A Florida appeals court denied an attorney’s attempt to have a woman released from jail ahead of trial by arguing that her fetus was being illegally detained without charge – but the attorney says he plans to continue the legal battle.
Florida’s third district court of appeal dismissed without prejudice a petition for a writ of habeas corpus filed by attorney William M Norris on behalf of the “unborn child” of Natalia Harrell.
The petition argued that the fetus is “a person under the Florida constitution and the United States constitution” and that it therefore should not effectively be detained without charge.
The ruling, written by judge Thomas Logue last Friday, contains “no opinion on whether such filing is being brought by a party with standing, whether the claims are legally cognizable, whether they have merit, or what remedies, if any, are available”.
Instead, it argued on a technicality that the petition failed to include a factual record of the case – which includes disputed allegations that Harrell has received inadequate prenatal care while in jail – and should be pursued in a lower court.
However, another judge from the panel in the case, Monica Gordo, published a partially dissenting opinion arguing that the court should reject the claim of “unlawful incarceration by the government and find habeas corpus does not lie under these limited and specific circumstances”.
While Gordo agreed that factual disputes about Harrell’s prenatal care needed to be hashed out in a lower court, she argued that the appeals court should rule on the habeas corpus claim, habeas corpus being the common law right for a person being detained to appear before a judge.
Gordo noted that there was agreement that the fetus had not been charged with a crime, and wrote: “To send this part of the petition back for a determination of facts which are undisputed seems odd … I see a significant difference between exercising judicial restraint and punting a legal issue placed squarely before the Court.”
She added: “No more could the government be accused of unlawfully detaining the unborn child in this case than could the mother be guilty of kidnapping over interstate lines if she chose to visit her grandmother in Georgia while eight months pregnant.”
Gordo charged that the case was a “badly-disguised Trojan horse”.
“The argument is nothing more than an attempt for the mother to leverage her unborn child as a basis to be released from lawful detention,” she wrote.
Harrell, 24, has been held at the Turner Guilford Knight correctional center in Miami since 26 July, when she was about six weeks pregnant.
She is charged with second-degree murder in the shooting death of Gladys Yvette Borcela during an argument in an Uber vehicle. Harrell is seeking immunity from prosecution under Florida’s “stand your ground” law, which allows individuals to use force in self-defense in some cases.
The case has drawn national attention because of the potential ramifications of recognizing embryos and fetuses as persons with constitutional rights. “Fetal personhood” has long been a goal of the anti-abortion movement in the US, and it has gained significant traction in the year since the US supreme court overturned Roe v Wade.
Mary Ziegler, a law professor and expert in abortion law, described fetal personhood as a “Pandora’s box” that would probably result in the total banning of abortion.
Norris said that it was not his intention to use the case to set such a precedent, though he said he acknowledged the possibility. “The fact that the unborn child is a person entitles them to a seat at the table when decisions are being made, and that’s the true revolutionary aspect of this case,” he said by phone on Monday.
“What we’re doing is we’re using the bits and pieces floating around in the law to make an argument to have an outcome that we want for our client. I’m not trying to achieve an outcome that’s universal … I’m not trying to eliminate a woman’s right to control her reproductive health. What I’m trying to get to is that when certain decisions that are made about the woman, you can’t make them without considering the impact on the fetus.
“The literature on the adverse outcomes on fetal development of incarceration is overwhelming,” he added.
A staff attorney for Pregnancy Justice, Emma Roth, said: “The inadequacy of prenatal care in jail can violate the constitutional rights of pregnant people, so the lawyer could and should have filed the habeas petition on her behalf rather than on behalf of her fetus. That would also avoid the harmful consequences of further enshrining fetal personhood.”
Anti-abortion activists in Florida are currently gathering signatures in an attempt to place a fetal personhood amendment on the ballot in 2024; the measure would enshrine the idea of an unalienable “right to life of the pre-born individual” and thereby outlaw abortion. Pro-choice organizations strongly oppose such measures, which they say are incompatible with full civil rights for women and people who can become pregnant.
Norris acknowledged the conflict but said granting a fetus due process would not guarantee any particular outcomes.
“It is indeed a Pandora’s box,” he said. “The question is whether we as a society are mature enough to deal with it.”
Norris now plans to pursue his argument before the judge in Harrell’s criminal case, he said.