Opinion

Gainesville Woman Care, LLC v. State of Florida

42 Fla. L. Weekly Supp. 183
210 So. 3d 1243
2017 Fla. LEXIS 340
2017 WL 633772

Court: Supreme Court of Florida
Filed: Feb 16, 2017
Status: Published
On the bench: Pariente, Labarga, Lewis, Quince, Canady, Polston, Lawson
Cited by: 38 cases
Authority: More cited than 3.5%

holding: “The standard of review of trial court orders on requests for temporary injunctions is a hybrid. To the extent the trial court's order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review”

How later courts described this case

holding: “The standard of review of trial court orders on requests for temporary injunctions is a hybrid. To the extent the trial court's order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review”
holding that the right of privacy under the state constitution encompasses a woman’s right to choose to end her pregnancy
holding the express privacy clause in Article I, section 23 of the Florida Constitution—added in 1980—protects abortion as a fundamental right
“The State presented no evidence to indicate that the prior, neutral informed consent statute . . . is inadequate and requires the revisions enacted by the Legislature.”

Written by the judges who cited it.

The opinion

Supreme Court of Florida

____________

No. SC16-381

____________

GAINESVILLE WOMAN CARE, LLC, et al.,

Petitioners,

vs.

STATE OF FLORIDA, et al.,

Respondents.

[February 16, 2017]

PARIENTE, J.

The issue in this case is whether the trial court properly applied strict

scrutiny when reviewing the Mandatory Delay Law, which imposes an additional

twenty-four hour waiting period on women seeking to terminate their pregnancies.

See ch. 2015-118 § 1, Laws of Fla. (codified at § 390.0111(3), Fla. Stat. (2015))

(“Mandatory Delay Law”). The Mandatory Delay Law implicates the Florida

Constitution’s express right of privacy. In Florida, any law that implicates the

fundamental right of privacy, regardless of the activity, is subject to strict scrutiny

and, therefore, presumptively unconstitutional. Accordingly, we hold that the trial

court correctly applied strict scrutiny in reviewing the Mandatory Delay Law’s

constitutionality.

We conclude that the First District Court of Appeal misapplied and

misconstrued our precedent by placing the initial evidentiary burden on Petitioners

to prove a “significant restriction” on Florida’s constitutional right of privacy

before subjecting the Mandatory Delay Law to strict scrutiny. State v. Gainesville

Woman Care, LLC, 187 So. 3d 279, 282 (Fla. 1st DCA 2016).1 Put simply, there

is no additional evidentiary burden on challengers to establish by sufficient,

factually supported findings showing a law imposes a “significant restriction” on

the right of privacy before a law that implicates the right of privacy is subjected to

strict scrutiny.

Florida’s constitutional right of privacy contained in article I, section 23,

establishes the right of every person to “be let alone and free from governmental

1. We have jurisdiction based on the First District Court of Appeal’s

misapplication of our precedent in North Florida Women’s Health & Counseling

Services, Inc. v. State, 866 So. 2d 612 (Fla. 2003), and In re T.W., 551 So. 2d 1186

(Fla. 1989), regarding strict scrutiny review of statutes that infringe on the right of

privacy. Art. V, § 3(b)(3), Fla. Const.; see also Engle v. Liggett Grp., Inc., 945

So. 2d 1246, 1254 (Fla. 2006) (identifying misapplication of precedent as one

means of supplying conflict jurisdiction); Aguilera v. Inservices., Inc., 905 So. 2d

84, 86 (Fla. 2005) (same); Robertson v. State, 829 So. 2d 901, 904 (Fla. 2002)

(same); Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1272 (Fla. 2000) (same); State

v. Stacey, 482 So. 2d 1350, 1350 (Fla. 1985) (same); Arab Termite & Pest Control

of Fla., Inc. v. Jenkins, 409 So. 2d 1039, 1040 (Fla. 1982) (same).

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intrusion into [one’s] private life.” Art. I, § 23, Fla. Const. Because the right of

privacy is a fundamental right within Florida’s constitution, this Court consistently

has required that any law intruding on this right is presumptively unconstitutional

and must be justified by a “compelling state interest” which the law serves or

protects through the “least restrictive means.” Winfield v. Div. of Pari-Mutuel

Wagering, Dep’t of Bus. Regulation, 477 So. 2d 544, 547 (Fla. 1985); see also N.

Fla. Women’s Health & Counseling Servs., Inc. v. Florida, 866 So. 2d 612, 632

(Fla. 2003); In re T.W., 551 So. 2d 1186, 1191-92 (Fla. 1989).

Because the Mandatory Delay Law infringes on a woman’s right of privacy,

the State bore the burden at the temporary injunction hearing to prove that the

Mandatory Delay Law survives strict scrutiny. The State, however, presented no

evidence of a compelling state interest, much less that the law served such an

interest through the least restrictive means. In addition, the First District

disregarded the fact that the challengers did present evidence, which the trial court

properly relied on, that the Mandatory Delay Law would result in additional costs

and additional trips to the physician and that any delay could affect the type of

procedure being performed.

