The American Civil Liberties Union and the state of Florida are locked in a fight over a new abortion waiting period provision. So how does the law stack up to restrictions in other states?
On June 10, Gov. Rick Scott signed the state’s abortion waiting period bill into law, and the very next day the ACLU filed suit challenging the measure.
“In general the Florida law is fairly typical of what we’ve seen over the past couple of decades,” Elizabeth Nash of the Guttmacher Institute says. She studies state policies regarding reproductive health.
Nash explains many states with waiting periods have chosen 24 hours as Florida has, but she adds some states have delays as long as 72 hours. Nash says Florida’s requirement for two trips to a clinic is what sets it apart.
“So it’s really two different requirements that would be put into place should this law go into effect,” Nash says. “One is the requirement that the woman go to the clinic for the counseling, and the other would be the waiting period between the counseling and the abortion itself.”
Florida is not unique in carrying a two-trip requirement, but it is in the minority. Assuming Florida’s law remains on the books, 28 states in all will have mandatory waiting periods of varying length. But only 13 of those have a two-trip requirement.
“And three of those were adopted this year,” Nash continues, “so there’s really a renewed interest in this idea of requiring women to visit the abortion clinic twice.”
The problem with this, according to ACLU lawyer Rene Paradis is the new requirements violate Florida’s constitutional privacy amendment.
“Florida’s one of only five states that has a privacy protection written into its constitution,” Paradis said after a temporary injunction hearing in June. She says of those states only one—Montana—tried to add a waiting period.
It was struck down in court.
But on the other side of the case, Blaine Winship special counsel for the attorney General, claims the new law doesn’t conflict with the state’s privacy protections.
“The question of whether there’s a 24 hour wait for her to contemplate the full impact and ramifications of her decision is obviously what we’ve been talking about today,” Winship said after the same hearing. “It’s what the Legislature aimed to try to protect, and in that regard, women will still have their privacy, they’ll still have the opportunity to have an abortion if they want to, the only question is whether there will be a twenty four hour waiting period or not.”
But Paradis argues in legal terms, privacy means more than simply not having to disclose information.
“The right to privacy in our constitutional jurisprudence has encompassed the right to intimate decisions: the right to procreate, the right not to procreate, the right to choose an abortion,” Paradis says. “It encompasses a much broader sense than what we might think of privacy for lay-people.”
There was a flurry of legal activity on the eve of the law’s effective date leaving service providers in limbo. A judge ruled Tuesday in favor of the ACLU’s motion for a temporary injunction—a legal move placing the law on hold while the case against it is decided. The state appealed that order. Under Florida appellate procedures, when the state appeals, it automatically blocks the ruling from taking effect. In this case, the state’s appeal allowed the waiting period law to briefly go into effect. But Thursday, a judge ruled to vacate that automatic stay, again placing the law on hold.
It seems likely the case will eventually come before the Florida Supreme Court.
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