Gainesville Woman Care, LLC v. State of Florida

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.

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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

- 21 -
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

- 22 -
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

- 29 -
 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:

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.

Gainesville Woman Care, 187 So. 3d at 282. GWC argues that this statement by

the First District was in error for two reasons: (1) the trial court did, in fact, make

findings regarding the State’s lack of evidence presented regarding any compelling

state interest; and (2) this lengthy statement by the First District defies this Court’s

precedent on what constitutes a compelling state interest. The State, of course,

contends that the First District’s opinion is correct.

Because the Mandatory Delay Law, which impedes Florida women’s

exercise of their fundamental rights, implicates the right of privacy, the trial court

was correct to conclude that strict scrutiny applies to this challenge. The case law

is clear: “A legislative act impinging on [the right of privacy] is presumptively

unconstitutional unless proved valid by the State.” N. Fla. Women’s, 866 So. 2d at

626. Thus, after the trial court made the threshold inquiry that the Mandatory

- 31 -
Delay Law implicated a woman’s fundamental right of privacy, the burden in this

case shifted to the State to prove that the law furthered a compelling state interest

in the least restrictive way.

Contrary to the claims of the First District, the trial court made two findings

critical to the strict scrutiny analysis in this case: (1) the State failed to provide any

evidence that there is a compelling state interest to be protected by enhancing the

informed consent provision; and (2) Florida law does not require a parallel

restriction on medical procedures of comparable risk.

In its order, the trial court found, based upon the verified declaration of Dr.

Christine Curry, that Florida law does not require enhanced informed consent for

any other gynecological procedure. Specifically, the trial court found that the State

failed to provide any compelling reason to enhance the informed consent provision

or how the current informed consent provision was failing in some way. These

findings make it clear that the trial court concluded the selective approach

employed by the Legislature was evidence of the State’s limited interest in this

matter.

Similarly, in T.W., this Court reasoned that the State’s selective approach in

only requiring parental consent for termination of pregnancy procedures was

evidence that the State lacked any compelling interest in enacting the law. 551 So.

2d at 1195. “Although the state does have an interest in protecting minors, ‘the

- 32 -
selective approach employed by the legislature evidences the limited nature of

the . . . interest being furthered by these provisions.’ ” Id. (quoting Ivey v. Bacardi

Imports Co., 541 So. 2d 1129, 1139 (Fla. 1989)). Moreover, this Court in North

Florida Women’s stated: “The fact that the Legislature has not chosen to require

parental notification relating to other pregnancy-related conditions that are more

dangerous than abortion” indicates that the purpose of the parental notification law

is not to further a compelling interest in protecting minors’ health but is “instead,

. . . to infringe on the minor’s right to choose an abortion.” 866 So. 2d at 650-51.

As stated above, the trial court properly placed the burden on the State in

this case to prove that the Mandatory Delay Law furthered a compelling state

interest through the least restrictive means. The trial court stated numerous times

that the State failed to provide any evidence of a compelling state interest that

would be furthered by enhancing the informed consent statute. The First District’s

statement that the trial court failed “to make any findings regarding the State’s

compelling interests in support of this statute” is clearly in error. Gainesville

Woman Care, 187 So. 3d at 282. The trial court found that the State failed to offer

evidence of a compelling state interest in treating a woman who has chosen to

terminate her pregnancy, unlike any other patient, as unable to determine for

herself when she is ready to make an informed decision about her medical care;

and this differential treatment undermines any purported state interest in ensuring

- 33 -
that women are adequately informed. It would make no sense to require a trial

court to make factual findings regarding a state’s compelling interest, as the First

District would require, when the State presented no evidence from which a trial

court could make such findings.

The Mandatory Delay Law impacts only those women who have already

made the choice to end their pregnancies. Indeed, under Florida’s pre-existing

informed consent law, a woman can already take all of the time she needs to decide

whether to terminate her pregnancy, both before she arrives at the clinic and after

she receives the required counseling information. The State presented no evidence

to indicate that the prior, neutral informed consent statute that this Court approved

in Presidential Women’s Center is inadequate and requires the revisions enacted by

the Legislature. Nor are there any legislative findings explaining the compelling

state interests at stake or indicating why the Legislature was compelled to amend

the statute in order to support those interests.