Beyond placing an additional initial evidentiary burden on Petitioners, the

First District also misinterpreted and misconstrued our precedent concerning the

right of privacy by requiring, on remand, that the trial court consider a list of

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speculative state interests, none of which this Court has ever recognized as

compelling. Gainesville Woman Care, 187 So. 3d at 282. The trial court, on the

other hand, correctly applied strict scrutiny in determining Petitioners’ likelihood

of success on the merits because the law, both facially and based on evidence

presented, clearly infringes on the constitutional right of privacy. Petitioners

presented unrebutted evidence establishing that the Mandatory Delay Law impedes

a woman’s ability to terminate her pregnancy for at least an additional twenty-four

hours and requires the woman to make a second, medically unnecessary trip, which

adds additional costs and delay. As Dr. Christine Curry stated in a verified

affidavit, which the trial court considered:

Such delays may push women past the gestational limit when

medication abortion is available. This will force women for whom a

medication abortion is clinically indicated to undergo a procedure that

is less safe for them. It will also force a woman who prefers a

medication abortion for psychological reasons to undergo a surgical

abortion, which may harm her emotional and psychological state, and

this pertains especially to victims of sexual trauma. In other cases,

delays may push women past the gestational limit of the nearest

abortion provider, forcing them to travel farther. This, in turn, is very

likely to create further delay, increasing the risks of the procedure.

Some may disagree and argue that the State should force women to endure

an additional twenty-four hour waiting period after they have chosen to terminate

their pregnancy, regardless of the fact that such a waiting period is not required of

any other medical procedure including those gynecological procedures that are far

more risky than termination of pregnancy. Whether it is a good idea to mandate

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that women seeking to terminate their pregnancies wait a minimum of an

additional twenty-four hours before allowing them to receive medical treatment is

not the point. As Petitioners cogently explain, women may take as long as they

need to make this deeply personal decision both before and after they receive the

state-mandated information. But through the Mandatory Delay Law, the State

impermissibly interferes with women’s fundamental right of privacy by mandating

an additional twenty-four hour waiting period before a woman may exercise her

decision after receiving all of the information the state deems necessary to make an

educated and informed decision.

We recognize that a woman’s right to choose remains a highly emotional

issue that still divides our country many decades after the United States Supreme

Court’s decision in Roe v. Wade, 410 U.S. 113 (1973). Indeed, a substantial

minority in this country believe that women should have no right to choose to

terminate a pregnancy at any time after conception.2 We emphasize that this case

has nothing to do with when the State’s interest in restricting women’s right to

choose to terminate a pregnancy based on the viability of the fetus becomes

compelling.

2. See Abortion, Gallup, http://www.gallup.com/poll/1576/abortion.aspx

(last visited Feb. 1, 2017) (finding that, as of May 2016, nineteen percent of the

country believe that abortion should be illegal under all circumstances).

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We agree with the trial court that, based on this Court’s precedent,

Petitioners have established a substantial likelihood of success on the merits, one

of the requirements of granting a temporary injunction, as well as all other grounds

for the entry of a temporary injunction. For reasons more fully explained below,

we quash the First District’s decision with instructions that the temporary

injunction and accompanying stay of the Mandatory Delay Law remain in effect

pending a hearing on Petitioners’ request for a permanent injunction.

FLORIDA’S MANDATORY DELAY LAW

Florida’s general informed consent law requires that, for a patient to give

valid, informed consent to any medical treatment in Florida, the health care

professional must conform to “an accepted standard of medical practice among

members of the medical profession” and provide information conveying three

things: (1) the nature of the procedure, (2) the medically acceptable alternatives to

the procedure, and (3) the procedure’s substantial risks. § 766.103(3)(a)1.-2., Fla.

Stat. (2016). In addition, in 1997, the Florida Legislature passed the “Woman’s

Right to Know Act,” an informed consent statute specific to procedures involving

the termination of pregnancies. Ch. 97-151, Laws of Fla. This Court upheld the

Woman’s Right to Know Act in 2006, only after the State conceded to a limiting

interpretation of the law and this Court interpreted the law to require physicians to

discuss only medical risks of either terminating or continuing the pregnancy and

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that the scope of the advice was patient-driven. See State v. Presidential Women’s

Ctr., 937 So. 2d 114, 120 (Fla. 2006).

The Woman’s Right to Know Act requires the physician to inform the

patient of “[t]he nature and risks of undergoing or not undergoing” the termination

of pregnancy procedure, “[t]he probable gestational age of the fetus,” and some

other, additional information. See § 390.0111(3)(a), Fla. Stat. (2015). In 2015, the

Florida Legislature amended the Woman’s Right to Know Act to require that a

woman be given the statutorily required information at least twenty-four hours

prior to the termination of pregnancy procedure. Ch. 2015-118 § 1, Laws of Fla.

(codified at § 390.0111(3)). These amendments constitute the Mandatory Delay

Law. 3

3. Florida Law currently only allows third-trimester abortions under the

following two conditions:

(a) Two physicians certify in writing that, in reasonable medical

judgment, the termination of the pregnancy is necessary to save the

pregnant woman’s life or avert a serious risk of substantial and

irreversible physical impairment of a major bodily function of the

pregnant woman other than a psychological condition.

(b) The physician certifies in writing that, in reasonable medical

judgment, there is a medical necessity for legitimate emergency

medical procedures for termination of the pregnancy to save the

pregnant woman’s life or avert a serious risk of imminent substantial

and irreversible physical impairment of a major bodily function of the

pregnant woman other than a psychological condition, and another

physician is not available for consultation.

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The Mandatory Delay Law does not require a woman to receive any new

information beyond what the Woman’s Right to Know Act requires. As amended,

section 390.0111(3)(a) states:

(3) CONSENTS REQUIRED.—A termination of pregnancy

may not be performed or induced except with the voluntary and

informed written consent of the pregnant woman or, in the case of a

mental incompetent, the voluntary and informed written consent of

her court-appointed guardian.

