How Florida uses a little-known law to punish abortion clinics

TALLAHASSEE, Fla. — Florida regulators over the last year punished more than a dozen abortion providers for violating a nearly decade-old law that requires pregnant patients wait 24 hours before getting the procedure.

Florida legislators approved the law in 2015, but it remained in limbo after the American Civil Liberties Union challenged it. After a judge upheld the law in April, Florida’s abortion regulator, the Agency for Health Care Administration, almost immediately began issuing fines.

Abortion-rights advocates say providers were given little chance to prepare for the law, which requires patients to wait 24 hours between clinic visits. In some instances, clinics were not in compliance with the “24 hour” law because of paperwork issues or computer problems.

Florida has become a hub for abortions since the fall of Roe v. Wade last year, despite a new law limiting abortions after 15 weeks. Thousands of people have come to Florida from across the southeast to get abortions as other states in the region impose even stricter limits on access, and abortion rights groups say the “24 hour” rule will further burden people traveling to Florida who will be forced to stay in the state longer.

“We have a lot of independent clinics in this state that are working hard to provide women with access, so it’s a shame,” Laura Goodhue, executive director of the Florida Alliance of Planned Parenthood Affiliates, said in an interview. “And women are getting hurt in the process, especially the ones coming from out of state.”

So far, the agency has issued almost $500,000 in fines to 14 of Florida’s 52 abortion clinics. While Planned Parenthood has an advocacy arm that helped prepare its 38 Florida clinics for the “24 hour” law, smaller independent clinics couldn’t afford the same luxury, Goodhue said.

The “24 hour” rule is another example of Florida restricting abortion access, though it’s not has high profile as the 2022 law banning abortion at 15 weeks that the Republican-controlled Legislature approved last year. The law doesn’t include exceptions for rape or incest.

This year, with Gov. Ron DeSantis’ support, Florida Republicans are seeking to ban abortions at six weeks of pregnancy. Republicans hold supermajorities in the state House and Senate, so Democrats have no power to even slow the GOP from approving the measure. The new proposal, and “24 hour law,” are strong indicators that some GOP-led states will continue to crack down on abortions in the wake of last year’s Supreme Court decision overturning Roe.

Florida Democratic House leader Rep. Fentrice Driskell had especially harsh words for Republicans.

“It's very easy to be tough on abortion when you're sitting hundreds of miles away in your ivory tower in Tallahassee versus these doctors and nurses who are dealing with women who are about to make one of the most consequential decisions of their lives,” Driskell said.

State inspectors levied the maximum $1,000 fine on clinics whose individual patient files didn’t include any notes or paperwork showing compliance with the 24-hour law. The state issued the largest fine, $193,000, against an Orlando abortion clinic that inspectors alleged violated the law for 193 patients.

The clinic, Center of Orlando for Women, however, challenged the fine and a lawyer representing it, Julie Gallagher, argued that imposing the maximum fine for each violation was arbitrary and unfair, according to records filed with the state Division of Administrative Hearings.

Gallagher and lawyers representing six other clinics that are challenging the fines claimed state inspectors also failed to account for clinics’ ongoing efforts to comply with the law.

“At trial, the agency had no justification, or explanation, for the maximum fine other than ‘we always start at the maximum’ or ‘we always do it this way,’” Gallagher wrote in an email to POLITICO. “This is not a valid use of agency discretion.”

Lawyers for AHCA, however, wrote in agency documents that the Center of Orlando for Women failed to conduct due diligence to prepare for the “24 hour” law, including hiring a legal adviser or calling other clinics for advice.

The lawyers also wrote that the agency is under no legal obligation to promptly alert clinics about changes in law.

The state began enforcing the 24 hour law after a Leon County Circuit Court Judge Angela Dempsey tossed out the legal challenge to the law in April, which was first filed by the Bread and Roses Women’s Health Center in Gainesville. Lawyers from the ACLU argued on behalf of the clinic that the law violated a privacy right in the state Constitution that had been successfully cited in the past to uphold abortion protections.

Dempsey, however, wrote in an order that standards for several medical procedures also require that patients wait 24 hours. She was appointed to the bench by former GOP Gov. Jeb Bush.

“Twenty-four hours is the minimum time needed to sleep on such an important decision,” Dempsey wrote. “And it is shorter than or the same waiting periods for other decisions that implicate significant constitutional interests — privacy.”

The state started issuing fines 17 days after Dempsey issued her final ruling on April 25, AHCA spokesperson Bailey Smith said.

“The 17 days between the circuit court judge’s orders provided ample notice of her decision for clinics to comply,” Smith wrote in an email. “The Agency’s Division of Health Quality Assurance has surveyors throughout that state that are efficient and diligent in their work to protect the health and safety of Floridians.”

Of the 14 clinics fined, at least three settled with the state for reduced fines. Today’s Women Medical Center in Miami, for example, was initially levied a $2,000 fine but the state settled for $500 after the medical director of the clinic provided additional information showing that the violations were not as serious as reported by an inspector. For instance, the medical equipment at the clinic used to observe the fetus records the date and time of each examination, but the equipment was not programmed to include the date and time information in patient files.

A doctor with the clinic declined to speak on the record, fearing backlash from anti-abortion groups.