Gainesville Woman Care, LLC v. State

• Decision Date: 16 February 2017
• Docket Number: No. SC16–381,SC16–381
• Parties: GAINESVILLE WOMAN CARE, LLC, et al., Petitioners, v. STATE of Florida, et al., Respondents.
• Court: Florida Supreme Court

210 So.3d 1243

GAINESVILLE WOMAN CARE, LLC, et al., Petitioners,

v.STATE of Florida, et al., Respondents.

No. SC16–381

Supreme Court of Florida.

February 16, 2017

Julia Kaye and Susan Talcott Camp of American Civil Liberties Union Foundation, New York, New York; Benjamin James Stevenson of American Civil Liberties Union Foundation of Florida, Pensacola, Florida; Nancy Abudu of American Civil Liberties Union Foundation of Florida, Miami, Florida, for Petitioner Gainesville Woman Care, LLC.

Autumn Katz of Center for Reproductive Rights, New York, New York, for Petitioner Medical Students for Choice.

Richard Errol Johnson of the Law Office of Richard E. Johnson, Tallahassee, Florida, for Petitioners.

Pamela Jo Bondi, Attorney General, and Denise Mayo Harle, Deputy Solicitor General, Tallahassee, Florida, for Respondents.

Catherine Millas Kaiman, Coral Gables, Florida, for Amici Curiae Experts and Organizations Supporting Survivors of Intimate Partner Violence, Sexual Assault, and Trafficking.

Elliot H. Scherker, Julissa Rodriguez, Stephanie Lauren Varela, and Katherine Marie Clemente of Greenberg Traurig, P.A., Miami, Florida, for Amicus Curiae National Abortion Federation.

Angela Coin Vigil of Baker & McKenzie LLP, Miami, Florida; Jaclyn Pampel of Baker & McKenzie LLP, Palo Alto, California; and Catherine Y. Stillman of Baker & McKenzie LLP, New York, New York, for Amicus Curiae Bioethicists of Florida.

Matthew John Conigliaro of Carlton Fields Jorden Burt, P.A., Tampa, Florida, for Amicus Curiae Florida Right to Life, Inc.

Stephen Craig Emmanuel of Ausley McMullen, Tallahassee, Florida, for Amici Curiae Pellegrino Center for Clinical Bioethics, National Catholic Bioethics Center, Catholic Medical Association, and Florida Conference of Catholic Bishops.

David Charles Gibbs, III of National Center for Life and Liberty, Largo, Florida, for Amici Curiae Concerned Women for America and The National Legal Foundation.

Mathew Duane Staver, Anita Leigh Staver, Horatio Gabriel Mihet, and Roger K. Gannam of Liberty Counsel, Orlando, Florida, for Amici Curiae American College of Pediatricians and American Association of Pro–life Obstetricians and Gynecologists.

PARIENTE, J.

The issue in this case is whether the trial court properly applied strict scrutiny when reviewing the Mandatory Delay Law, which imposes an additional twenty-four hour waiting period on women seeking to terminate their pregnancies. See ch. 2015–118 § 1, Laws of Fla. (codified at § 390.0111(3), Fla. Stat. (2015) ) ("Mandatory Delay Law"). The Mandatory Delay Law implicates the Florida Constitution's express right of privacy. In Florida, any law that implicates the fundamental right of privacy, regardless of the activity, is subject to strict scrutiny and, therefore, presumptively unconstitutional. Accordingly, we hold that the trial court correctly applied strict scrutiny in reviewing the Mandatory Delay Law's constitutionality.

We conclude that the First District Court of Appeal misapplied and misconstrued our precedent by placing the initial evidentiary burden on Petitioners to prove a "significant restriction" on Florida's constitutional right of privacy before subjecting the Mandatory Delay Law to strict scrutiny. State v. Gainesville Woman Care, LLC , 187 So.3d 279, 282 (Fla. 1st DCA 2016).¹ Put simply, there is no additional evidentiary burden on challengers to establish by sufficient, factually supported findings showing a law imposes a "significant restriction" on the right of privacy before a law that implicates the right of privacy is subjected to strict scrutiny.

Florida's constitutional right of privacy contained in article I, section 23, establishes the right of every person to "be let alone and free from governmental intrusion into [one's] private life." Art. I, § 23, Fla. Const. Because the right of privacy is a fundamental right within Florida's constitution, this Court consistently has required that any law intruding on this right is presumptively unconstitutional and must be justified by a "compelling state interest" which the law serves or protects through the "least restrictive means." Winfield v. Div. of Pari–Mutuel Wagering, Dep't of Bus. Regulation , 477 So.2d 544, 547 (Fla. 1985) ; see also N. Fla. Women's Health & Counseling Servs., Inc. v. Florida , 866 So.2d 612, 632 (Fla. 2003) ; In re T.W. , 551 So.2d 1186, 1191–92 (Fla. 1989).