(a) Except in the case of a medical emergency, consent to a

termination of pregnancy is voluntary and informed only if:

1. The physician who is to perform the procedure, or the

referring physician, has, at a minimum, orally, while physically

present in the same room, and at least 24 hours before the procedure

in person, informed the woman of:

a. The nature and risks of undergoing or not undergoing the

proposed procedure that a reasonable patient would consider material

to making a knowing and willful decision of whether to terminate a

pregnancy.

b. The probable gestational age of the fetus, verified by an

ultrasound, at the time the termination of pregnancy is to be

performed.

(I) The ultrasound must be performed by the physician

who is to perform the abortion or by a person having documented

evidence that he or she has completed a course in the operation of

ultrasound equipment as prescribed by rule and who is working in

conjunction with the physician.

§ 390.0111(1), Fla. Stat. (2016). However, the Mandatory Delay Law contains an

exception that allows the physician to forego the twenty-four hour waiting period

“[i]f a medical emergency exists and a physician cannot comply with the

requirements for informed consent.” Id. § 390.0111(3)(b). This exception would

certainly be satisfied in the context of post-viability abortions. Accordingly, the

requirements of the Mandatory Delay Law, generally, will only apply to first- and

second-trimester abortions.

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(II) The person performing the ultrasound must offer the

woman the opportunity to view the live ultrasound images and hear an

explanation of them. . . .

(III) The woman has a right to decline to view and hear the

explanation of the live ultrasound images after she is informed of her

right and offered an opportunity to view the images and hear the

explanation. If the woman declines, the woman shall complete a form

acknowledging that she was offered an opportunity to view and hear

the explanation of the images but that she declined that opportunity.

The form must also indicate that the woman’s decision was not based

on any undue influence from any person to discourage her from

viewing the images or hearing the explanation and that she declined of

her own free will.

(IV) [Exceptions to the ultrasound when the] woman is

obtaining the abortion because the woman is a victim of rape, incest,

domestic violence, or human trafficking or that the woman has been

diagnosed as having a condition that, on the basis of a physician’s

good faith clinical judgment, would create a serious risk of substantial

and irreversible impairment of a major bodily function if the woman

delayed terminating her pregnancy.

c. The medical risks to the woman and fetus of carrying the

pregnancy to term.

The physician may provide the information required in this

subparagraph within 24 hours before the procedure if requested by the

woman at the time she schedules or arrives for her appointment to

obtain an abortion and if she presents to the physician a copy of a

restraining order, police report, medical record, or other court order or

documentation evidencing that she is obtaining the abortion because

she is a victim of rape, incest, domestic violence, or human

trafficking.

2. Printed materials prepared and provided by the department

have been provided to the pregnant woman, if she chooses to view

these materials, including:

a. A description of the fetus, including a description of the

various stages of development.

b. A list of entities that offer alternatives to terminating the

pregnancy.

c. Detailed information on the availability of medical

assistance benefits for prenatal care, childbirth, and neonatal care.

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3. The woman acknowledges in writing, before the termination

of pregnancy, that the information required to be provided under this

subsection has been provided.

Nothing in this paragraph is intended to prohibit a physician from

providing any additional information which the physician deems

material to the woman’s informed decision to terminate her

pregnancy.

Ch. 2015-118, § 1, Laws of Fla. (deletions indicated by strike-through type and

additions indicated by underline) (codified at § 390.0111(3)(a), Fla. Stat. (2015)).

THE TEMPORARY INJUNCTION AND THE FIRST DISTRICT OPINION

Shortly after the Mandatory Delay Law’s enactment, on June 11, 2015,

Petitioners, Gainesville Woman Care, LLC, and Medical Students for Choice

(collectively referred to as “GWC”), filed a complaint in the Second Judicial

Circuit challenging the validity of the Mandatory Delay Law as a violation of the

privacy rights of Florida women under article I, section 23, of the Florida

Constitution, and as a violation of GWC’s and its patients’ rights of equal

protection of the laws of the State of Florida under article I, section 2, of the

Florida Constitution. The same day, GWC filed a Motion for an Emergency

Temporary Injunction and/or Temporary Injunction grounded solely on the right of

privacy challenge set forth in their complaint. The trial court held an evidentiary

hearing relating to GWC’s request for a temporary injunction on June 25, 2015.

The parties agreed that the trial court would consider the pleadings, together with

the declarations filed with GWC’s motion and supplemental reply, and that the

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parties would be authorized, but not required, to present any additional evidence at

that time.

At the evidentiary hearing, both parties presented legal arguments.

Additionally, GWC submitted the verified affidavit of Dr. Christine L. Curry as

supplemental evidence that the Mandatory Delay Law was unconstitutional. The

State did not present any evidence to counter Dr. Curry’s assertions. In her

affidavit, Dr. Curry stated that abortion is one of the safest medical procedures in

the United States. Indeed, Dr. Curry asserted that a woman is approximately

fourteen times more likely to die from childbirth than during an abortion. Dr.

Curry also opined that, in her experience, “whatever a woman’s reasons for

terminating a pregnancy, she makes the decision thoughtfully after much

consideration and deliberation with those she includes in her process: her family,

friends, and/or physician.” Finally, Dr. Curry stated:

14. The [Mandatory Delay Law] singles out abortion

procedures from all other medical procedures to impose a twenty-

four-hour delay and an additional-trip requirement, with no medical

benefit to the patient. . . . It is my opinion that by forcing women

seeking abortions—but not patients seeking any other medical

procedure, including those riskier than abortion—to wait twenty-four

hours and to make an additional visit to the medical provider before

they can obtain the treatment, the [Mandatory Delay Law] will harm

Florida women seeking abortion and undermine the physician-patient

relationship. It will prevent physicians from administering the care

they believe will protect their patients’ well-being.

