Florida and Abortion Rights Group Argue Over Preliminary Injunction

The Florida Department of Health could still prosecute abortion-rights group Floridians Protecting Freedom or stations airing its ads after Election Day, so a preliminary injunction is needed, the group told the U.S. District Court of the Northern District of Florida in supplemental filings Tuesday (see 2410290028). The court last week requested supplemental briefs from both sides on whether an injunction would be needed after Election Day and whether the case is now moot because Florida voters that day would be deciding the fate of the amendment that FPF’s "Caroline" advertisement supported. “Even if FPF no longer actively airs ‘Caroline’ via broadcast stations, ‘Caroline’ will continue to be available to the public online; FPF cannot put that speech back in a box,” FPF said. However, “The risk of post-election enforcement appears quite unlikely,” said the Florida Department of Health. The Florida DOH has said it isn’t planning to prosecute TV stations airing the ad, and would do so only if it finds that the ad's message harmed a Florida citizen. The ad says that abortions aren’t available in Florida to save the life of the mother. “FPF raises the specter that the presence of its advertisement online might somehow trigger a belated enforcement action,” the Florida DOH said. “But such a fear is misplaced.” Television “is unique in its ability to reach a captive audience,” the state said. Florida “has never taken the position that it would consider mere publication of the ‘Caroline’ commercial online a sanitary nuisance in Florida,” the state said. “The context and circumstances are entirely different.” In addition, Florida said the case isn’t moot while the ads air on TV but will become so after the election. “It is no answer to suggest that there is some lingering possibility of enforcement in a different, future context,” the state said. “Any risk of enforcement-related harm is highly speculative.” After the election but before the current temporary restraining order against the state expires Nov. 12, Florida will file supplemental materials with the court on whether it has found harms that would trigger prosecution, the state said. FPF said that Florida continuing to “defend the Department’s ability to enforce sanitary nuisance laws as applied to FPF’s speech is itself reason to conclude that this case is not moot.”