State v. Presidential Women's Center
| Decision Date | 18 February 1998 |
| Docket Number | No. 97-2577,97-2577 |
| Citation | 707 So.2d 1145 |
| Parties | 23 Fla. L. Weekly D491, 23 Fla. L. Weekly D953 STATE of Florida, Robert Butterworth, Attorney General for the State of Florida, The Florida Department of Health and James T. Howell, Secretary of the Department of Health, Appellants, v. PRESIDENTIAL WOMEN'S CENTER, Michael Benjamin, M.D., North Florida Women's Health and Counseling Services, Inc., The Birth Control Center of Tallahassee and The Feminist Women's Health Center on Behalf of themselves and their patients, Jane Doe, Appellees. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Fort Lauderdale, for appellants.
Charlene Miller Carres, Tallahassee, and Louis M. Silber and Marshall J. Osofsky of Lewis, Vegosen, Rosenbach & Silber, West Palm Beach, and Barry M. Silver and Arlene K. Lessne of Barry M. Silver, P.A., Boca Raton, for appellees.
Charles Lee Bigelow, Jr. and Victoria H. Pflug, Fort Myers, for Amicus Curiae-Theresa Kirpatrick, Patricia Ann Short, Carolyn Kollegger, Darcy K. Jones, Maureen Brown and Lisa Weidner.
J. Stephen Menton of Rutledge, Ecenia, Underwood, Purnell & Hoffman, P.A., Tallahassee, for Amicus Curiae-Florida Obstetric and Gynecologic Society.
Eve C. Gartner, New York, New York, for Amicus Curiae-Florida Association of Planned Parenthood Affiliates, Planned Parenthood of Northeast Florida, Inc., and Planned Parenthood of Southwest Florida, Inc.
The Florida Legislature, in 1997, passed legislation known as the "Women's Right to Know Act," section 390.0111, Florida Statues (1997). The appellees, clinics performing abortions and an obstetrician/gynecologist, brought this suit to have the law declared unconstitutional under the Federal and Florida Constitutions. The trial court temporarily enjoined enforcement of the law on constitutional grounds, pending a final hearing.
The trial court found a likelihood of irreparable injury to the appellees if the injunction were not granted, that the threatened injury to the appellees outweighed the potential harm caused by the granting of the injunction, that granting the temporary injunction would not disserve the public interest, and that there was a substantial likelihood that appellees would prevail on the merits. Alachua County v. Lewis Oil Co., 516 So.2d 1033 (Fla. 1st DCA 1987). The question we must determine is whether the trial court abused its discretion. Id.
Material portions of Chapter 97-151, Laws of Florida, Chapter 390 of the Florida Statutes follow. We have italicized those portions we address in this opinion:
(3) Consents required.--A termination of pregnancy may not be performed or induced except with the voluntary and informed written consent of the pregnant woman or, in the case of a mental incompetent, the voluntary and informed written consent of her court-appointed guardian.
(a) Except in the case of a medical emergency, consent to a termination of pregnancy is voluntary and informed only if:
1. The physician who is to perform the procedure, or the referring physician, has, at a minimum, orally, in person, informed the woman of:
a. The nature and risks of undergoing or not undergoing the proposed procedure that a reasonable patient would consider material to making a knowing and willful decision of whether to terminate a pregnancy.
b. The probable gestational age of the fetus at the time the termination of pregnancy is to be performed.
c. The medical risks to the woman and fetus of carrying the pregnancy to term.
2. Printed materials prepared and provided by the department have been provided to the pregnant woman, if she chooses to view these materials, including:
a. description of the fetus.
b. A list of agencies that offer alternatives to terminating the pregnancy.
c. Detailed information on the availability of medical assistance benefits for prenatal care, childbirth, and neonatal care.
3. The woman acknowledges in writing, before the termination of pregnancy, that the information required to be provided under this subsection has been provided. Nothing in this paragraph is intended to prohibit a physician from providing any additional information which the physician deems material to the woman's informed decision to terminate her pregnancy.
