24-hour waiting periods: an “undue burden” or a minor inconvenience?

Civil rights groups across Florida have filed a lawsuit seeking an emergency injunction in response to a new law that will impose a 24-hour waiting period on women seeking abortions after they receive “informed consent.”

Photo provided by the National Right to Life News.

Florida Governor Rick Scott signed into law Florida House Bill 633 on June 10th, titled “Informed Patient Consent,” which will require women to wait 24 hours before having an abortion after meeting with their doctors to receive an “informed consent” consultation.  The new law will add to the already-existing requirement in Florida that doctors acquire “informed consent” from women seeking abortions.  Informed consent requires that doctors inform women of the risks of her decision and the probable gestational age of the fetus verified by ultrasound.  The woman, however, is allowed to refuse to view the ultrasound.

Although the law does have exceptions for victims of rape, incest, domestic abuse, or human trafficking if the woman is able to present a police report, Democratic lawmakers argue that the 24-hour waiting period is simply an attempt to chip away at women’s fundamental right to have an abortion.

What is an “undue burden” on a woman’s right to choose?

A woman’s constitutional right to obtain an abortion was first recognized by the Supreme Court in Roe v. Wade in 1973, which held that there was an implied right to privacy protected by the Constitution which encompasses a woman’s right to make her own reproductive choices.  In the 1992 decision, Planned Parenthood v. Casey, the Supreme Court reaffirmed Roe v. Wade and held that the right to privacy is a liberty interest protected by the Fourteenth Amendment’s Due Process Clause.

The Supreme Court in Casey  also notably articulated the “undue burden” test, which states that a restriction on abortion rights violates a woman’s constitutional right to abortion if a law has the purpose or effect of imposing an undue burden on the woman seeking the abortion.  The Court defined “undue burden” as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”  The law challenged in Casey  included requirements that married women notify their husbands before obtaining an abortion, a 24-hour waiting period be in place before the abortion is given, informed consent is given to the woman, and parental consent is given for girls under a certain age.  The only requirement that the Court struck down as an “undue burden” was the spousal notice requirement.

Democrats contend that 24-hours is an “undue burden”

Despite the Supreme Court’s refusal to hold the 24-hour waiting period requirement in Planned Parenthood v. Casey unconstitutional, Democratic lawmakers in Florida maintain that this requirement will unduly burden women seeking to obtain an abortion in Florida.

“Let me tell you, no woman wakes up and says, ‘Oh, I’ll have an abortion today.’ They’ve thought about it,” Florida’s Senate Minority Leader Arthenia Joyner, a Democrat from Tampa said in an article with The Huffington Post. “Only a woman carries a child and only a woman should have the right to decide if that’s what she wants to do, without the additional hurdle of having to wait 24 hours to make the decision of an abortion.”

The new law will particularly burden women who live far away from abortion clinics that struggle to make it to the doctor’s visit once, let alone a second time after the 24-hour waiting period.

“Women who choose to have an abortion have weighed all the options and have come to a decision,” Joyner said to the The Miami Herald.  “It works to the disadvantage of a lot of women who have to come from out of town to get to the provider who’s going to perform the procedure.”

Barbara Zdravecky, president of Planned Parenthood of Southwest and Central Florida, also expressed concern that the new law will create obstacles for women in Florida seeking an abortion.

“This is an undue burden, particular on poor women, women of low incomes who are dependent on their jobs and on child care to have to make an appointment in the first place,” Zdravecky said in an article with The Miami Herald.

Democratic lawmakers also stressed that this law will make abortion the only medical procedure with a mandated waiting period.

Republicans counter that 24-hours allows for an informed decision

Florida Republican lawmakers attempted to minimize the impact that the new law will have on women seeking to exercise their fundamental right to an abortion.

“This does not limit a woman’s right to make the choice, if that’s what she wants to do, to have the abortion,” Republican Senator Kelli Stargel said in an article with The Huffington Post. “What this does is to give women an opportunity to think about it, so she doesn’t potentially live through years of regret.”

