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,
Gainesville Woman Care, LLC, d/b/a Bread and Roses Women's Health Center, and Medical Students for Choice, Appellees.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. Terry P.
Moody, Attorney General, Amit Agarwal, Solicitor General,
Edward M. Wenger, Chief Deputy Solicitor General, and James
H. Percival, Deputy Solicitor General, Tallahassee, for
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.
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.
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.
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.
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.
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.
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."
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
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
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
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 ...