Moreover, despite the State’s contention that women will not be required to

make two trips to the clinic by the new law because they can receive the

information from their referring physician, the law, in fact, requires women to

make a second trip to their health care provider at least twenty-four hours after

their first visit. See § 390.0111, Fla. Stat. Even if the woman receives the required

information from her referring doctor, as the State contends, she must still make

- 34 -
two trips: one to the referring physician and one to the abortion clinic at least

twenty-four hours later. The challengers presented evidence that requiring a

woman to make a second trip increases the likelihood that her choice to terminate

her pregnancy will not remain confidential, which is particularly important, as

amici assert, in the domestic violence and human trafficking context. Further, the

delay is, at a minimum, twenty-four hours, but it may be considerably more if the

doctor is not available or the date falls on a weekend. No other medical procedure,

even those with greater health consequences, requires a twenty-four hour waiting

period in the informed consent process.

Next, we also conclude that the First District erred when it admonished the

trial court for failing to make findings regarding the State’s compelling interests.

The First District stated:

The court failed to make any findings regarding the State’s
compelling interests in support of this statute, which the State has
argued include compelling interests in providing 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.

Gainesville Woman Care, 187 So. 3d at 282. This Court has never recognized that

the State might have a compelling interest in “protecting the organic law of Florida

- 35 -
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.” Id. Accordingly, the First District’s holding that the trial court erred in

failing to issue findings on such an interest would render the highest level of

judicial review toothless in almost all cases because the State could be deemed to

have a compelling interest in upholding any law, no matter how patently

unconstitutional it may be.

The First District compounded this error by requiring that the trial court first

consider what it referred to as the State’s compelling interests in “providing

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” and in “protecting the viability of a duly-enacted state law.” The

Mandatory Delay Law does not differentiate between stages of pregnancy in its

application. Instead, it broadly operates any time that a woman is intending to

terminate a pregnancy after conception. As to the “unique potentiality of human

life,” and the concern regarding the integrity of the medical profession, this law is

part of the medical informed consent law that this Court has already held was a

statute designed to inform the patient of only the medical risks of continuing or not

continuing the pregnancy. This Court made clear in Presidential Women’s Center

- 36 -
that “[t]he doctrine of medical informed consent is rooted in the concepts of bodily

autonomy and integrity . . . 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.” 937 So. 2d at 119 (emphasis added). Such social and

moral concerns have no place in the concept of informed consent.

Finally, in light of the discussion above, it was also error for the First

District to insinuate that the voters in any way overruled our decision in North

Florida Women’s when they added article X, section 22, to the Florida

Constitution in 2004. Gainesville Woman Care, 187 So. 3d at 282 (faulting trial

court for not addressing “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”). Article X, section 22, of the Florida

Constitution is an extremely limited provision of the constitution, which deals

solely with the issue of parental notification in the context of a minor choosing to

terminate her pregnancy. It was not added to the Declaration of Rights, nor did it

amend the right of privacy in article I, section 23, of the Florida Constitution. See

art. X, § 22, Fla. Const. In article X, section 22, the voters in no way altered this

Court’s core holding in North Florida Women’s—laws that implicate the right of

- 37 -
privacy are subject to strict scrutiny—and it was error for the First District to

improperly insinuate such a notion.

We conclude that the trial court’s order correctly found, based on the

evidence presented at the temporary injunction hearing, that there is a substantial

likelihood that the Mandatory Delay Law is unconstitutional as a violation of

Florida’s fundamental right of privacy and consequently that Petitioners

established a substantial likelihood of success on the merits in this case. Because

the State conceded the lack of an adequate remedy at law,5 we now turn to the last

two prongs of the test for injunctive relief.

Irreparable Harm Absent the Entry of an Injunction and That Injunctive Relief Will
Serve the Public Interest

The First District noted in its decision that the trial court’s injunction was in

error because:

The trial court failed to set forth clear, definite, and
unequivocally sufficient factual findings supporting the three disputed
elements of an injunction (after the State essentially conceded
inadequacy of any legal remedy). Indeed, the trial court here could
not set forth the requisite evidence-supported factual findings because
it had no legally sufficient evidentiary basis to do so. Without such
clear and sufficient factual findings, supported by record evidence, the
order is defective and meaningful review is not possible.

5. See Gainesville Woman Care, LLC v. State, No. 15-CA-1323, at 3 (Fla.
2d Cir. Ct. July 1, 2015) (Corrected Order Granting Plaintiff’s Motion for
Temporary Injunction) (“Defendants concede the unavailability of an adequate
remedy at law if the law goes into effect and is [subsequently] found to be
unconstitutional.”); see also Gainesville Woman Care, 187 So. 3d at 281.