(b) In the event a medical emergency exists and a physician cannot comply with the requirements for informed consent, a physician may terminate a pregnancy if he or she has obtained at least one corroborative medical opinion attesting to the medical necessity for emergency medical procedures and to the fact that to a reasonable degree of medical certainty the continuation of the pregnancy would threaten the life of the pregnant woman. In the event no second physician is available for a corroborating opinion, the physician may proceed but shall document reasons for the medical necessity in the patient's medical records.
(c) Violation of this subsection by a physician constitutes grounds for disciplinary action under s. 458.331 or s. 459.015. Substantial compliance or reasonable belief that complying with the requirements of informed consent would threaten the life or health of the patient is a defense to any action brought under this paragraph.
The appellees filed a complaint and motion for temporary injunction, asserting that a number of provisions in the law are unconstitutional. We address two of the provisions, one which changes informed consent to requiring the physician to inform the patient of what "a reasonable patient would consider material," and another, which permits only the physician doing the abortion or the referring physician to inform the patient. We conclude that the appellees have sufficiently established, at this stage of the proceeding, i.e., a review of the temporary injunction, that there is a substantial likelihood that they will prevail.
In 1980 the citizens of Florida voted to amend its constitution to include a right of privacy providing that all persons have the right "to be let alone and free from government intrusion" into their private lives. Art. I, § 23, Fla. Const. In the first case construing that right, Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544, 548 (Fla.1985), our supreme court held that Florida's constitutional right of privacy affords greater protections than the right of privacy in the federal constitution, explaining:
The citizens of Florida opted for more protection from governmental intrusion when they approved article I, section 23, of the Florida Constitution. This amendment is an independent, freestanding constitutional provision which declares the fundamental right to privacy. Article I, section 23, was intentionally phrased in strong terms. The drafters of the amendment rejected the use of the words "unreasonable" or "unwarranted" before the phrase "governmental intrusion" in order to make the privacy right as strong as possible. Since the people of this state exercised their prerogative and enacted an amendment to the Florida Constitution which expressly and succinctly provides for a strong right of privacy not found in the United States Constitution, it can only be concluded that the right is much broader in scope than that of the Federal Constitution.
The Florida Supreme Court adopted the strict scrutiny standard of judicial review for right of privacy cases in Winfield, which involved bank records:
The right of privacy is a fundamental right which we believe demands the compelling state interest standard. This test shifts the burden of proof to the state to justify an intrusion on privacy. The burden can be met by demonstrating that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means.
The strict scrutiny test is extremely difficult for a statute to pass. As our supreme court has explained:
This test, which is almost always fatal in its application, imposes a heavy burden of justification upon the state and applies only when the statute operates to the disadvantage of some suspect class such as race, nationality, or alienage or impinges upon a fundamental right explicitly or implicitly protected by the constitution. Those fundamental rights to which this test applies have been carefully and narrowly defined by the Supreme Court of the United States and have included rights of a uniquely private nature such as abortions, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).
In Re Estate of Greenberg, 390 So.2d 40, 42-43 (Fla.1980).
In In re T.W., 551 So.2d 1186 (Fla.1989), the Florida Supreme Court held that a statute requiring a minor seeking an abortion to obtain parental consent or court authorization was unconstitutional. In addition to holding that the Florida right of privacy is applicable to a woman's decision to terminate her pregnancy, our supreme court reiterated what it held in Winfield, that the Florida right of privacy embraces more privacy interests, and extends more protection in those interests, than the Federal constitution. Our supreme court further noted in In re T.W. that up to that point no government intrusion into a personal decision had been found sufficiently compelling to overcome the individual's right to privacy. 551 So.2d at 1192. 1
Our supreme court also, in In re T.W., followed Roe v. Wade in concluding that the health of a pregnant woman does not become a compelling state interest until after the end of the first trimester of pregnancy:
Under Florida law, prior to the end of the first trimester, the abortion decision must be left to the woman and may not be significantly restricted by the state. Following this point, the state may impose significant restrictions only in the least intrusive manner designed to safeguard the health of the mother.
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