A Florida appeals court rejected a lawyer’s bid to have a woman released from prison pending trial, arguing that she the fetus was illegally detained without charges – but the lawyer says he plans to continue the legal battle.
Florida Court of Appeals for the Third Circuit dismissed without prejudice habeas corpus petition filed by attorney William Norris on behalf of “unborn child” Natalie Harrell.
The petition argued that the fetus is a “person under Florida constitution and constitution of the United States,” and that, therefore, he should not actually be detained without charge.
The ruling, written by Judge Thomas Logue last Friday, contained “no opinion as to whether such application is made by a party of standing, whether the claims are legally cognizable, whether they have merit, or what remedies, if any, are available.” .
Instead, he argued that the motion lacked the factual record of the case, which includes disputed allegations that Harrell did not receive adequate prenatal care while in prison, and should be heard in a lower court.
However, another judge on the panel in the case, Monica Gordo, issued a partially dissenting opinion, arguing that the court should reject the claim of “unlawful imprisonment by the government and find that habeas corpus does not lie in these limited and specific circumstances.”
Although Gorda agreed that the factual dispute over Harrell’s prenatal care should be heard in a lower court, she argued that the appeals court should rule on the habeas corpus claim because habeas corpus is a general right for a detainee persons 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 to determine the facts that are undisputed seems strange … I see a significant difference between exercising judicial restraint and placing a legal the problem directly before the court”.
She added: “In this case, the government can no more be accused of wrongfully detaining an unborn child than a mother can be accused of kidnapping across interstate lines when she decided to visit her grandmother in Georgia when she was eight months pregnant.”
Gordo charged that the case was a “poorly disguised Trojan horse.”
“The argument is nothing more than a mother’s attempt to use her unborn child as an excuse to be released from legal custody,” she wrote.
Harrell, 24, has been in the Turner Guilford Knight Correctional Center in Miami since July 26, when she was six weeks pregnant.
She is charged with second-degree murder in the killing of Gladys Yvette Barcelo during an argument in an Uber car. Harrell is seeking immunity from prosecution under Florida’s “stand your ground” law, which allows people to use force in self-defense in some cases.
The case drew national attention because of the potential implications of recognizing embryos and fetuses as persons with constitutional rights. “Fetal personhood” has long been a target of the anti-abortion movement in the US, and it has been gained considerable strength a year after the US Supreme Court overturned Roe v. Wade.
Mary Ziegler, law professor and expert on abortion laws, described fetal personhood as a “Pandora’s box” that would likely lead to a complete ban on abortion.
Norris said he had no intention of using the case to set such a precedent, although he acknowledged the possibility. “The fact that the unborn child is a person gives it a right to a seat at the table when decisions are made, and that’s the real revolutionary aspect of this case,” he said by phone Monday.
“What we do is we use bits and pieces of the law to make the case to get the result we want for our client. I’m not trying to achieve a one-size-fits-all outcome… I’m not trying to take away women’s right to control their reproductive health. I’m trying to understand that when certain decisions are made about a woman, you can’t make them without considering the effect on the fetus.”
“There is a huge amount of literature on the adverse effects of incarceration on fetal development,” he added.
Anti-abortion activists in Florida right now collection of signatures in an attempt to put a fetal identity amendment on the 2024 ballot; this measure would enshrine the idea of the inalienable “right to life of the unborn” and thus ban abortion. Pro-choice organizations strongly oppose such measures, which they believe are incompatible with the full civil rights of women and people who can become pregnant.
Norris acknowledged the conflict, but said granting the fruits of due process does not guarantee any specific results.
“It really is 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 continue his arguments before a criminal judge in Harrell’s case, he said.