- 38 -
Gainesville Woman Care, 187 So. 3d at 281. GWC argues that the trial court

correctly found that the elements of irreparable harm and public interest were

established, after the State conceded the lack of an adequate remedy, because the

trial court’s determination that the law is likely unconstitutional provides the

necessary support for the other prongs.

In its order, the trial court stated:

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 of 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 insignificant burden, on a
woman’s right to an abortion.

Thus, the trial court determined that a decision that the Mandatory Delay Law is

unconstitutional would presume that there would be irreparable harm absent the

entry of an injunction and that the public interest would be served by enjoining

enforcement of the Mandatory Delay Law.

This Court has not previously addressed this question. However, the United

States Supreme Court has stated that the “loss of First Amendment freedoms, for

even minimal periods of time, unquestionably constitutes irreparable injury.”

- 39 -
Elrod v. Burns, 427 U.S. 347, 373 (1976). Additionally, both the federal courts

and Florida district courts of appeal have presumed irreparable harm when certain

fundamental rights are violated. See, e.g., Baker v. Buckeye Cellulose Corp., 856

F.2d 167, 169 (11th Cir. 1988) (irreparable harm presumed in Title VII cases);

Cunningham v. Adams, 808 F.2d 815, 822 (11th Cir. 1987) (stating that the injury

suffered by the plaintiff is irreparable only if cannot be undone through monetary

remedies); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983) (irreparable

injury presumed from violation of First Amendment rights “for even minimal

periods of time”); see also Tucker v. Resha, 634 So. 2d 756, 759 (Fla. 1st DCA

1994) (finding no legislative waiver of sovereign immunity as to the privacy

provision of the Florida Constitution and therefore concluding that money damages

are not available for violations of that right); Thompson v. Planning Comm’n of

Jacksonville, 464 So. 2d 1231, 1237 (Fla. 1st DCA 1985) (where calculation of

damages is speculative, legal remedy is inadequate).

In light of finding that the Mandatory Delay Law is likely unconstitutional,

there is no adequate legal remedy at law for the improper enforcement of the

Mandatory Delay Law. Thus, the Mandatory Delay Law’s enactment would lead

to irreparable harm, and it would be specious to require, as the First District

suggests, that the trial court make additional factual findings that enjoining the law

would also be in the public interest. Notwithstanding, the trial court found that

- 40 -
women seeking to terminate their pregnancies in Florida would be harmed by the

enforcement of the Mandatory Delay Law, noting that GWC’s pleadings and the

declaration presented make clear that the law would require women seeking to

terminate their pregnancies to make an additional, unnecessary trip to their health

care provider and could impose additional harms by requiring a woman to delay

the procedure or force her past the time limit for the procedure of her choice. The

State presented no evidence in rebuttal. Clearly, enjoining the Mandatory Delay

Law and thus preventing women from enduring the additional and unnecessary

burdens it would impose upon them in violation of the Florida Constitution, would

serve the public interest.

Injunctive Relief Based on Facial Constitutional Challenge

Finally, we turn to the issue of whether the trial court was correct to provide

injunctive relief based on the likelihood that the Mandatory Delay Law is facially

unconstitutional. The First District held:

The order is also deficient in failing to address the legal
requirements for a facial constitutional challenge to a statute, an issue
the parties disputed below. The State advocated a “no-set-of-
circumstances” test.
Appellees argued that the “no circumstances” test does not
apply in Florida abortion cases. Neither the record nor the order
reflects whether the trial court applied the appropriate facial challenge
analysis, and this omission thwarts meaningful appellate review of the
injunction order.

- 41 -
Gainesville Woman Care, 187 So. 3d at 282. GWC asserts that the trial court’s

remedy of enjoining the Mandatory Delay Law as applied to all women was

appropriate. The State contends that the First District was correct because GWC

bases its allegations of harm on assumptions about unidentified women in

hypothetical scenarios; but, in a facial challenge, this Court considers only the text

of the statute, not its specific application to a particular set of circumstances.

Gonzales v. Carhart, 550 U.S. 124, 167-68 (2007).

The State concedes that the United States Supreme Court has yet to rule on

whether the “no-set-of-circumstances” test applies to facial challenges to

restrictions on a woman’s right to choose to terminate her pregnancy. However,

the State notes that the United States Supreme Court has stated that, at the least, a

facial challenge fails when plaintiffs “have not demonstrated that the Act would be

unconstitutional in a large fraction of relevant cases.” Id. Moreover, this Court

has never applied the “no-set-of-circumstances” test to a facial constitutional

challenge in the termination of pregnancy context.

