeared highly skeptical of the state's position.

In Friday's ruling, Hinkle pointed out that AHCA Secretary Justin Senior “can change the rule just as quickly.”

“Indeed, the rule is itself a change from the rule the secretary adopted prior to the litigation and from the interpretation the secretary advocated in his brief and at oral argument, confirming just how quickly the secretary can change tack,” he wrote.

Last year, Hinkle prevented other key provisions of the law, which would have barred abortion providers from receiving public funds for other services and required a dramatic increase in inspections of abortion records by health officials, from going into effect.

Florida's GOP-controlled Legislature has repeatedly passed laws aimed at restricting access to abortions.

In a separate case, a Leon County judge will hear arguments in November about the constitutionality of a 2015 state law that would require women to wait 24 hours before having abortions.

The Florida Supreme Court this year approved a temporary injunction blocking that law from taking effect. The plaintiffs argue the law is an unconstitutional violation of the right to privacy, while the law's supporters say it would give women more time to consider whether they want to have abortions.