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How states giving rights to fetuses could set up a national case on abortion

Abortion access advocates are chanting and waiving signs outside the Florida Supreme Court. Inside, justices have just heard arguments on the ballot language for a proposed state constitutional amendment that would protect abortion access up to the point of viability.
Regan McCarthy
Abortion access advocates are chanting and waiving signs outside the Florida Supreme Court. Inside, justices have just heard arguments on the ballot language for a proposed state constitutional amendment that would protect abortion access up to the point of viability.

TALLAHASSEE, Fla. — Last month, when the Florida Supreme Court heard arguments for a proposed state constitutional amendment that would explicitly protect access to abortion, the discussion took a surprising turn for attendees like state House Minority Leader Fentrice Driskell.

"The chief justice seemed to really be trained on trying to understand what the effects of this ballot initiative would be on other areas of the law," Driskell said.

Specifically, Chief Justice Carlos Muñiz wanted to know how the amendment might interact with Article I of Florida's Constitution, which grants "all natural persons" the inalienable right to life.

"I don't know that I could affirmatively say that the term 'natural person' doesn't, as a matter of ordinary meaning, include the unborn," Muñiz said during the hearing.

It wasn't the first time Muñiz made that type of comment. He previously spoke about how Article I relates to rights for fetuses during a hearing on Florida's current 15-week abortion ban.

"Chief Justice Muñiz is all but writing up an engraved invitation to make this argument to the Florida Supreme Court," said University of California-Davis law professor Mary Ziegler.

The court's ruling in both cases is pending and it remains to be seen whether the chief justice's questions about fetal personhood will impact the outcomes. But Ziegler said the question of fetal personhood "isn't going anywhere."

It's a topic that's made headlines since the Alabama Supreme Court ruled in a recent wrongful death case that embryos are "extrauterine children." That ruling raised questions around access to in-vitro fertilization (IVF) in the state and sent ripples throughout the country.

Since then, Alabama lawmakers have rushed to support a bill to protect IVF, a fertility procedure that remains very popular with Republicans and Democrats alike. In Florida, lawmakers paused their efforts to add fetuses to their own state's wrongful death law.

Ziegler, who has written several books on abortion law and history, said many of the steps states are taking on the issue are part of a plan that's been in place since the 1960s.

State laws giving rights to fetuses may be setting the pieces for a longer game

For decades, members of the anti-abortion rights movement have been working to put laws on the books across the country that extend rights to fetuses — like fetal homicide, wrongful death, and child support during pregnancy.

"The idea was to go to sympathetic judges, like those on the Florida Supreme Court," Ziegler told NPR, "and say, 'Isn't it weird that a fetus isn't a rights holder for the purposes of the state constitution or the purposes of the abortion law, but it is in all these other contexts?'"

Ziegler said each new law passed creates a cumulative effect. The more times a state recognizes a fetus as a person in one area of law, the easier it will be for lawyers to make the argument that it's inconsistent that fetuses aren't recognized as people by the Constitution. If states like Alabama and Florida recognize fetuses as people in their laws and constitutions, she said, it helps set the dominos for an argument on the national level.

"The more states pass laws recognizing a fetus as a rights holder in a variety of contexts, the more you're going to see the anti-abortion movement wanting to return to the U.S. Supreme Court and say, 'Actually under the 14th Amendment of the federal Constitution, a fetus is also a rights holder,'" Ziegler said.

When the U.S. Supreme Court overturned Roe v. Wade in 2022, decisions about abortion regulation reverted to individual states. But Ziegler said if states can continually make laws that give rights to fetuses and that makes it to the highest court, it could potentially cut off access to abortion nationwide.

Ziegler said the plan she believes the anti-abortion movement is working toward now is similar to one that's worked in the past. When the U.S. Supreme Court overturned the constitutional right to abortion, Justice Brett Kavanaugh wrote a concurring opinion, in which he pointed to states that had laws on the books against abortion access.

"In recent years, a significant number of States have enacted abortion restrictions that directly conflict with Roe. Those laws cannot be dismissed as political stunts or as outlier laws," Kavanaugh wrote. "Those numerous state laws collectively represent the sincere and deeply held views of tens of millions of Americans."

Andrew Shirvell (center in sunglasses) is founder of the anti-abortion group Florida Voice for the Unborn. He's standing on the steps of the Florida Supreme Court protesting abortion access. He said if Florida passes a bill letting parents collect damages for the loss of a pregnancy it would give abortion opponents another law to point to in the effort to establish fetal personhood in the state.
/ Regan McCarthy
/
Regan McCarthy
Andrew Shirvell (center in sunglasses) is founder of the anti-abortion group Florida Voice for the Unborn. He's standing on the steps of the Florida Supreme Court protesting abortion access. He said if Florida passes a bill letting parents collect damages for the loss of a pregnancy it would give abortion opponents another law to point to in the effort to establish fetal personhood in the state.

A Florida bill is paused for this session, but not gone for good

Florida Republican lawmakers recently considered a bill that would have let parents collect damages in civil suits for the loss of a pregnancy. While the bill's sponsors (who helped to pass Florida's pending six-week abortion ban) said the wrongful death measure had nothing to do with abortion, advocates on both sides of the issue disagreed.

Andrew Shirvell, founder of the group Florida Voice for the Unborn, told lawmakers as he spoke about the bill in committee that he would "say the quiet part out loud." From his viewpoint, he said, the wrongful death bill is "another reaffirmation that unborn children should be considered nothing less than human persons under our state laws and our state constitution."

Opponents worried the measure could cut off access to reproductive health care including abortion and IVF, even though the measure included a definition for the term "unborn child" that specified it must be in the womb. State Senate Minority Leader Lauren Book raised concerns the measure could be a vehicle to bring a fetal personhood case before Chief Justice Muñiz.

"When you're tiptoeing and you're delving for personhood, you're coming for it and it's only a matter of time," Book said. "I think for a long time people suggested that advocates [and] lawmakers who talked about personhood, coming after IVF, the abortion battle, that we were somehow hyperbolic or hysterical. Well, look where we are."

Shortly after the Alabama ruling, the Senate sponsor of Florida's bill pulled the measure from its final committee stop.

"Although I have worked diligently to respond to questions and concerns, I understand there is still work that needs to be done," said Republican state Sen. Erin Grall in a statement. "It is important we get the policy right with an issue of this significance."

Book said she hopes new attention on the Alabama case and the stalled Florida bill could spell the end for the push for fetal personhood.

"People across the country are talking about it," Book said. "I think at the end of the day, Republicans realize this is a problem. This isn't something that they should be doing."

In the wake of the Alabama ruling, the campaign arm for U.S. Senate Republicans advised candidates to "clearly and concisely reject" any efforts to restrict access to IVF.

But already, Republican legislative leaders in Florida have indicated plans to revisit their wrongful death bill next year—potentially renewing the discussion surrounding fetal personhood.

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