15. By forcing women to delay the procedure at least twenty-

four hours and to make arrange[sic] for an additional trip to a

provider, the [Mandatory Delay Law] will cause women to delay their

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abortion by at least one day, and in some cases, even longer. Such

delays may push women past the gestational limit when medication

abortion is available. This will force women for whom a medication

abortion is clinically indicated to undergo a procedure that is less safe

for them. It will also force a woman who prefers a medication

abortion for psychological reasons to undergo a surgical abortion,

which may harm her emotional and psychological state, and this

pertains especially to victims of sexual trauma. In other cases, delays

may push women past the gestational limit of the nearest abortion

provider, forcing them to travel farther. This, in turn, is very likely to

create further delay, increasing the risks of the procedure.

On July 1, 2015, the trial court issued its order granting GWC’s request for a

temporary injunction. In its order, the trial court explained:

Defendants concede the unavailability of an adequate remedy at law if

the law goes into effect and is found to be unconstitutional. This

Court’s decision on whether Plaintiffs have carried their burden to

show that they are likely to succeed on their position that the

constitutional right to privacy is implicated by [the Mandatory Delay

Law], and if so, whether the Defendants have sufficiently shown that

[the Mandatory Delay Law] meets the “strict” scrutiny standards

required will provide the answers to whether there is irreparable harm

and determine the public interest issue. In simple terms, the question

presented to this Court is whether Plaintiffs have sufficiently shown

that the requirements of [the Mandatory Delay Law] impose a

“significant burden,” as opposed to an insignificant burden, on a

woman’s right to an abortion.

Ultimately, the trial court concluded that “the Court has no evidence in front of it

in which to make any factual determination that a 24-hour waiting period with the

accompanying second trip necessitated by the same is not an additional burden on

a woman’s right of privacy under the [sic] Florida’s Right of Privacy Clause,” and

consequently found that the Mandatory Delay Law infringed Florida women’s

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fundamental right of privacy. Accordingly, the trial court applied the strict

scrutiny standard of review, shifting the burden to the State to prove that the law

furthered a compelling state interest by the least restrictive means. To that end, the

trial court concluded:

Defendants are clearly basing their defense of the legislation to

[sic] the ruling of the Florida Supreme Court in State v. Presidential

Woman’s Center, 937 So. 2d 114 (Fla. 2006). Their logic is

simplistic, but not necessarily incorrect. The legislature’s right to

require informed consent has been upheld as being grounded in the

common law. Id. at 118. The Defendants’ pleading clearly

establishes that a number of states have a waiting period, although it is

also clear that most, if not all, were established under the “undue

burden” standard. See cases cited in Defendants’ Response in

Opposition, pp 10-11. What the Defendants have failed in any way to

provide this Court is any evidence that there is a compelling state

interest to be protected in enhancing the informed consent already

required of women and approved by the Supreme Court of Florida in

Presidential Woman’s Center, supra. There are no findings of fact or

statements of legislative intent set forth in [the Mandatory Delay

Law]. After an evidentiary hearing, the Court has no evidence in front

of it in which to make any factual determination that a 24-hour

waiting period with the accompanying second trip necessitated by the

same is not an additional burden on a woman’s right of privacy under

the Florida’s Right of Privacy Clause.

....

In this proceeding, the only evidence before the Court is that

“Florida law does not require a twenty-four-hour waiting period for

other gynecological procedures with comparable risk, or any other

procedure I perform in my practice.” Declaration of Christine Curry,

M.D., Ph.D., p 4. This is a major issue in the case that the Defendants

fail to address. Defendants simply state that thirteen other states have

a waiting period and the United States Supreme Court has ruled it is

not unconstitutional under federal law. However, our Supreme Court

has clearly stated that federal law has no bearing on Florida’s more

extensive right of privacy.

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The State appealed. See Gainesville Woman Care, 187 So. 3d at 281.

Overturning the trial court’s order granting the temporary injunction, the First

District concluded that the “trial court failed to set forth clear, definite, and

unequivocally sufficient factual findings supporting the three disputed elements of

an injunction.” Id. The First District also took issue with the trial court’s failure to

consider the State’s arguments, stating:

The trial court did not address the State’s arguments, such as whether,

in passing the privacy amendment in 1980, voters intended to deprive

Florida and its citizens of the benefits of advances in medical

knowledge and evolutions in federal law recognizing increasingly

compelling state interests arising from, among other factors, the

potentiality of life uniquely represented by the human fetus.

Likewise, the trial court did not address the evidence of intent

reflected in the State’s many post-1980 laws and regulations specific

to abortion; nor the evidence of voter intent reflected in the 2004

adoption of article X, section 22, of the Florida Constitution, which in

effect overruled North Florida Women’s and authorized a requirement

of parental notice of termination of a minor’s pregnancy.

Id. at 282.

The First District concluded that the trial court erred by failing to consider

the compelling state interests advanced by the State, including:

[P]roviding women a short time to reflect privately after receiving

required relevant information, in maintaining the integrity of the

medical profession by making that post-informed reflective time free

from influence by a physician or clinic personnel, in protecting the

unique potentiality of human life, in protecting the organic law of

Florida from interpretations and impacts never contemplated or

approved by Floridians or their elected representatives, and in

protecting the viability of a duly-enacted state law.

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Id. Finally, the First District held that the trial court’s order was also deficient for

“failing to address the legal requirements for a facial constitutional challenge to a

statute.” Id.

