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Federal judge sounds dubious on abortion counseling registration

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The state’s new abortion law sparked a contentious dialogue between a federal judge and a lawyer for the state on Friday.

Part of that law requires those engaged in abortion referral or counseling services to pay a fee to register with the Agency for Health Care Administration (AHCA) and provides for criminal penalties for not registering.

The American Civil Liberties Union, representing several Florida reverends, rabbis and nonprofit organizations, is seeking a preliminary injunction to prevent enforcement of the provision. They say it infringes on their constitutional free speech and privacy rights.

“It intervenes in pastoral counseling,” the Rev. Bryan Fulwider of Orlando, the lead plaintiff, told reporters after the hearing. “You don’t want to presume any speech in such a setting.”

Attorney Wes Powell told Senior U.S. District Judge Robert Hinkle that a footnote in the state’s brief makes clear one intent of the provision: To invite prosecution of those who do not register.

Hinkle

Sparks flew, however, when Hinkle started questioning Blaine Winship, special counsel to Attorney General Pam Bondi. Hinkle already has chipped away at the law, passed last year, striking down a section that would have banned abortion providers from receiving state funding for non-abortion services.

Winship argued that instead of suing AHCA and the Attorney General, the ACLU should have gone after the state attorneys, who would actually bring criminal charges under the registration part of the law.

“So when (all) the state attorneys come in here and want to know who let them be sued, I can tell them the attorney general?” Hinkle said.

Hinkle also was smarting from the state’s decision to appeal his ruling in a case brought by the Seminole Tribe of Florida. There, he ruled that the Tribe could keep offering blackjack because the state promulgated a gambling rule that he found broke the state’s promise of blackjack exclusivity to the Seminoles.

Because an agency rule went against the state’s case, the state’s lawyers said “you should ignore that rule,” Hinkle said.

Winship

The judge also noted that a staff analysis for the bill (HB 1411) that became the abortion law didn’t have a “constitutional issues” section. (Actually, it did, including noting that “AHCA currently has sufficient rule-making authority to implement the provisions of the bill.”)

“Did someone tell staff, ‘we don’t want your opinion on the constitutional issues?’ ” he asked, quickly adding, “Well, that’s probably an unfair question.”

Hinkle also drilled into who was required to register, suggesting it was aimed only toward those who would counsel about abortions, not against them.

The judge asked Winship what Fulwider would have to say in a counseling session to comply with the law. Winship said he didn’t know.

“Then how is he to know? Isn’t that the point?” Hinkle said, adding that Winship seemed to “confess” he didn’t have a winning defense of the registration provision.

Abortion counselors “can’t speak unless they’re registered (with the state, and) if they don’t pay, they can’t speak,” the judge said.

Hinkle did not immediately rule on the injunction.

Before joining Florida Politics, journalist and attorney James Rosica was state government reporter for The Tampa Tribune. He attended journalism school in Washington, D.C., working at dailies and weekly papers in Philadelphia after graduation. Rosica joined the Tallahassee Democrat in 1997, later moving to the courts beat, where he reported on the 2000 presidential recount. In 2005, Rosica left journalism to attend law school in Philadelphia, afterwards working part time for a public-interest law firm. Returning to writing, he covered three legislative sessions in Tallahassee for The Associated Press, before joining the Tribune’s re-opened Tallahassee bureau in 2013. He can be reached at jim@floridapolitics.com.

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