By Dave Andrusko

Leon County Circuit Judge Terry Lewis
When the state of Florida filed its brief defending its 24-hour waiting period for abortion-minded women, it asked Leon County Circuit Judge Terry Lewis for more time to develop its case why HB 633 meets constitutional muster.
Yesterday Judge Lewis granted Deputy Solicitor General Denise Harle’s request–an additional sixty days–but if media accounts of the hearing are accurate, he was none too pleased the state wasn’t ready to go. (HB 633 was passed two years ago and unforced ever since as court after court has debated procedural issues.)
The Palm Beach Post’s Dara Kam wrote
“I’m very skeptical in terms of the state’s suggestion that they need more time. If I were in your shoes, I think I would have been ready a long time ago,” Lewis said during an hour-long hearing Wednesday.
But he also said,
“On the other hand, I think it’s very important that, whatever happens here, there is a complete record.”
Harle did not back down. According to Kam, Harle told the judge
that the state needs more time to gather data about women in other states who have changed their minds after having to wait 24 hours before getting the procedure.
The evidence could show that what Harle called “a very short period of time,” meaning 24 hours, would be the minimum required for women to give what is called “informed consent” prior to undergoing the [abortion] procedure.
“The fact that a 24-hour waiting period would cause some people to change their mind … undermines the idea that informed consent … can be instantaneous,” Harle said.
The plaintiffs–an abortion clinic, Gainesville Woman Care and a raft of lawyers from the ACLU of Florida and the Center for Reproductive Rights–countered that the law was unconstitutional for several reasons, including it conflicted with the “right to privacy” in the Florida state Constitution.
They also argued that no similar waiting period is required of various other “medical procedures,” none of which, of course, involves ending the life of an another human being.
Pro-life Florida Gov. Rick Scott signed HB 633 into law on June 10, 2015. Two weeks later, Circuit Court Judge Charles Francis agreed with the plaintiffs and prevented the law from going into effect.
But the state appealed to Florida’s First District Court of Appeals. On February 26, 2016, the court reversed the injunction order and immediately reinstated the law. The plaintiffs appealed to the Florida Supreme Court.
On April 2016, in a 5-2 decision, the Florida Supreme Court halted the law and its protections until the justices made a decision whether to take the case. A month later, the Court formally accepted the case for review.
Last February, in its 4-2 decision written by Justice Barbara Pariente, the justices upheld the temporary injunction. The effect was to reverse a lower court opinion and uphold a temporary injunction against the law. Again, the underlying issue–the law’s constitutionality–has yet to be directly addressed, although the position of various justices seems pretty clear.
Justice Pariente relied heavily on the state Constitution’s right to privacy, and concluded the 2015 law has a “substantial likelihood” of being ruled unconstitutional.
Justices Charles Canady and Ricky Polston dissented. They wrote “there is no basis” for the other justices “to conclude that the abortion clinic that sued the state over the law would ‘prevail in meeting their heavy burden’ of proof in the case,” according to Michael Auslen of the Miami Herald [www.miamiherald.com/news/state/florida/article133096884.html].
Writing for the Tampa Bay Times, Kristen M. Clark reported that in granting the state an additional 60 days, Judge Lewis was
indicating that he wanted to make sure the record was complete in the event the case would be appealed.
“I think it’s going to come down to the plaintiffs are not going to dispute your facts, they’re just going to say they’re irrelevant,” Lewis told Harle.
The judge said “it would be a lot cleaner” to allow the state to present its evidence “because I don’t think we can just rely on the appellate opinions” offered by the plaintiffs.