The trial court’s finding that the Mandatory Delay Law imposes a significant

restriction on all women’s fundamental right of privacy, by its plain terms, is

sufficient to support an injunction barring the application of the law in its entirety.

The trial court did not talk in terms of hypotheticals, nor did it look to the effect of

the law on just some women. Rather, the trial court found that the law imposed

- 42 -
unconstitutional and unnecessary burdens on the fundamental right of privacy of

all Florida women. Accordingly, the trial court did not err in not explicitly

deciding the disputed issue of what standard is appropriate. Further, in examining

previous restrictions on a woman’s right to choose to terminate her pregnancy in

T.W., North Florida Women’s, and Presidential Women’s Center, this Court both

upheld and invalidated laws without any mention of a “no-set-of-circumstances”

test. See Presidential Women’s Ctr., 937 So. 2d at 115; N. Fla. Women’s, 866 So.

2d at 626; T.W., 551 So. 2d at 1192-93.

CONCLUSION

The trial court’s findings with respect to all four of the prongs of the

temporary injunction test were supported by competent, substantial evidence.

Consequently, the trial court had the proper evidentiary basis to issue a temporary

injunction in this case. Today we make clear, in Florida, any law that implicates

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

scrutiny and is presumptively unconstitutional. In this case, the State failed to

present any evidence that the Mandatory Delay Law serves any compelling state

interest, much less through the least restrictive means, and, therefore, the trial court

correctly concluded that there is a substantial likelihood that the Mandatory Delay

Law is unconstitutional. Accordingly, we quash the decision of the First District

- 43 -
below and remand this case back to the First District for instructions not

inconsistent with this opinion.

It is so ordered.

LABARGA, C.J., and LEWIS, and QUINCE, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.
LAWSON, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

CANADY, J., dissenting.

Because I conclude that there is no basis for this Court to exercise

jurisdiction, I would discharge this case. Contrary to the view adopted by the

majority, the decision of the First District in State v. Gainesville Woman Care,

LLC, 187 So. 3d 279 (Fla. 1st DCA 2016), does not expressly and directly conflict

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

2d 612 (Fla. 2003), or In re T.W., 551 So. 2d 1186 (Fla. 1989). In view of the

majority’s decision on jurisdiction, I write to explain why the First District’s

decision should be affirmed on procedural grounds. I also write to explain why the

majority’s resolution of the substantive constitutional issue misapprehends our

precedent.

I.

Nothing in North Florida Women’s or T.W. supports the majority’s

jurisdictional claim. The majority asserts that the First District misapplied North

- 44 -
Florida Women’s and T.W. “regarding strict scrutiny review of statutes that

infringe on the right of privacy.” Majority op. at 2 n.1. But the First District did

not make any conclusions regarding the standard of judicial review applicable to

statutes that infringe on the right of privacy. Instead, the First District addressed

the conditions that must be met by a party seeking preliminary injunctive relief as

well as the requirements applicable to orders granting such relief and ruled that the

trial court’s injunction order was both factually and legally deficient. The First

District did so without determining the standard of judicial review or reaching the

merits on the underlying constitutional challenge.

Ignoring what the First District’s opinion actually says, the majority claims

that the First District “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.” Majority op. at 2. The majority thus moves seamlessly

from a misconstruction of the First District’s opinion to a misconstruction of our

precedents.

This Court only applies strict scrutiny review to a statute regulating the right

to abortion if the statute imposes a “significant restriction” on the right to abortion.

In T.W. we “held 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

- 45 -
State interest through the least intrusive means.” North Florida Women’s, 866 So.

2d at 621 (emphasis added). Subsequently, in North Florida Women’s we

“focus[ed] on two key questions addressed by the [trial] court. (1) Does the

Parental Notice Act impose a significant restriction on a minor’s right of privacy?