GWC petitioned this Court for review based on the First District having

misapplied our precedent concerning the right of privacy in article I, section 23, of

the Florida Constitution and, in so doing, specifically construing that provision of

the Florida Constitution. Because the First District lifted the stay of the Mandatory

Delay Law that had been in effect since the law was enacted, GWC also filed a

motion to stay, which this Court granted.

ANALYSIS

Fundamental Right of Privacy

Article I, section 23, of the Florida Constitution, added by Florida voters in

1980, has remained unchanged since it was adopted. See art. I, § 23, Fla. Const.

(1980). This Court has broadly interpreted that right, stating:

The citizens of Florida opted for more protection from

governmental intrusion when they approved article I, section 23, of

the Florida Constitution. This amendment is an independent,

freestanding constitutional provision which declares the fundamental

right to privacy. Article I, section 23, was intentionally phrased in

strong terms. The drafters of the amendment rejected the use of the

words “unreasonable” or “unwarranted” before the phrase

“governmental intrusion” in order to make the privacy right as strong

as possible. Since the people of this state exercised their prerogative

and enacted an amendment to the Florida Constitution which

expressly and succinctly provides for a strong right of privacy not

found in the United States Constitution, it can only be concluded that

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the right is much broader in scope than that of the Federal

Constitution.

Winfield, 477 So. 2d at 548. In Winfield, the Court applied a strict scrutiny test in

reviewing an attempt by the Pari-Mutuel Wagering Department of the Florida

Department of Business and Professional Regulation to subpoena individuals’

financial records because, the Court reasoned, subpoenaing the records intruded

upon an individual’s legitimate expectation of privacy as a matter of law. Id. The

Court explained:

The right of privacy is a fundamental right which we believe demands

the compelling state interest standard. This test shifts the burden of

proof to the state to justify an intrusion on privacy. The burden can be

met by demonstrating that the challenged regulation serves a

compelling state interest and accomplishes its goal through the use of

the least intrusive means.

Id. at 547; see State v. J.P., 907 So. 2d 1101, 1009 (Fla. 2004) (“When a statute or

ordinance operates to the disadvantage of a suspect class or impairs the exercise of

a fundamental right, then the law must pass strict scrutiny.”). Thus, while the

Federal Constitution, at the very least, requires the recognition and protection of an

implicit right of privacy, Florida voters have clearly opted for a broader, explicit

protection of their right of privacy. Indeed, Florida voters rejected a constitutional

amendment in 2012 that would have interpreted Florida’s explicit constitutional

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right of privacy as being no broader than the implicit federal constitutional right of

privacy.4

This Court applies strict scrutiny to any law that implicates the fundamental

right of privacy. State v. J.P., 907 So. 2d at 1109. For instance, in J.P., reviewing

the constitutionality of juvenile curfew ordinances, this Court stated: “When a

statute or ordinance operates to the disadvantage of a suspect class or impairs the

exercise of a fundamental right, then the law must pass strict scrutiny.” Id. This

Court has also applied strict scrutiny in the context of reviewing grandparent

visitation laws. See Von Eiff v. Azicri, 720 So. 2d 510, 514 (Fla. 1998) (“When

analyzing a statute that infringes on the fundamental right of privacy, the

applicable standard of review requires that the statute survive the highest level of

scrutiny.”); Beagle v. Beagle, 678 So. 2d 1271, 1275-77 (Fla. 1996) (finding that

the imposition of grandparent visitation laws by the State clearly implicated the

right of privacy and applying strict scrutiny to conclude that the law was facially

unconstitutional).

Florida courts first addressed Florida’s constitutional right of privacy in the

termination of pregnancy context in In re T.W., 551 So. 2d 1186 (Fla. 1989). In

4. See Initiative Information: Prohibition on Public Funding of Abortions;

Construction of Abortion Rights, Fla. Dep’t of State, Division of Elections,

http://dos.elections.myflorida.com/initiatives/initdetail.asp?account=10&seqnum=

82 (last visited Feb. 1, 2017).

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T.W., the Court reviewed the constitutionality of the Parental Consent Act, which

required a minor to either obtain parental consent before terminating her pregnancy

or prove to the courts that she was sufficiently mature to make the decision herself,

or if immature, that terminating her pregnancy was in her best interest. Id. at 1188-

89. This Court applied strict scrutiny and ultimately declared the law

unconstitutional, stating:

Florida’s privacy provision is clearly implicated in a woman’s

decision of whether or not to continue her pregnancy. We can

conceive of few more personal or private decisions concerning one’s

body that one can make in the course of a lifetime, except perhaps the

decision of the terminally ill in their choice of whether to discontinue

necessary medical treatment.

Id. at 1192.

Following T.W., this Court reviewed the constitutionality of a similar statute

in North Florida Women’s Health & Counseling Services, Inc. v. State, 866 So. 2d

612 (Fla. 2003). In that case, the Court reviewed the constitutionality of the

Parental Notice of Abortion Act, which required a minor to notify a parent of her

decision to terminate her pregnancy, or alternatively convince a court that she was

sufficiently mature to make the decision herself, prior to terminating her

pregnancy. Id. at 615. Explaining our holding in T.W., this Court stated in North

Florida Women’s:

The Court ultimately held [in T.W.] that (a) if a legislative act

imposes a significant restriction on a woman’s (or minor’s) right to

seek an abortion, the act must further a compelling State interest

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through the least intrusive means; (b) the Parental Consent Act

imposed a significant restriction on a minor’s right to seek an

abortion; and (c) in light of the Legislature’s less restrictive treatment

of minors in other comparable procedures and practices, the Act failed

to “further” a compelling State interest.

