Federal Judge Dubious of Florida Law Requiring Abortion Counselors To Register
FlaglerLive | January 30, 2017
A federal judge hammered an attorney representing the state during a contentious hearing Friday on an abortion law challenged by clergy members and abortion-rights proponents who contend the statute infringes on their First Amendment rights.
U.S. District Judge Robert Hinkle repeatedly challenged Blaine Winship, special counsel to Attorney General Pam Bondi, throughout a heated exchange during the hearing, in which the plaintiffs asked Hinkle to block enforcement of part of the 2016 law that went into effect this month.
The American Civil Liberties Union of Florida filed the lawsuit in December challenging a portion dealing with people or organizations that provide advice to women considering abortions. Hinkle had already blocked other provisions of the law in a ruling last summer.
The law, approved by the Republican-controlled Legislature and signed by Gov. Rick Scott, requires anyone who counsels women about abortions to provide an explanation about the procedure, including alternatives, before making referrals or assisting in obtaining abortions.
People or groups who provide information about abortions — considered “referral or counseling” agencies under the law — would have to register with the Agency for Health Care Administration, pay a $200 fee and could be charged with a felony for violating the statute.
The plaintiffs contend the registration requirement is a violation of their constitutional rights to freedom of speech, and could also make them targets for “harassment and retaliation” by anti-abortion activists, lawyer Wes Powell said Friday while urging Hinkle to grant the request for an injunction.
“Our clients have a very reasonable fear of prosecution,” Powell said.
But Winship maintained that the new law is merely an extension of a decades-old statute and that neither Bondi nor the health agency — the two defendants in the case — has the authority to enforce the law.
Instead, that responsibility lies with local state attorneys, Winship said, drawing the wrath of Hinkle.
Winship also insisted that the law would only apply to “counselors” who are funded specifically to provide advice about abortion.
But the law “doesn’t say anything about who’s funded to give advice,” Hinkle said, interrupting Winship as he did throughout the 90-minute hearing.
“That’s true,” Winship acknowledged.
Hinkle also blasted Winship when he told the judge that the attorney general’s office did not have an interpretation of whether the law amounted to a First Amendment violation.
“Did somebody tell the staff we don’t need your views on constitutionality?” Hinkle said, adding that it was “probably an unfair question.”
And Hinkle harshly questioned Winship’s position that the law was “viewpoint neutral” because the Agency for Health Care Administration interpreted the statute to apply to people who were advocating for or against abortion.
“The statute seems to me to be pretty one-sided,” the judge said.
Under the state’s logic, Hinkle said, groups whose sole purpose is to discourage abortions would also have to register with the state.
That would be the case, Winship said.
“I don’t know what you’re troubled by,” he added.
“Here’s what I’m troubled by. The church across the street says abortion is wrong. It’s immoral. They counsel about (adoption). …They now have to give people information about abortion,” Hinkle said.
The registration would be required “whether you’re saying abortion is a good thing or abortion is a bad thing,” Winship persisted.
Hinkle continued to tangle with Winship on that point, asking the state’s lawyer what the Rev. Bryan Fulwider, an Orlando pastor who is a plaintiff in the case, would have to say to a woman seeking advice.
“I don’t know specifically what he has to say,” Winship said, again eliciting the judge’s ire.
“How is he supposed to know (what to say) if you, as the state’s attorney (general), can’t say?” Hinkle demanded.
Winship said he was not prepared to defend the merits of the law Friday because the hearing was focused on the request for an injunction.
But that response did not please Hinkle, either.
“If the attorney general of the state of Florida can say, ‘I don’t know what he has to say, he can find out when he gets prosecuted’ … it almost sounds like a concession on the merits,” an obviously irritated Hinkle said.
Hinkle also took issue with a footnote in the state’s brief where lawyers for Florida revealed that the purpose of the law included giving the public “the right to seek enforcement by the applicable state attorney.”
The footnote contradicted the state’s contention that the law was “viewpoint neutral,” the judge said.
“The very purpose of the law … was to allow Florida to refer these folks for prosecution,” Hinkle said.
But that provision has “a value to the public,” Winship said.
The registration “gives the public confidence” that the abortion counselors are “coming out of the woodwork” and are “in the sunshine,” he said.
But Powell said the law would have a “chilling effect” on clergy and others who counsel women at a difficult time.
“It is hard to picture a law more offensive to the First Amendment and to the ability of these organizations and these clergy to counsel the women who come to see them. If this doesn’t hinder that, I don’t know what does,” he told reporters after the hearing.
Over the past few years, Hinkle has ruled against the state in a series of high-profile cases dealing with gambling, same-sex marriage and abortion. The judge did not rule Friday but said he would issue a decision promptly.
–Dara Kam, News Service of Florida