And if so, (2) does the Act further a compelling State interest through the least

intrusive means?” Id. at 631 (emphasis added). Indeed, even the majority appears

to acknowledge that the Court in T.W. required that there be a significant

restriction imposed on the right to abortion before applying strict scrutiny. See

Majority op. at 18-19. In contrast, if the statute imposes an “insignificant burden”

on the right to abortion, this Court applies—at most—intermediate scrutiny. See

T.W., 551 So. 2d at 1193 (explaining that “[i]nsignificant burdens” on the right to

abortion “must substantially further important state interests”). Therefore, the First

District’s statement that “[t]he trial court’s failure to make sufficient factually-

supported findings about whether the law imposes a significant restriction . . .

renders the trial court’s sparse legal analysis and conclusions unsupportable and

the injunction deficient, and hampers meaningful appellate review,” Gainesville

Woman Care, 187 So. 3d at 282, is not inconsistent with and does not misapply

North Florida Women’s or T.W.

The majority claims that the First District “misinterpreted and misconstrued

our precedent concerning the right of privacy by requiring, on remand, that the trial

- 46 -
court consider a list of speculative state interests, none of which this Court has ever

recognized as compelling.” Majority op. at 3-4. But the First District simply

stated that “[t]he trial court’s failure to make sufficient factually-supported

findings . . . about the State’s [asserted] compelling interests[] renders the trial

court’s sparse legal analysis and conclusions unsupportable and the injunction

deficient, and hampers meaningful appellate review.” Gainesville Woman Care,

187 So. 3d at 282. The majority fails to explain how the First District

“misinterpreted and misconstrued our precedent,” majority op. at 3, by requiring

the trial court to address on remand the interests alleged by the State. The majority

also fails to cite any precedent establishing that these interests are purely

“speculative” and can never be “compelling.” Majority op. at 4.

II.

The First District correctly decided this case on procedural grounds because

the trial court’s temporary injunction order is factually deficient. The majority

acknowledges that “competent, substantial evidence” must support each of the four

conclusions necessary to justify entry of a temporary injunction. Majority op. at

43; see North Florida Women’s, 866 So. 2d at 615 (“Because the trial court

properly applied the controlling law as set forth in T.W. and because its findings

are supported by competent substantial evidence, we sustain its ruling.”).

According to the majority, “the challengers did present evidence . . . that the

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Mandatory Delay Law would [impede a woman’s ability to terminate her

pregnancy for at least an additional twenty-four hours,] result in additional costs

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

procedure being performed.” Majority op. at 3. But the trial court’s temporary

injunction order is not supported by any evidence, much less competent and

substantial evidence. As the trial court explained in its order: “No witnesses were

presented at the scheduled [evidentiary] hearing, and no affidavits or verified

statements or declarations were offered into evidence. There was no legislative

history or other evidence presented to this [c]ourt.” Gainesville Woman Care,

LLC v. State, No. 15-CA-1323, at 11 (Fla. 2d Cir. Ct. July 1, 2015) (Corrected

Order Granting Plaintiffs’ Motion for Temporary Injunction).6 Notably, Dr.

Curry’s declaration—the “only evidence” before the trial court—was never offered

into evidence. Id. at 10. The majority thus errs in concluding that

the trial court’s order correctly found, based on the evidence presented
at the temporary injunction hearing, that there is a substantial
likelihood that the Mandatory Delay Law is unconstitutional as a

6. The trial court’s order states that “[t]he parties agreed that the [c]ourt was
to consider the pleadings, together with the declarations filed with Plaintiffs’
motion and supplemental reply, and that the parties were authorized but not
required to present any witnesses or other evidence at [the evidentiary hearing].”
Gainesville Woman Care, LLC v. State, No. 15-CA-1323, at 1 (Fla. 2d Cir. Ct.
July 1, 2015) (Corrected Order Granting Plaintiffs’ Motion for Temporary
Injunction). Nonetheless, it is not clear from the record on appeal that the State
agreed that the trial court was to consider Plaintiffs’ pleadings and declarations as
evidence, or that such documents meet the evidentiary requirements of Florida law.

- 48 -
 violation of Florida’s fundamental right of privacy and consequently
that Petitioners established a substantial likelihood of success on the
merits in this case.

Majority op. at 38 (emphasis added). The majority further errs in concluding that

“[t]he trial court’s findings with respect to all four of the prongs of the temporary

injunction test were supported by competent, substantial evidence” and “the trial

court had the proper evidentiary basis to issue a temporary injunction in this case.”

Majority op. at 43.

The First District also correctly decided this case on procedural grounds

because the trial court’s temporary injunction order is legally deficient. In order to

obtain a temporary injunction, the party seeking the injunction “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.’ ” Liberty Counsel v.