Representative Jennifer Sullivan, a Republican from Mount Dora, Florida, and a sponsor of the bill in the House of Representatives, also attempted to argue that the new law is aimed at helping women make an informed decision.  According to Sullivan, the law will not impact women’s access to abortion because it is not shutting down clinics.  Although she admitted that women will be forced to make multiple trips to abortion clinics under the new law, Sullivan said to The Miami Herald that she does not believe that this constitutes an “undue burden” on women’s access to abortions.

Senator Anitere Flores, a Republican from Miami, Florida, said that forcing women to wait an additional 24 hours is a minor inconvenience in comparison to the potential of a woman making a decision she later regrets.

“One day to reflect upon the risks of abortion, one day to view an image of the unborn child’s ultrasound image, and one day to consult with friends, family and faith are minimal considering the effects that will remain for a lifetime beyond that irreversible decision,” Flores said in an article with The New York Post.

Republican lawmakers also argue that a 24-hour waiting period is necessary because many abortion clinics attempt to rush women into an abortion immediately after they are briefed on the potential side effects for profit motivated reasons.

Lawsuit filed challenging the new law

Not surprisingly, there has already been heavy backlash against the new law.  On June 11, just one day after Gov. Rick Scott signed the bill into law, the Center for Reproductive Rights, the American Civil Liberties Union (ACLU) and the ACLU of Florida joined in filing a lawsuit challenging the law.  The lawsuit was filed on behalf of the Bread and Roses Women’s Health Center in Florida and the Medical Students for Choice in the Circuit Court of Leon County and seeks an emergency injunction to block the implementation of the law.  The suit alleges:

By subjecting all women seeking abortion care to both a mandatory twenty-four hour and an additional-trip requirement – a burden placed on patients seeking 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 abortion, and to punish and discriminate against those who do . . . Because Plaintiffs are likely to succeed on the merits of their claims and they, along with their patients and all Florida women seeking abortions, will suffer irreparable harm if the Act is not enjoined, and because an injunction will serve the public interest, this Court should issue immediate temporary injunctive relief against enforcement of the Act.

The plaintiffs also allege that the additional trip that will be required due to the 24-hour waiting period will pose a threat to women’s confidentiality and privacy by increasing the risk that partners and employers will discover that she is having an abortion.

Florida is not alone

Unfortunately for those concerned with women having the right to be in control of their own reproductive health, in recent months courts and lawmakers across the nation have shown support for laws aimed at impairing women’s right to choose.  The Wisconsin State Senate recently passed the Pain-Capable Unborn Child Protection Act, which limits the ability of women to seek abortions more than 20 weeks into their pregnancy.  On June 9, The US Court of Appeals for the Fifth Circuit upheld some of the strictest regulations in a Texas abortion law, which would leave only seven of the state’s abortion clinics open.  On June 3, the North Carolina legislature gave final approval to the Women and Children’s Protection Act of 2015, which requires a 72-hour waiting period for abortions after a physician, informs a woman of the risks of the procedure and her options.

When the new law takes effect on July 1, 2015, Florida will become the 27th state to have a waiting period for abortions.  However, it appears that the retrogressive trend toward hindering women’s reproductive choices may only just be beginning.

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About Rachel Goodling, Senior Staff Writer (17 Articles)
Rachel Goodling is a 2016 graduate and served as a Senior Staff Writer for the Campbell Law Observer. She is originally from Cary, North Carolina and graduated from Appalachian State University in 2012 with a Bachelor of Science in Journalism and a Political Science minor. Following her first year of law school, Rachel worked at the NC Department of Justice, Medicaid Investigations Division as the criminal intern. Following her second year of law school, Rachel interned at North Carolina Prisoner Legal Services handling post-conviction appeals as well as civil claims made by inmates across North Carolina. Rachel was also on Campbell's National moot court team.
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