Because the Mandatory Delay Law infringes on a woman's right of privacy, the State bore the burden at the temporary injunction hearing to prove that the Mandatory Delay Law survives strict scrutiny. The State, however, presented no evidence of a compelling state interest, much less that the law served such an interest through the least restrictive means. In addition, the First District disregarded the fact that the challengers did present evidence, which the trial court properly relied on, that the Mandatory Delay Law would result in additional costs and additional trips to the physician and that any delay could affect the type of procedure being performed.

Beyond placing an additional initial evidentiary burden on Petitioners, the First District also misinterpreted and misconstrued our precedent concerning the right of privacy by requiring, on remand, that the trial court consider a list of speculative state interests, none of which this Court has ever recognized as compelling. Gainesville Woman Care , 187 So.3d at 282. The trial court, on the other hand, correctly applied strict scrutiny in determining Petitioners' likelihood of success on the merits because the law, both facially and based on evidence presented, clearly infringes on the constitutional right of privacy. Petitioners presented unrebutted evidence establishing that the Mandatory Delay Law impedes a woman's ability to terminate her pregnancy for at least an additional twenty-four hours and requires the woman to make a second, medically unnecessary trip, which adds additional costs and delay. As Dr. Christine Curry stated in a verified affidavit, which the trial court considered:

Such delays may push women past the gestational limit when medication abortion is available. This will force women for whom a medication abortion is clinically indicated to undergo a procedure that is less safe for them. It will also force a woman who prefers a medication abortion for psychological reasons to undergo a surgical abortion, which may harm her emotional and psychological state, and this pertains especially to victims of sexual trauma. In other cases, delays may push women past the gestational limit of the nearest abortion provider, forcing them to travel farther. This, in turn, is very likely to create further delay, increasing the risks of the procedure.

Some may disagree and argue that the State should force women to endure an additional twenty-four hour waiting period after they have chosen to terminate their pregnancy, regardless of the fact that such a waiting period is not required of any other medical procedure including those gynecological procedures that are far more risky than termination of pregnancy. Whether it is a good idea to mandate that women seeking to terminate their pregnancies wait a minimum of an additional twenty-four hours before allowing them to receive medical treatment is not the point. As Petitioners cogently explain, women may take as long as they need to make this deeply personal decision both before and after they receive the state-mandated information. But through the Mandatory Delay Law, the State impermissibly interferes with women's fundamental right of privacy by mandating an additional twenty-four hour waiting period before a woman may exercise her decision after receiving all of the information the state deems necessary to make an educated and informed decision.

We recognize that a woman's right to choose remains a highly emotional issue that still divides our country many decades after the United States Supreme Court's decision in Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Indeed, a substantial minority in this country believe that women should have no right to choose to terminate a pregnancy at any time after conception.² We emphasize that this case has nothing to do with when the State's interest in restricting women's right to choose to terminate a pregnancy based on the viability of the fetus becomes compelling.

We agree with the trial court that, based on this Court's precedent, Petitioners have established a substantial likelihood of success on the merits, one of the requirements of granting a temporary injunction, as well as all other grounds for the entry of a temporary injunction. For reasons more fully explained below, we quash the First District's decision with instructions that the temporary injunction and accompanying stay of the Mandatory Delay Law remain in effect pending a hearing on Petitioners' request for a permanent injunction.

FLORIDA'S MANDATORY DELAY LAW

Florida's general informed consent law requires that, for a patient to give valid, informed consent to any medical treatment in Florida, the health care professional must conform to "an accepted standard of medical practice among members of the medical profession" and provide information conveying three things: (1) the nature of the procedure, (2) the medically acceptable alternatives to the procedure, and (3) the procedure's substantial risks. § 766.103(3)(a)1.–2., Fla. Stat. (2016). In addition, in 1997, the Florida Legislature passed the "Woman's Right to Know Act," an informed consent statute specific to procedures involving the termination of pregnancies. Ch. 97–151, Laws of Fla. This Court upheld the Woman's Right to Know Act in 2006, only after the State conceded to a limiting interpretation of the law and this Court interpreted the law to require physicians to discuss only medical risks of either terminating or continuing the pregnancy and that the scope of the advice was patient-driven. See State v. Presidential Women's Ctr. , ...