Florida Bar Bd. of Governors, 12 So. 3d 183, 186 n.7 (Fla. 2009) (quoting Reform

Party of Fla. v. Black, 885 So. 2d 303, 305 (Fla. 2004)). “Clear, definite, and

unequivocally sufficient factual findings must support each of the four conclusions

necessary to justify entry of a preliminary injunction.” City of Jacksonville v.

Naegele Outdoor Advert. Co., 634 So. 2d 750, 754 (Fla. 1st DCA 1994) (Naegele

I), approved, 659 So. 2d 1046 (Fla. 1995) (Naegele II). If a temporary injunction

is “to be subject to meaningful review, an order granting a temporary injunction

- 49 -
must contain more than conclusory legal aphorisms” and “do more than parrot

each tine of the four-prong test.” Naegele II, 659 So. 2d at 1048 (quoting Naegele

I, 634 So. 2d at 753-54); see Fla. R. Civ. P. 1.610(c) (“Every injunction shall

specify the reasons for entry . . . .”).

The trial court’s order is legally deficient because it does not contain any

factual findings—much less sufficient factual findings—regarding the irreparable

harm or public interest prongs of the preliminary injunction test.7 The order

merely contains the following conclusory statement: “Plaintiffs have shown . . .

that irreparable harm will result if the [Mandatory Delay Law] is not enjoined . . .

and that the relief requested will serve the public interest.” Gainesville Woman

Care, LLC v. State, No. 15-CA-1323, at 11 (Fla. 2d Cir. Ct. July 1, 2015)

(Corrected Order Granting Plaintiffs’ Motion for Temporary Injunction). With

respect to the substantial likelihood of success on the merits prong, the order is

legally deficient because it fails to make sufficient factually supported findings

about whether the Mandatory Delay Law imposes a significant restriction on the

right to abortion, and about the State’s asserted compelling interests. The order is

also legally deficient because it improperly conflates three of the four prongs of the

preliminary injunction test and, in doing so, renders meaningless the irreparable

7. The State conceded the lack of an adequate remedy prong below.

- 50 -
harm and public interest prongs. See id. at 3-4 (concluding that a finding of a

substantial likelihood of success on the merits provides the necessary support for

the irreparable harm and public interest prongs). Further, the order is legally

deficient because it fails to address the legal requirements for a facial constitutional

challenge to a statute.

The majority concedes that the trial court’s order does not contain any

factual findings regarding the public interest prong. See majority op. at 40.

Nevertheless, the majority concludes that “[i]n light of finding that the Mandatory

Delay Law is likely unconstitutional . . . it would be specious to require, as the

First District suggests, that the trial court make additional factual findings that

enjoining the law would also be in the public interest.” Id. The majority’s

reasoning fundamentally misapprehends the four-prong test for a preliminary

injunction. Factual findings must support each of the four conclusions necessary to

justify entry of a preliminary injunction. Naegele I, 634 So. 2d at 754; see Naegele

II, 659 So. 2d at 1048. The majority thus renders meaningless the public interest

prong by turning the four-prong test for a preliminary injunction into a three-prong

test.

III.

I disagree with the majority’s resolution of the substantive constitutional

issue. The majority claims that “there is no threshold requirement that a petitioner

- 51 -
must show by ‘sufficient factual findings’ that a law imposes a significant

restriction on a woman’s right” to abortion before strict scrutiny applies because

statutes regulating the right to abortion implicate the right of privacy. Majority op.

at 24. But the majority’s claim cannot be reconciled with this Court’s precedent

imposing such a threshold requirement. In North Florida Women’s and T.W., this

Court only applied strict scrutiny to statutes regulating the right to abortion after

determining that each statute imposed a “significant restriction” on the right to

abortion. See North Florida Women’s, 866 So. 2d at 631-32; T.W., 551 So. 2d at

1194-95. The majority simply cannot explain why this Court found it necessary to

conclude—before applying strict scrutiny review—that the statutes at issue in both

of those cases imposed a “significant restriction” on the right to abortion if the only

relevant inquiry is whether a statute regulating the right to abortion furthers a

compelling state interest through the least restrictive means. This Court has no

evidence before it that a twenty-four hour waiting period is a significant restriction

on the right to abortion. All we have are the pleadings—which do not constitute

evidence—and Dr. Curry’s speculations that a duly-enacted law additionally

burdens the right to abortion. The majority’s unjustifiable departure from North

Florida Women’s and T.W. does not satisfy any level of scrutiny.

