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State v. Gainesville Woman Care, LLC

Florida Court of Appeals, First District

August 1, 2019

State of Florida, Florida Department of Health, Celeste Philip, M.D., M.P.H., in her official capacity as Surgeon General and Secretary of Health for the State of Florida, Florida Board of Medicine, Jorge J. Lopez, M.D., in his official capacity as Chair of the Florida Board of Medicine, Florida Board of Osteopathic Medicine, Joel B. Rose, D.O., in his official capacity as Chair of the Florida Board of Osteopathic Medicine, Florida Agency for Health Care Administration, and Mary C. Mayhew, in her official capacity as Secretary of the Florida Agency for Health Care Administration, Appellants,
v.
Gainesville Woman Care, LLC, d/b/a Bread and Roses Women's Health Center, and Medical Students for Choice, Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Leon County. Terry P. Lewis, Judge.

          Ashley Moody, Attorney General, Amit Agarwal, Solicitor General, Edward M. Wenger, Chief Deputy Solicitor General, and James H. Percival, Deputy Solicitor General, Tallahassee, for Appellants.

          Autumn Katz, Center for Reproductive Rights, New York; Richard E. Johnson, Law Office of Richard E. Johnson, Tallahassee; Julia Kaye, American Civil Liberties Union Foundation, New York; and Benjamin James Stevenson, American Civil Liberties Union Foundation of Florida, Pensacola, for Appellees.

          OSTERHAUS, J.

         Appellees, Gainesville Woman Care, LLC, d/b/a Bread and Roses Women's Health Center, and Medical Students for Choice, have challenged an amendment to Florida's abortion law requiring 24 hours to pass between the time a patient is informed of the nature and risks of having an abortion and a physician's completion of the procedure. Ch. 2015-118, Laws of Fla.; § 390.0111(3), Fla. Stat. (2018). They assert that this 24-hour Law, on its face, violates the Florida Constitution's right of privacy provision, article I, § 23.

         Based on the Florida Supreme Court's earlier decision to temporarily enjoin the 24-hour Law's enforcement, Appellees moved for final summary judgment and prevailed in the trial court. Since the temporary injunction phase of this case, however, the State has built a case that raises genuine issues of material fact. Among the remaining unresolved issues is the parties' dispute about the informed consent medical standard of care. Appellees' summary judgment motion asserted that the 24-hour Law deviates from the accepted standard of medical care in Florida by requiring the 24-hour delay and an unnecessary visit to a physician. But the State produced conflicting evidence from medical experts that the absence of such a decision-period after receiving information about the nature and risks of an abortion procedure and the procedure itself falls below the accepted medical standard of care. If the State's experts prove correct, that the 24-hour Law brings Florida in-line with the informed consent standard of care, then the law would pass muster under the Florida Supreme Court's decision approving informed consent in the abortion context. See State v. Presidential Women's Ctr., 937 So.2d 114 (Fla. 2006); cf. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 885-87 (1992) (approving a 24-hour waiting period under the United States Constitution). Because material facts still divide the parties, and all doubts about the existence of genuine issues of material fact must be resolved in the State's favor for purposes of deciding Appellees' summary judgment motion, we reverse and remand for further proceedings.

         I.

         The Woman's Right to Know Act, § 390.0111(3), Fla. Stat., generally prohibits abortions unless the physician obtains informed consent from a patient. In 2015, the Legislature amended the Act to require a 24-hour period between the time a pregnant woman receives the statutorily required informed consent information and completion of the procedure. § 390.0111(3)(a)1, Fla. Stat.; see also Gainesville Woman Care, LLC v. State, 210 So.3d 1243, 1248 (Fla. 2017) (describing and quoting the 24-hour Law). The 24-hour Law has some exceptions. For example, a physician can forego the 24-hour period if there is a medical emergency, or if the patient is a victim of rape, incest, domestic violence, or human trafficking. § 390.0111(3)(a)1.c. & (3)(b), Fla. Stat.

