Florida Supreme Court Upholds Temporary Injunction Based on Strict Scrutiny of Mandatory 24-Hour Delay Law
Gainesville Woman Care, LLC v. State of Florida, Case No. SC16-381 (Fla. Feb. 16, 2017).
The Declaration of Rights in the Florida Constitution provides a fundamental right of privacy. “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life….” Art. I, § 23, Fla. Const. On February 16, 2017, the Florida Supreme Court made it clear that any Florida law that implicates the fundamental right of privacy is subject to strict scrutiny and is thus presumptively unconstitutional and must be justified by a compelling state interest to be served through the least restrictive means. The Court upheld a temporary injunction against the enforcement of a law implicating the right to privacy, where the State had not made that showing.
The law at issue was Florida’s Mandatory Delay Law, a 2015 amendment to the Woman’s Right to Know Act that had already required Florida physicians to provide certain information to the patient such as the probable gestational age of the fetus and the nature and risks of undergoing or not undergoing a termination of pregnancy procedure. § 390.0111(3)(a), Fla. Stat. (2015).
The Mandatory Delay Law did not require giving the woman any new information, but it added a requirement that the doctor must provide the required information while physically present in the same room with the woman at least twenty-four hours prior to the procedure. The State asserted that it had a compelling interest in ensuring that a woman would have at least a day to reflect on the information privately before deciding to go through with the procedure.
A clinic in Gainesville challenged the constitutionality of the Mandatory Delay Law. Among other points, the clinic argued that no other medical procedure required a 24-hour waiting period. The clinic asserted that the law unnecessarily caused women to have to make two trips to a doctor: one trip to receive the information, and another trip to have the procedure performed at least 24 hours later. The clinic presented evidence that the necessity of making a second trip increases the cost and the likelihood that the woman’s choice to terminate her pregnancy will not remain confidential.
The trial court applied strict scrutiny and determined that the State had failed to provide any evidence of a compelling state interest to be protected by enhancing the informed consent already required by the Woman’s Right to Know Act. The trial court then rendered a temporary injunction against enforcement of the 24-hour waiting period in the Mandatory Delay Law.
The State appealed to the First District Court of Appeal in Tallahassee, which noted that a party moving for a temporary injunction must present sufficient evidence to enable the court to make specific factual findings to satisfy each of the four prerequisites: likelihood of irreparable harm, lack of adequate legal remedy, substantial likelihood of success on the merits, and that the public interest supports the injunction. The First DCA reversed the trial court’s injunction order upon finding it factually and legally deficient. “Indeed, the trial court here could not set forth the requisite evidence-supported factual findings because it had no legally sufficient evidentiary basis to do so.” State of Florida v. Gainesville Woman Care LLC, 187 So. 3d 279, 281 (Fla. 1st DCA 2016).
The clinic sought discretionary review by the Florida Supreme Court, which accepted jurisdiction on the basis of the First District’s construction of a constitutional provision that misapplied the Florida Supreme Court’s precedent regarding strict-scrutiny review of statutes that infringe on the fundamental right of privacy under the Florida Constitution. The Court noted that misapplication of its precedent is one means of supplying conflict jurisdiction.
The Supreme Court emphasized that, “whether it is a good idea to mandate … an additional twenty-four hours … is not the point;” rather, the point is that the Mandatory Delay Law implicates the Florida Constitution’s express right of privacy by infringing on a woman’s right of privacy, and therefore the trial court correctly applied strict scrutiny in reviewing the Mandatory Delay Law’s constitutionality at the temporary injunction hearing.
The Supreme Court found that the First DCA was mistaken in placing the initial evidentiary burden on the clinic to prove a “significant restriction” on the right of privacy before subjecting the Mandatory Delay Law to strict scrutiny. Because the Mandatory Delay Law implicates the fundamental right of privacy, it was the State’s burden to prove that the law survives strict scrutiny at the temporary injunction hearing. The February 16 opinion found that the trial court did not err in finding that the law would be unlikely to survive strict scrutiny review. The State had presented only speculative interests rather than a compelling state interest and had also failed to show that the law would serve such an interest through the least restrictive means.
The Supreme Court quashed the First DCA’s decision and remanded with instructions that the temporary injunction and the stay of the Mandatory Delay Law will remain in effect while the litigation continues, until the trial court makes a decision on the clinic’s request for a permanent injunction.
This case illustrates some of the legal and procedural issues and constitutional principles that appellate lawyers are adept at handling. The appellate and trial-support attorneys at The Law Offices of Robin Bresky are available to brief and argue state and federal appeals in South Florida, all of Florida, and beyond.