The majority claims that “[p]ut into the appropriate context, it is clear that

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

- 52 -
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.” Majority op. at 23. The majority’s claim cannot be reconciled with

T.W., which explicitly distinguishes between statutes that impose “significant

restrictions” on the right to abortion and statutes that impose “insignificant

burdens” on the right to abortion:

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 [the first trimester], the state may
impose significant restrictions only in the least intrusive manner
designed to safeguard the health of the mother. Insignificant burdens
during [the first or second trimester] must substantially further
important state interests.

T.W., 551 So. 2d at 1193 (emphasis added) (footnote omitted). T.W. thus makes

clear beyond any doubt that statutes imposing “significant restrictions” on the right

to abortion are subject to strict scrutiny while statutes imposing “insignificant

burdens” on the right to abortion are not.

The majority claims that “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.” Majority op.

at 23. But this assertion flies in the face of what the Court said in T.W. before the

federal undue burden test existed. In Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833 (1992), “a plurality of the Court abandoned

- 53 -
the ‘strict’ scrutiny standard in favor of the less stringent ‘undue burden’ standard.”

North Florida Women’s, 866 So. 2d at 634. “Under the ‘undue burden’ standard, a

government regulation cannot have the purpose or effect of placing a substantial

obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Id. at

634 n.46. In North Florida Women’s we rejected the undue burden standard and

maintained strict scrutiny review when reviewing statutes regulating the right to

abortion. But we also maintained T.W.’s rule that strict scrutiny review of statutes

regulating the right to abortion applies only if the statutes impose a “significant

restriction” on the right to abortion.

The majority claims that “[a]ny 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.” Majority op. at 24. But the

majority fails to acknowledge that the extent of the right of privacy “must be

considered in the context in which it is asserted and may not be considered wholly

independent of those circumstances.” Florida Bd. of Bar Examiners re Applicant,

443 So. 2d 71, 74 (Fla. 1983). As this Court has explained:

Practically any law interferes in some manner with someone’s
right of privacy. The difficulty lies in deciding the proper balance
between this right and the legitimate interest of the state. As the
representative of the people, the legislature is charged with the
responsibility of deciding where to draw the line. Only when that
decision clearly transgresses private rights should the courts interfere.

- 54 -
Stall v. State, 570 So. 2d 257, 261 (Fla. 1990) (quoting T.W., 551 So. 2d at 1204

(Grimes, J., concurring in part, dissenting in part)). This Court’s prior application

of a threshold significant restriction requirement to challenges to statutes

regulating the right to abortion simply recognizes that the right of privacy is not

boundless.

The majority claims that “[t]he 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.” Majority op. at 27. But the majority takes an unreasonably narrow

view of the purpose of informed consent. This Court has acknowledged that the

State has a compelling interest in safeguarding an individual’s “bodily integrity

and patient autonomy” by “prohibit[ing] termination of pregnancy procedures from

being performed or induced unless either the referring physician or the physician

performing the procedure first obtains informed and voluntary written consent

from the patient.” State v. Presidential Women’s Ctr., 937 So. 2d 114, 115-16

(Fla. 2006). The Mandatory Delay Law enhances informed consent by affording a

woman sufficient time to privately consider required relevant information

concerning “the medical risks of terminating or not terminating a pregnancy.” Id.

at 119. The Mandatory Delay Law also enhances voluntary consent—and thereby

- 55 -
maintains the integrity of the medical profession—by making a woman’s post-

informed reflective time free from undue influence by a physician or clinic

personnel.

The analysis employed by the majority gives no consideration to the full

context of the decision to obtain an abortion. The plurality opinion in Casey

describes this context:

Abortion is a unique act. It is an act fraught with consequences for
others: for the woman who must live with the implications of her
decision; for the persons who perform and assist in the procedure; for
the spouse, family, and society which must confront the knowledge
that these procedures exist, procedures some deem nothing short of an
act of violence against innocent human life; and, depending on one’s
beliefs, for the life or potential life that is aborted.

Casey, 505 U.S. at 852. The majority ignores the reality that adequate reflection

regarding such a uniquely consequential choice necessarily furthers the purpose of

informed consent. “The idea that important decisions will be more informed and

deliberate if they follow some period of reflection,” id. at 885, is entirely

reasonable.

[I]n providing time for reflection and reconsideration, the waiting
period helps ensure that a woman’s decision to abort is a well-
considered one . . . . It “is surely a small cost to impose to ensure that
the woman’s decision is well considered in light of its certain and
irreparable consequences on fetal life, and the possible effects on her
own.”

