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A Florida judge says the state's 15-week abortion ban is unconstitutional

judge john cooper tfc.jpg
The Florida Channel
Leon County Judge John Cooper acknowledged last week's U.S. Supreme Court decision during the hearing but made it clear that his decision was based on the state constitution, not on Roe v. Wade.

The judge's oral ruling, based on the state constiution's privacy protections, isn't binding until he signs a written order, likely next week. Meantime, the law has gone into into effect . The state plans to appeal.

Citing privacy protections in the Florida Constitution, a Leon County judge on Thursday said he will temporarily block the state's new 15-week abortion ban in response to a challenge by reproductive health providers.

Circuit Judge John Cooper made the oral ruling from the bench but his injunction will not go into effect until he signs a written order, which would likely happen next week. The law (HB 5) goes into effect Friday, meaning it will be in place before the order is signed.

“House Bill 5 is unconstitutional in that it violates the privacy provision of the Florida Constitution and does not meet the standards of the three Florida Supreme Court cases that have interpreted the effect of that constitutional provision in abortion in Florida,” Cooper said.

Gov. Ron DeSantis said the state will appeal with the 1st District Court of Appeal, placing an automatic freeze on Cooper’s order and effectively keep the law in place. Plantiff's lawyers said they would then immediately seek to have that stay reversed.

"These are unborn babies that have heartbeat, they can feel pain, they can suck their thumb, and to say that the state constitution mandates things like dismemberment abortions, I don't think that's the proper interpritation. We'll appeal," DeSantis said.

“We knew that we were going to have to move forward and continue the legal battle on that. And that was something that was decided under state law. It was not unanticipated. It was not something, of course that we were happy to see."

Cooper's decision comes days after the U.S. Supreme Court overturned Roe v. Wade, ending federal protections for abortions and leaving it to individual states to decide their own abortion laws.

In his ruling, Cooper said the law violates the privacy clause of the Florida Constitution, which says that "every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein.”

Florida courts have held that the clause extends to abortion, and Cooper cited those cases.

One found that Florida’s constitution has an explicit right to privacy that outweighs the privacy rights of the federal constitution. 

 “The Florida Supreme Court has determined, in its words, quote, ‘Florida’s privacy provision is clearly implicated in a woman’s decision of whether or not to continue her pregnancy,' " Cooper recited. "In other words, on the issue of abortion, the Florida Supreme Court has decided that women have a privacy right under the state constitution to not have that right impacted up to 24 weeks, at least.”

Another court ruling noted the state must show through the least intrusive means a compelling state interest for restricting a woman’s right to an abortion, and Cooper says the new law does not do that.

“Here, the act effectively bans, with extremely limited exceptions, previable abortions previously permitted under Florida law," Coooper says. "The Florida (Supreme) Court has held that the Florida right of privacy is, 'much broader in scope than that of the federal Constitution."

The judge cited a third state Supreme Court ruling saying that even if the U.S. Supreme Court overturned Roe vs. Wade that "'would not diminish the abortion rights now provided by the privacy amendment of the Florida Construction.' "

Cooper acknowledged last week's U.S. Supreme Court decision during the hearing but made it clear that his decision was based on the state constitution, not on Roe v. Wade.

The law, passed in this year's legislative session, would prevent abortions beyond 15 weeks of pregnancy without exceptions for rape or incest, although an exception would be allowed for instances of a “fatal fetal abnormality.” Physicians or other medical professionals could lose their licenses and face administrative fines of $10,000 for each violation.

Until now, Florida has generally allowed abortions until about 24 weeks of pregnancy.

The challenge was brought by the American Civil Liberties Union, Planned Parenthood and several Florida-based abortion providers.

Lauren Brenzel with Planned Parenthood said the delay in implementing the injunction creates a difficult situation for patients and providers.

“It think it is more than confusing for them, I think it is incredibly difficult for them because they want to provide quality patient care and politicians are interfering with that quality patient care right now," Brenzel said.

"They are concerned about whether or not they’ll be able to help patients in the way that they need to help patients they are following all laws and procedures and they’re following best medical practices and the relationship between a patient and their provider is so sacred and we want to see that respected."

Cooper’s ruling drew reactions from political leaders on both sides of the debate, with many speculating the case will end up in the Florida Supreme Court. While justices in the past have ruled that the privacy clause protected abortion rights, the court since 2019 has become far more conservative, with four DeSantis appointees likely to be on the seven-member court later this year.

Florida Speaker of the House Chris Sprowls, R-Palm Harbor, said Cooper's response was "disappointing but not unexpected."

"This issue will need to be resolved in the (Florida courts), where I hope to see a correct interpretation of the state's privacy clause (and) HB 5 implemented statewide to save tens of thousands of innocent babies' lives," he tweeted.

Rep. Lauren Book, D-Plantation, thanked the plaintiffs for bringing the challenge.

"The clear overreaches were exposed and the ruling reaffirms that the rights of women, girls and sexual assault survivors ... will not be further eroded!" she tweeted.

"Extremist GOP leaders will continue their crusade to strip away women’s rights & freedoms — that much is clear — but make no mistake: advocates for choice and for women to have autonomy over their bodies will be there at every turn, continuing to fight with everything we have until women’s rights are fully restored!"

Information from WJCT's Raymon Troncoso, WQCS' Kevin Kerrigan, WFSU's Regan McCarthy and the Associated Press was used in this report.

Originally founded in December 2006 as an independent grassroots publication dedicated to coverage of health issues in Florida, Health News Florida was acquired by WUSF Public Media in September 2012.