A lawyer’s attempt to have a pregnant woman released from jail ahead of trial by arguing that her fetus has been subject to “unlawful and illegal detention” could have profound consequences for the rights of women in Florida.
Attorney William M Norris filed a petition for a writ of habeas corpus on behalf of the “unborn child” of Natalia Harrell in Florida’s third district court of appeal on 16 February, the Miami Herald first reported.
The filing argues that the fetus “is a person under the Florida constitution and the United States constitution” and therefore has the right to due process.
“The unborn child has not been charged with a criminal offense by respondents or the Miami Dade state attorney’s office, yet respondents have unborn child in a detention center known as TGK in Miami Dade county, Florida,” the filing states.
It further alleges that the jail has failed to provide Harrell with adequate prenatal nutrition and medical care, saying that she has not been treated by an obstetrician-gynecologist since October, and that on one occasion she was left inside a transport van with inside temperatures exceeding 100F (37C) for an extended period.
Harrell, 24, was six weeks pregnant when she was arrested on 26 July 2022 and charged in connection with the death of Gladys Yvette Borcela during an argument in an Uber on 23 July. Harrell has pleaded not guilty and has been held without bail since her arrest.
The state of Florida has urged the court to dismiss the petition and disputed the allegation that Harrell has not received adequate medical care, the Miami Herald reported.
Norris did not respond to requests for comment from the Guardian, but in interviews with other media outlets, his rhetoric has echoed that of the “fetal personhood” movement, which seeks to grant constitutional legal protection to fetuses and embryos.
“An unborn child is a person,” Norris told NBC News. “The person has constitutional rights, and one of them is the right not to be deprived of liberty without due process of law.”
“Fetal personhood” laws are a key aim of the anti-abortion movement in the US following the US supreme court striking down Roe v Wade last summer. They are strongly opposed by pro-choice and women’s rights organizations. Pregnancy Justice, the civil rights group formerly known as National Advocates for Pregnant Women, argues: “It is not possible to add fertilized eggs, embryos and fetuses to the community of constitutional persons without subtracting people with the capacity for pregnancy.”
“If you recognize fetal personhood, this is a Pandora’s box,” said Mary Ziegler, a law professor and expert in abortion law. Ziegler said it was hard to see how the court could grant a writ in Harrell’s case without establishing “some kind of generalizable rule” of fetal personhood.
“It has the potential to establish that abortion is always illegal and potentially to expose women to punishment or make it a violation of the Florida constitution to perform an abortion,” she said. “It would mean that you can’t imprison people who are pregnant, no matter what crime.”
Ziegler said that such far-reaching consequences – some of which could alienate the “tough on crime” politics of many within the rightwing anti-abortion movement – were why the anti-abortion movement has largely steered clear of habeas corpus petitions in its pursuit of fetal personhood.
But the case is yet another indication of the changed legal landscape post-Roe.
“The fetal personhood movement has certainly gained traction, moving from a fringe idea to codified laws across the country,” a spokesperson for Pregnancy Justice said in a statement, adding: “And while their goal is to stop abortion and control people’s bodily autonomy, they’ve given little thought to how this impacts all facets of the law beyond abortion … There’s no telling where this will end: HOV lanes, taxes, worker’s comp, child custody/kidnapping cases, criminal law, and on and on.”
This article was amended on 27 February to clarify that Norris represents only the fetus in this case, not Harrell herself.