Id. at 969-70 (quoting City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462

U.S. 416, 474 (1983) (O’Connor, J., dissenting)). Although we have rejected

- 56 -
Casey’s undue burden standard, the reasoning of Casey regarding the purpose of

informed consent in the abortion context is independent of that standard. And that

reasoning simply recognizes the obvious.

The majority claims that “the trial court did not err in not explicitly deciding

the disputed issue of what standard is appropriate,” majority op. at 43, for a facial

constitutional challenge to a statute regulating the right to abortion because “[t]he

trial court’s finding that the Mandatory Delay Law imposes a significant restriction

on all women’s fundamental right of privacy, by its plain terms, is sufficient to

support an injunction barring the application of the law in its entirety.” Majority

op. at 42. But the trial court’s temporary injunction order will be searched in vain

for any finding that the Mandatory Delay law imposes a “significant restriction” on

the right to abortion. Regardless, the majority fails to acknowledge that—as a

matter of Florida law—the no-set-of-circumstances test standard applies to

Petitioners’ facial constitutional challenge. See, e.g., Abdool v. Bondi, 141 So. 3d

529, 538 (Fla. 2014) (“For a statute to be held facially unconstitutional, the

challenger must demonstrate that no set of circumstances exists in which the

statute can be constitutionally applied.”); Florida Dept. of Revenue v. City of

Gainesville, 918 So. 2d 250, 256 (Fla. 2005) (“[A] determination that a statute is

facially unconstitutional means that no set of circumstances exists under which the

statute would be valid.”); see also Cashatt v. State, 873 So. 2d 430, 434 (Fla. 1st

- 57 -
DCA 2004) (“A facial challenge to a statute is more difficult than an ‘as applied’

challenge, because the challenger must establish that no set of circumstances exists

under which the statute would be valid.”). Based on the record here, there is no

basis for concluding that Petitioners have established a likelihood that they will

prevail in meeting their heavy burden to maintain a successful facial challenge in

this case.

POLSTON, J., concurs.

Application for Review of the Decision of the District Court of Appeal –
Constitutional Construction
First District - Case No. 1D15-3048

(Leon County)

Julia Kaye and Susan Talcott Camp of American Civil Liberties Union
Foundation, New York, New York; Benjamin James Stevenson of American Civil
Liberties Union Foundation of Florida, Pensacola, Florida; Nancy Abudu of
American Civil Liberties Union Foundation of Florida, Miami, Florida,

for Petitioner Gainesville Woman Care, LLC

Autumn Katz of Center for Reproductive Rights, New York, New York,

for Petitioner Medical Students for Choice

Richard Errol Johnson of the Law Office of Richard E. Johnson, Tallahassee,
Florida,

for Petitioners

Pamela Jo Bondi, Attorney General, and Denise Mayo Harle, Deputy Solicitor
General, Tallahassee, Florida,

- 58 -
 for Respondents

Catherine Millas Kaiman, Coral Gables, Florida,

for Amici Curiae Experts and Organizations Supporting Survivors of
Intimate Partner Violence, Sexual Assault, and Trafficking

Elliot H. Scherker, Julissa Rodriguez, Stephanie Lauren Varela, and Katherine
Marie Clemente of Greenberg Traurig, P.A., Miami, Florida,

for Amicus Curiae National Abortion Federation

Angela Coin Vigil of Baker & McKenzie LLP, Miami, Florida; Jaclyn Pampel of
Baker & McKenzie LLP, Palo Alto, California; and Catherine Y. Stillman of Baker
& McKenzie LLP, New York, New York,

for Amicus Curiae Bioethicists of Florida

Matthew John Conigliaro of Carlton Fields Jorden Burt, P.A., Tampa, Florida,

for Amicus Curiae Florida Right to Life, Inc.

Stephen Craig Emmanuel of Ausley McMullen, Tallahassee, Florida,

for Amici Curiae Pellegrino Center for Clinical Bioethics, National Catholic
Bioethics Center, Catholic Medical Association, and Florida Conference of
Catholic Bishops

David Charles Gibbs, III of National Center for Life and Liberty, Largo, Florida,

for Amici Curiae Concerned Women for America and The National Legal
Foundation

Mathew Duane Staver, Anita Leigh Staver, Horatio Gabriel Mihet, and Roger K.
Gannam of Liberty Counsel, Orlando, Florida,

for Amici Curiae American College of Pediatricians and American
Association of Pro-life Obstetricians and Gynecologists

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