A four-year-old fight to stop Florida's 24-hour waiting period for abortions suffered a setback on Thursday when an appeals court ruled that a judge shouldn't have declared the law unconstitutional without a full trial.
In a 2-1 ruling, the 1st District Court of Appeal sent the lawsuit back to the circuit court, saying the state has built evidence that supports the constitutionality of the law. The law is being challenged by the American Civil Liberties Union on behalf of a Gainesville abortion clinic.
A state Supreme Court injunction has prevented the waiting period signed into law by then-Republican Gov. Rick Scott in 2015 from being implemented. That injunction will remain in place while the lawsuit goes to trial.
In 2018, Circuit Judge Terry Lewis issued a summary judgment calling the law unconstitutional. His ruling came after the state Supreme Court temporarily blocked the law on a 4-2 ruling.
The appeals court agreed that the state put up a "feeble" case when it sought to stop the Supreme Court's injunction. But when the Supreme Court sent the case back to the trial court, the state presented a stronger argument opposing the summary judgment, the decision said.
"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 ruling said.
That evidence included medical experts who said no other non-emergency, outpatient invasive procedure is done on demand without a prior consultation. The appeals court said ACLU and Bread and Roses Women's Health Center decided to stand pat with the argument it used before the Supreme Court instead of countering the state's new evidence.
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"We are disappointed that the court failed to recognize what we all know — a 24-hour delay was designed to and plainly does unnecessarily restrict access to safe and legal reproductive health care. We look forward to proving these facts at trial," Benjamin Stevenson, a lawyer for ACLU of Florida, said in an emailed statement.
While the Supreme Court's injunction remains in place, three of the justices who supported it have been forced off the bench because of a mandatory retirement age. They were replaced by conservative judges after Republican Gov. Ron DeSantis took office in January.
DeSantis's office and Attorney General Ashley Moody's office didn't immediately respond to requests for comment.
Then-Republican Gov. Rick Scott signed the abortion waiting period into law in 2015.