Id. at 621. The Court ultimately determined that the act was unconstitutional and

in so doing, reaffirmed the strict scrutiny standard applied in T.W. N. Fla.

Women’s, 866 So. 2d at 622, 639.

Importantly, also in North Florida Women’s, this Court rejected the use of

the federal “undue burden” standard announced by the United States Supreme

Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833,

874 (1992), in light of Florida’s more encompassing, explicit constitutional right of

privacy. This Court unequivocally explained that the “undue burden” standard

from Casey was “inherently ambiguous” and had no basis in Florida’s

constitutional right of privacy:

First, any comparison between the federal and Florida rights of

privacy is inapposite in light of the fact that there is no express federal

right of privacy clause. . . .

And second, it is settled in Florida that each of the personal

liberties enumerated in the Declaration of Rights is a fundamental

right. Legislation intruding on a fundamental right is presumptively

invalid and, where the right of privacy is concerned, must meet the

“strict” scrutiny standard. Florida courts have consistently applied the

“strict” scrutiny standard whenever the Right of Privacy Clause was

implicated, regardless of the nature of the activity. The “undue

burden” standard, on the other hand, is an inherently ambiguous

standard and has no basis in Florida’s Right of Privacy Clause.

- 19 -

N. Fla. Women’s, 866 So. 2d at 634-35 (second emphasis added) (footnotes

omitted).

The above cases make clear that any law that implicates Florida’s right of

privacy will be subject to strict scrutiny review. Florida’s constitutional right of

privacy encompasses a woman’s right to choose to end her pregnancy. This right

would have little substance if it did not also include the woman’s right to effectuate

her decision to end her pregnancy. As this Court demonstrated in T.W. and North

Florida Women’s, laws that place the State between a woman, or minor, and her

choice to end her pregnancy clearly implicate the right of privacy. For instance,

the law at issue in T.W. prevented a minor from terminating her pregnancy without

either parental consent or satisfying a judicial bypass procedure. 551 So. 2d at

1189. However, the law did not completely forbid minors from terminating their

pregnancies; it merely placed an additional obstacle in a minor’s way, causing the

minor additional hardship and delay in effectuating her decision. Similarly, the

law at issue in North Florida Women’s required a minor to notify her parents prior

to terminating her pregnancy, or convince a court that she need not do so. 866 So.

2d at 615. Again, this law only imposed additional requirements before a minor

could terminate her pregnancy, but did not prevent the minor from undergoing the

actual procedure for any period of time.

- 20 -

Moreover, a petitioner need not present additional evidence that the law

intrudes on her right of privacy if it is evident on the face of the law that it

implicates this right. Indeed, this Court has repeatedly applied strict scrutiny to

laws that intrude upon an individual’s fundamental right of privacy without first

requiring in-depth factual findings about the extent of the burden imposed by the

law. See, e.g., T.M. v. State, 784 So. 2d 442, 443-44 (Fla. 2001) (agreeing that

strict scrutiny applies to juvenile curfew ordinances without any discussion of the

percentage of juveniles who would be exempt from the curfew or whether those

juveniles who were subject to the curfew would in fact be harmed by six- or seven-

hour restrictions on travel); Beagle, 678 So. 2d at 1275 (“Certainly the imposition,

by the State, of grandparental visitation rights implicates the privacy rights of the

Florida Constitution.”); Winfield, 477 So. 2d at 548 (applying strict scrutiny to

administrative subpoena of financial records without any discussion of the

potential burden posed by their release because subpoenaing the records intruded

upon an individual’s legitimate expectation of privacy as a matter of law).

Whether Strict Scrutiny Review Requires that the Challenger Establish a

Significant Restriction

Although this Court has made clear that those who challenge laws

implicating the fundamental right of privacy are not first required to establish an

undue burden or significant restriction, the parties dispute whether there is a

threshold requirement applicable only to challenges to laws involving the decision

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to terminate a pregnancy that the law operate as a “significant restriction” on that

right before strict scrutiny applies. The First District held and the State maintains

that the trial court must “make sufficient factually-supported findings about the

existence of a significant restriction on a woman’s right to seek an abortion.”

Gainesville Woman Care, 187 So. 3d at 282 (emphasis added).

To support its argument, the First District and the State primarily rely on

language from a discussion in T.W. regarding when the State’s interest in maternal

health becomes compelling. In that discussion, this Court stated:

We nevertheless adopt the end of the first trimester as the time at

which the state’s interest in maternal health becomes compelling

under Florida law because it is clear that prior to this point no interest

in maternal health could be served by significantly restricting the

manner in which abortions are performed by qualified doctors,

whereas after this point the matter becomes a genuine concern.

Under Florida law, prior to the end of the first trimester, the abortion

decision must be left to the woman and may not be significantly

restricted by the state. Following this point, the state may impose

significant restrictions only in the least intrusive manner designed to

safeguard the health of the mother. Insignificant burdens during

either period must substantially further important state interests.

T.W., 551 So. 2d at 1193 (footnote omitted) (citations omitted). To the extent the

Court used the term “significant restriction,” it was borrowing from the United

States Supreme Court opinion in City of Akron v. Akron Center for Reproductive

Health, Inc., 462 U.S. 416 (1983), which provided that medical record-keeping and

neutral informed consent laws would have “no significant impact” on a woman’s

right to choose. Id. at 430-31. This Court was merely clarifying that prior to the

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end of the first trimester, the State was not permitted to restrict a woman’s right to

choose to terminate her pregnancy. Put into the appropriate context, it is clear that

T.W. in no way created a threshold requirement that a challenger must prove

through sufficient, factually supported findings that a law imposes a significant

restriction on a woman’s right of privacy before the law is reviewed under strict

scrutiny.

