I'm gonna just give you the bottom line ruling now and then. I'm gonna tell you
how I got there. MS for purposes of the order. Mhm.
I'm finding that uh the statute in section I think it's *** house bill
five is unconstitutional and in that it violates the privacy provisions of the
florida constitution And does not meet the standards of the three Florida
Supreme Court cases that have interpreted the effect of that uh
constitutional provisions and abortion in florida.
Uh So I will be entering *** temporary injunction. It will be *** statewide
temporary injunction will only be effective when I signed an order. So it
will be not today.
So
I have made some notes and in the time I had and then there's some other
comments that I don't have notes for. So
uh florida passed into its constitution, an explicit right of privacy that is
not contained in the U. S. Constitution. The florida. Supreme Court has
determined in its words, quote, florida's privacy provision is clearly
implicated in *** woman's decision of whether or not to continue her
pregnancy. In other words, on the issue of abortion, the florida Supreme Court
has decided that women have *** privacy right under the State Constitution to
not have that Right impacted up to 24 weeks at least.
Further. The part of Supreme Court has found, quote, if *** Legislative Act
imposes *** significant restriction
on *** woman's right to seek an abortion, the act must further ***
compelling state interest through the least intrusive means that's the test
of the florida Supreme Court
here, the act effectively bans with extremely limited exceptions, pre
viable abortions previously permitted under florida law. The florida court
has held that the florida right of privacy is quote, much broader in scope
in scope than that of the Federal Constitution. End, quote. In the
in the case of T. W. Justice crimes in his concurring in part and dissenting.
In part, decision wrote
quote. If the United States Supreme Court were to subsequently received
from roe versus wade, this would not diminish the abortion rights now
provided by the privacy amendment of the florida constitution End, quote. In
2003, the Florida Supreme Court wrote, quote. Any comparison between the
federal and florida rights of privacy is in opposite. In light of the fact
that there is no express federal right of privacy cause. End, quote. The
florida. Supreme Court has explicitly rejected the federal standard that
required *** petitioner
in this case. That would be the plaintiffs has rejected the standard
that required the plaintiff to prove that *** regulation regarding abortion
has the purpose of placing *** substantial obstacle in the path of ***
woman seeking to assert her rights.
Thus, the plaintiffs in this case do not have *** threshold requirement
which by which they must show with facts and factual findings that the law
imposes *** significant restriction on *** woman's privacy rights.
The defendants can see as the florida Supreme Court has held that HB five is
subject to the Standard of review review, which the florida Supreme Court
called strict scrutiny.
Thus, per the Gainesville for the Supreme Court opinion. Any law that
implicates the fundamental right of privacy, regardless of the activity, is
subject to strict scrutiny and therefore is presumed to be
unconstitutional
in that case, the burden is on the defendant
to prove that the law advances *** compelling state interest through the
least restrictive means
here. The asserted interest by the state as outlined in its argument today,
are not legally sufficient to justify the statutory ban. I find the testimony
of the plaintiff's witnesses is more credible and rebut, rebuts that of the
defendants witnesses.
I uh
generally agree with the position set forth by the plaintiff in the
plaintiff's reply memorandum and in the plaintiff's oral argument.
Today, I was prepared to go through it more detail, but I'm not sure in light
of the time and length of time we've discussed these issues if that's
necessary. I think the
um
Pages 6, 3, 12 of the reply memo uh reflect many of these facts.
I do find the state has failed to prove prove by convincing or credible
evidence that this law. HB five exhibits *** compelling state interest
to be protected. I accept and incorporate the findings of fact by the
plaintiffs as I'll give you *** more detail in pleadings and arguments.
For example, this is an example of some of the findings of facts that I think
are appropriate. I'm not requiring that they all be put in what I want to
identify what I think has the evidence supports. And in the reply memo, I'll
just do this by paragraph number
with some edits to *** couple of paragraphs.
So in the reply memo, I'm looking at
let me find,
well, I think I'm just going to go through subject area and I will give
you other factual references and witness declarations.
But in the reply memo, The argument on page four deals with on the binding
Florida Supreme Court president. The plaintiffs have established ***
substantial likelihood of success on the merits, as I've indicated, and I
agree generally with the Rationale used on pages four and 5, page six HB five
ban does not advance but rather undermines maternal health. Page six. I
agree with that. On pages 678, nine and part of 10, the states asserted
interest in fetal pain is legally insufficient to satisfy strict scrutiny
and and unsupported by the evidence. I'll discuss that when I give you some
more detail on how I weigh the experts testimony
and um
I accept that the memorandum, the reply memorandum up, two plaintiffs are
entitled to facial to *** facial temporary injunction because there is
no set of circumstances in which the state can constitutionally deny any
pregnant person. The ability to effectuate her decision to have *** pre
viability abortion.
I also find that the plaintiffs have standing to assert the privacy rights
as discussed in the reply memo, and as further articulated today
in the argument by punish counsel,
I find that this is *** proper facial challenge as articulated in the
plaintiff's reply memo. And in today's argument,
I find that the elements of temporary injunction
is outlined in the reply memo and it's discussed by plaintiff's counsel today
have been met the four elements,
so I requested the point if
contain the order contained that.