         Soon after the 24-hour Law was enacted, Appellees filed a complaint challenging its facial constitutionality. Appellees also filed a motion to temporarily enjoin the 24-hour Law from being enforced while the courts decided its challenge. The trial court granted the temporary injunction and appeals were taken. The Florida Supreme Court ultimately allowed the injunction based on the evidence presented by Appellees at the temporary injunction hearing, and because the State didn't offer any rebuttal evidence. See Gainesville Woman Care, 210 So.3d at 1260-62 ("The State presented no evidence to indicate that the prior, neutral informed consent statute . . . is inadequate and requires the revisions enacted by the Legislature."). In view of the trial court's finding that the 24-hour Law "imposes a significant restriction on all women's fundamental right of privacy," the Court approved the injunction. Id. at 1264-65.

         After the Florida Supreme Court's injunction decision, Appellees moved for final summary judgment on the merits of its constitutional challenge. Citing the Florida Supreme Court's temporary injunction decision, Appellees argued that the 24-hour Law cannot survive strict scrutiny and doesn't further a compelling state interest. The State opposed final summary judgment by producing evidence supporting the law's constitutionality which hadn't been offered at the temporary injunction stage of the case.

         The State argued that the 24-hour Law advanced its compelling interest in ensuring truly informed and voluntary consent and was tailored lawfully toward this goal. Its evidence included declarations from two apparently well-credentialed medical doctors asserting that a 24-hour waiting period is necessary to comply with the accepted medical standard of care for informed consent. Dr. Hector Vila is a board-certified anesthesiologist, who served on the Florida Board of Medicine; is a member of the American Society of Anesthesiologists, serving on the Ambulatory Surgery Committee; and is a member of the American Association for Accreditation of Ambulatory Surgery Facilities Board of Directors. Dr. Vila claimed extensive familiarity with the medical and professional standards for outpatient surgery. Dr. Vila's declaration stated that he is "not aware of another area of medicine, besides abortion, in which a nonemergency outpatient invasive procedure is performed without a prior visit and consultation." And he stated that the lack of a 24hour waiting period "would fall below the acceptable medical standard of care."

         The State's other medical declarant, Dr. Carlos Lamoutte, is a board-certified obstetrician-gynecologist. He stated that, other than abortion, he was "not aware of any non-emergency outpatient gynecological procedures that are routinely performed on a same-day basis." "As a matter of standard practice," when a patient considers "any sort of invasive or nontrivial procedure," Dr. Lamoutte consults with the patient and then schedules the procedure "for a later date." On occasion, Dr. Lamoutte has performed very minor procedures during the same appointment which he consulted the patient, but "[e]ven these extremely minor procedures are not done on a same-day basis in the ordinary course, but only in certain instances."

         The State also filed the declaration of Priscilla K. Coleman, Ph.D., and others, addressing the mental health effects and negative outcomes associated with women not receiving adequate time to reflect before making an abortion decision. Professor Coleman said that "waiting periods in other states are associated with improved mental health among females as evidenced by a significant drop in suicide rates."

         Appellees did not counter the State's declarations with medical or other evidence but relied on the temporary injunction decision and legal arguments to support its summary judgment motion. The trial court granted Appellees' motion for final summary judgment. Its order declared the 24-hour Law to be facially unconstitutional and it permanently enjoined its enforcement. The court acknowledged the State to have a compelling interest in ensuring that that women's consent to abortion is fully informed and genuinely voluntary. But it found no remaining genuine issue of material fact as to whether the 24-hour Law could survive strict scrutiny. The trial court rejected the State's medical evidence because it didn't think that practitioners employed decision-periods for procedures comparable to abortion, except on a discretionary basis. The court also discounted the State's mental health evidence. It concluded that similar trauma exists with other medical procedures, so that the Legislature wasn't justified in "singling out abortions for the mandatory delay." The trial court did not state whether it was invalidating the law under Florida's traditional no-set-of-circumstances test for facial challenges. But it highlighted particular circumstances in which the law might not constitutionally apply-situations where women possess sophisticated medical knowledge, are certain of their decision, have suffered violence, live far away from a clinic, or have previously reviewed the required information-in finding the 24-hour Law to be too broad. The State timely appealed the final summary judgment order.

         II.

         The standard of review of a final summary judgment is de novo. Bowman v. Barker, 172 So.3d 1013, 1014 (Fla. 1st DCA 2015). "The movant must demonstrate conclusively that no genuine issue exists as to any material fact, and the court must draw every possible inference in favor of the party opposing summary judgment." Id. at 1015. Summary judgment should not be granted "unless the facts are so crystallized that ...


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