Likewise, the Court has not required an additional evidentiary prerequisite

before strict scrutiny applies in other cases implicating the right of privacy, or any

other context where strict scrutiny is appropriate. To single out the instance in

which a woman chooses to end her pregnancy to apply this additional evidentiary

burden would contradict our precedent emphasizing the importance of Florida’s

fundamental right of privacy.

Finally, the significant restriction requirement that the State maintains is

appropriate would equate the Florida constitutional inquiry in the termination of

pregnancy context to the federal “undue burden” test. See Casey, 505 U.S. at 877.

This cannot be. As explained above, this Court explicitly rejected the federal

standard in North Florida Women’s, which requires that a petitioner prove that a

regulation has the purpose of placing a substantial obstacle in the path of a woman

seeking to terminate her pregnancy. Casey, 505 U.S. at 877; 866 So. 2d at 634-35.

Clearly we did not endorse substantially the same standard, disguised as a

- 23 -

threshold requirement, in the same case where we specifically rejected the federal

“undue burden” standard.

To the extent there is any doubt or confusion regarding our precedent, we

clarify that there is no threshold requirement that a petitioner must show by

“sufficient factual findings” that a law imposes a significant restriction on a

woman’s right of privacy before strict scrutiny applies to laws that implicate the

right of privacy. Any law that implicates the right of privacy is presumptively

unconstitutional, and the burden falls on the State to prove both the existence of a

compelling state interest and that the law serves that compelling state interest

through the least restrictive means. Winfield, 477 So. 2d at 547.

The Effect of Presidential Women’s Center on Florida’s Constitutional Right

of Privacy

The State, before the trial court, the First District, and this Court has argued

that because this Court did not discuss the right of privacy or strict scrutiny when

upholding the Woman’s Right to Know Act in 2006, we implicitly determined that

the right of privacy was not implicated by the Woman’s Right to Know Act.

However, that contention ignores that the Court upheld the Woman’s Right to

Know Act only after the State made clear that the law required the physician to

discuss only medical risks of either terminating or continuing the pregnancy and

that the scope of the advice was patient-driven:

- 24 -

As this litigation developed, and during oral argument, the State has

agreed and conceded that this subsection applies solely and

exclusively to information with regard to medical risks—not

information with regard to social, economic, or any other risks. The

doctrine of medical informed consent is rooted in the concepts of

bodily autonomy and integrity, see Chambers[v. Nottebaum], 96 So.

2d [716,][]719 [(Fla. 3d DCA 1957)], and it is logical that physicians

be required to inform the patient only and exclusively of the medical

risks of terminating or not terminating a pregnancy. Physicians are

not sociologists, economists, theologians, or philosophers, and it is

implausible to conclude that the Legislature intended that physicians

be required to venture far beyond their professional specialty and

expertise to advise patients of nonmedical matters merely because the

word “medical” is not specifically utilized in subsection (3)(a)(1)(a).

Presidential Women’s Center, 937 So. 2d at 119-20.

As Justice Lewis, writing for the majority of the Court, explained in

Presidential Women’s Center, “[u]nder the doctrine of informed consent, a

physician has an obligation to advise his or her patient of the material risks

of undergoing a medical procedure.” 937 So. 2d at 116. The doctrine of

informed consent is a patient-driven doctrine and finds its roots in the

concepts of bodily integrity and patient autonomy:

Under a free government, at least, the free citizen’s first and greatest

right, which underlies all others—the right to the inviolability of his

person; in other words, the right to himself—is the subject of

universal acquiescence, and this right necessarily forbids a physician

or surgeon, however skillful or eminent, who has been asked to

examine, diagnose, advise, and prescribe (which are at least necessary

first steps in treatment and care), to violate, without permission, the

bodily integrity of his patient by a major or capital operation, placing

him under an anesthetic for that purpose, and operating upon him

without his consent or knowledge. 1 Kinkead on Torts, § 375, states

that general rule on this subject as follows: The patient must be the

- 25 -

final arbiter as to whether he will take his chances with the operation,

or take his chances of living without it.

Id. at 116-17 (quoting Chambers, 96 So. 2d at 719).

As Justice Pariente’s concurrence, which was joined by Justice Quince and

Justice Anstead, made clear, it was because of this Court’s interpretation of the law

as a neutral informed consent law, which the State conceded was appropriate, that

the law avoided any constitutional infirmity:

The majority has construed section 390.0111(3)(a)(1), Florida

Statutes (2005), to be a neutral informed consent statute that is

comparable to other informed consent statutes and the common law

from which they are derived. With the statute so limited, I concur in

upholding its constitutionality. I write to emphasize that it is only

because of two significant limitations placed on this provision by the

majority that the Act is not facially unconstitutional, and that it was

the State at oral argument that made these two substantial concessions

limiting the interpretation of this statute. The first is that the

“reasonable patient” is not a hypothetical patient but rather is the

patient presenting herself for the procedure. The second is that

subsection (3)(a)(1)(a) requires physicians to inform patients of only

medical risks and not other types of risks such as social or economic

risks.

If the State had advanced these substantial limiting

constructions from the outset, this case could have been resolved

expeditiously either before the trial court or the Fourth District Court

of Appeal. Without the benefit of these clear concessions from the

State, I cannot fault the Fourth District for concluding that the plain

language of the statute is unconstitutionally vague.