Um
now I'm going this will take me *** little bit more time, but I'm going to
go through some of the notes here
of address. Standing plaintiffs have demonstrated irreparable harm that the
temporary injunction is in the public interest and that the injunction shall
be statewide
on the issues relating to science, the science and medicine of abortion. I
find plaintiffs experts dr teen
more ah knowledgeable and credible in her testimony better supported by
scientific and medical literature as well as her extensive experience
as *** medical doctor in the areas of maternal fetal medicine and obstetrics
and gynecology that I do. The witnesses provided by the defendants
dr conduct, who is testified as to the pain issue is not *** medical doctor
and has no direct experience in counseling women on abortion or
performing abortion procedures do not find dr convicts opinions as to the ***
fetus being capable of feeling pain at less than 24 weeks is properly
supported by the available scientific evidence. I find dr teen's testimony
that the earliest *** fetus can experience pain. Is that the uh
generally at the 24 week plus weeks based LMP last menstrual cycle based on
the fact that the brain is not sufficiently developed before then to
make the feeling of pain possible, even if one
dates the fetus feeling pain from the last menstrual cycle, doctor conduct
With that two weeks to her 10 to 12 week period. If this is accepted as
accurate, which I do not, it would mean that when in the 15th week of the new
law, *** fetus would be able to feel and appreciate pain. Therefore
eliminating the possibility of fetal pain.
It cannot be an abiding state interest supporting the statute because it would
still permit such pain based upon the expert testimony. I, however, do not
accept that expert testimony is accurate
or as being more credible than dr Teen's testimony, which I do find is
more credible and scientifically supported.
The more persuasive and reasonable interpretation of the evidence would
indicate that the ability to feel pain at the earliest begins in 24 weeks,
which has previously already been established by state law as the cut off
of the permissibility of an abortion because the fetus is considered to be
viable at that point.
Therefore,
the fetus, the scientific evidence supports the conclusion that do the
lack of brain development, fatal pain. Our ability to feel and recognize pain
doesn't start until approximately the 24 weeks or 24 plus weeks period.
Therefore avoiding fetal pain cannot be *** valid basis for reducing The
abortion period from 24 weeks to 15 weeks Dr conduct also testified that
the fetus is aware of self is capable of self awareness and consciousness
At somewhere between 14 and 20 weeks. Lmp. Which I do not find to be
supported by the most persuasive evidence in this case again because of
the lack of the brain development at that stage.
As I recall the evidence, her opinions are contrary to those of the American
College of Obstetricians and gynecologists. I believe also this is
subject to verification. The Royal College of Obstetricians and
Gynecologists And the Authoritative Journal of American Medical Association
article reference published in 2005.
As to anesthesiology for fetal surgery. I reject the opinions by DR conduct
that this is done to alleviate fetal pain,
but I accept the explanation by Dr teen who has actual experience as *** team
member for fetal surgeries as *** maternal fetal medicine specialist and
Dr conduct does not have that I expect I except doctor teens explanation.
Um
Mhm. Also Dr Condit testified. This is in
I think your testimony at page 268 in the case of planned Parenthood vs minor
that in 18 weeks LMP last minstrel period. *** clear and ambiguous case
would be difficult to make
that we have neural circuitry in place for fetus to have *** conscious
awareness of pain.
Her contention in this testimony, that conscious awareness of pain will be
possible with just the thalamus and without *** coral connection uh is not
uh as persuasive as Dr teams testimony in the scientific sources she cites
with respect to Dr scott, she is *** O. B. G. Y. N. 30 years practice
and um
she has never performed an abortion or participated as far as I know from her
testimony in an abortion procedure. I'm not sure if she's witnessed one or not
that her testimony would have to be checked. But also her practice members
of her practice when she was in private practice did not participate in
abortions.
She stated that she is not an expert in mental health evaluations or the mental
health area, but part of her testimony relate to the mental health
Dr Biggs provided *** detailed written response to dr scops opinions in regard
to the abortion and mental health issues, those issues as they relate to
each other. Dr. Biggs has *** PhD in psychology for over 20 years and is ***
faculty member at the University of California San Francisco
and has an incredible educational research and professional activities
background is reflected by her CV. Which is incorporated into this order.
She has extensive national and international experience service to
professional publications, invited presentations
In this country and internationally. She has 84 peer reviewed publications
and three book chapters by reference, *** peer review publication as I
understand, it is the highest rated professional publication for medical
literature that exists. Her written statement which is her which has been
admitted into evidence precisely precisely and persuasively rebuts the
positions of dr scott on the mental health issues.
Her analysis of the scientific literature is thorough and persuasive
for that reason. Which is unusual for me. I adopt her statement admitted into
record into the record and incorporated into this order. Her written
declaration. The findings she makes in there in the analysis she makes plus
the footnotes
are the best evidence in this case in regard to mental health. And our
so detailed is to be an example of the proper way to discuss scientific
evidence and to rebut another person's testimony with regard to scientific
literature.
Also, I find which I think I mentioned today in question when the state set
The 24 week cut off day,
the state of the quality of healthcare and of the procedure in question
ah
was not better than it is now. In fact, the evidence indicates that the medical
procedure that we've discussed in procedures are better with fewer
consequences, fewer risk and lower more mortality. That was the case in 1980.
So With the risk of abortion before 24 weeks
is low, very low in that set forth in DR teams testimony. I think she
identifies the risk of mortality risk of abortions lower than some dental
procedures. She didn't specify which ones, but also of um
colonoscopy
and other procedures,
even though there are risks with abortion, as there are with any medical
procedure. The testimony of risk in this case is sufficient to impair the
right of privacy with regard to this procedure, especially in the light of
the fact, there's no credible evidence that the risk have increased Since 1980.
In fact, the risk have decreased since 1980.