Id. at 121 (Pariente, J., concurring) (emphasis added).

The Woman’s Right to Know Act does not prevent a woman from

effectuating her decision to end her pregnancy, but, instead, merely requires that a

- 26 -

physician provide her with all of the information the physician and patient,

together, deem necessary to help that specific patient make an informed decision.

The important distinction here is that informed consent provisions are patient-

driven and require a physician to provide the patient with the information the

patient deems necessary to help facilitate informed decision-making. Indeed, in

Presidential Women’s Center, this Court limited the Women’s Right to Know Act

to “require a physician to consider only and exclusively the individual

circumstances of each patient presenting herself for treatment in determining what

information is material to that patient’s decision.” Id. at 119 (emphasis added).

Put simply, the woman or minor remains in control of her decision and the law

places no additional burden on that woman or minor effectuating her decision.

Therefore, we reject as unfounded any interpretation of Presidential

Women’s Center to stand for a broader proposition that the State may impose

additional burdens over the existing medically centered, patient-specific, informed

consent law before allowing a patient to undergo a procedure to terminate her

pregnancy. The Mandatory Delay Law, as opposed to the Woman’s Right to

Know Act, turns informed consent on its head, placing the State squarely between

a woman who has already made her decision to terminate her pregnancy and her

doctor who has decided that the procedure is appropriate for his or her patient.

- 27 -

This Case

Having clarified that any law implicating the right of privacy is subject to

strict scrutiny review, we now turn to whether the trial court properly applied our

precedent in granting a temporary injunction in this case. To obtain a temporary

injunction, the petitioner must satisfy a “four-part test under Florida law: a

substantial likelihood of success on the merits; lack of an adequate remedy at law;

irreparable harm absent the entry of an injunction; and that injunctive relief will

serve the public interest.” Reform Party of Fla. v. Black, 885 So. 2d 303, 305 (Fla.

2004). “The standard of review of trial court orders on requests for temporary

injunctions is a hybrid. To the extent the trial court’s order is based on factual

findings, we will not reverse unless the trial court abused its discretion; however,

any legal conclusions are subject to de novo review.” Fla. High Sch. Athletic

Ass’n v. Rosenberg, 117 So. 3d 825, 826 (Fla. 4th DCA 2013) (quoting

Foreclosure FreeSearch, Inc. v. Sullivan, 12 So. 3d 771, 774 (Fla. 4th DCA 2009)).

Additionally, Florida Rule of Civil Procedure 1.610(c) states: “Every

injunction shall specify the reasons for entry, shall describe in reasonable detail the

act or acts restrained without reference to a pleading or another document, and

shall be binding on the parties to the action, their officers, agents, servants,

employees, and attorneys and on those persons in active concert or participation

- 28 -

with them who receive actual notice of the injunction.” We discuss each of the

prongs of the test in turn below.

Substantial Likelihood of Success on the Merits

In light of the discussion above, we conclude that the First District erred in

several respects. First, the First District erred in admonishing the trial court for its

failure to “make sufficient factually-supported findings about the existence of a

significant restriction on a woman’s right to seek an abortion.” Gainesville

Woman Care, 187 So. 3d at 282. Placing this initial burden on petitioners would

undermine longstanding precedent on fundamental rights and strict scrutiny

review. In fact, the Mandatory Delay Law, by its plain terms, requires that a

woman be informed “at least 24 hours before the procedure” of certain

information, thus prohibiting a woman from effectuating her decision to terminate

her pregnancy until at least twenty-four hours after she is provided the information

required by law, clearly impeding the exercise of her constitutional rights.

Further, notwithstanding the First District’s assertions that the trial court

made no findings with respect to the Mandatory Delay Law’s effect on a woman’s

right of privacy, the trial court order states:

Plaintiffs allege in the motion for temporary injunctive relief

that:

Absent injunctive relief from this Court, a sweeping

restriction on Florida women’s ability to access abortion

services, unprecedented in this state, will take effect on

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July 1, 2015. Section one of Florida House Bill 633,

signed by Governor Scott last night (June 10, 2015)

would require a woman seeking an abortion to make an

additional, unnecessary trip to her health care provider at

least twenty-four hours before obtaining an abortion, in

order to receive the same information she may currently

receive on the day of the procedure. (citation omitted)

The Act’s unnecessary and burdensome requirements are

imposed regardless of the distance the woman must

travel to reach her provider, her own medical needs, her

judgment, her doctor’s judgment, or her individual life

circumstances. By subjecting no other medical

procedure in Florida, much less a medical procedure

protected by the state Constitution as a fundamental

right—the Act can only serve to deter women from

seeking abortions, and to punish and discriminate against

. . . those who do.

Based upon the above information alleged by GWC and one additional

affidavit submitted from Dr. Christine L. Curry, detailing the harm that the

Mandatory Delay Law will cause to her patients, and in light of the absence of

evidence presented to the contrary by the State, the trial court concluded: “The

Court has no evidence in front of it in which to make any factual determination that

a 24-hour waiting period with the accompanying second trip necessitated by the

same is not an additional burden on a woman’s right of privacy under the Florida’s

Right of Privacy Clause,” and thus impedes all Florida women from exercising

their fundamental right of privacy. (Emphasis added.)

Having concluded that the trial court was correct that the law implicated the

right of privacy, we turn to review whether the trial court erred in finding that the

- 30 -

Mandatory Delay Law would be unlikely to survive strict scrutiny review. The

First District faulted the trial court, stating: