By Craig Waters
The national “fetal personhood” debate has arrived in Florida’s courts, and you can bet it won’t go away until it is resolved one way or another.
That became clear at recent arguments before the Florida Supreme Court on a citizens’ proposal to add broad abortion rights to the state constitution if voters approve them in November’s elections. Polls suggest Floridians support the proposal by large margins.
Currently, only the courts can block that proposal from the ballot after it gained nearly a million valid signatures. The proposal would add the core principles of Roe v. Wade to Florida law after the U.S. Supreme Court reversed Roe two years ago. The reversal erased a ruling that fetuses constitutionally are not “persons” and left a void in its place.
At the recent arguments, Florida’s Chief Justice Carlos Muñiz repeatedly commented on whether a fetus is legally a person under existing state law. Muñiz is one of five justices added to the court by anti-abortion Gov. Ron DeSantis, creating a majority that now controls the seven-member court.
“It kind of assumes,” Muñiz said of the ballot initiative, “that the constitution as it exists right now is silent as to any rights of the unborn. And I don’t know if that assumption is correct.”
The national fetal personhood movement, often promoted by fundamentalist Christian groups, has become more active since Roe was overturned, and has had limited successes in a few states.
For example, Alabama’s Supreme Court recently declared frozen human embryos to be persons under that state’s Wrongful Death of a Minor Act. Some states have partly relied on the idea to prosecute drug-addicted pregnant women for delivering drugs to their unborn children.
If fetuses have legal personhood, abortion-rights activists argue it would infringe the rights of pregnant women and have serious implications for medical procedures like in vitro fertilization and the treatment of ectopic pregnancies and miscarriages.
For all practical matters, the Florida Constitution is silent on the issue of fetal personhood, despite Chief Justice Muniz’s suggestion that fetal personhood rights might already exist.
None of the other six justices at the recent arguments joined Muñiz in commenting on the issue, but there has been a rising level of public debate on the issue outside the courts. Florida’s legislature has even made moves toward taking a stand on it, however tentative.
For example, there is a bill pending in the 2024 Legislature that would allow wrongful death lawsuits in some instances for the death of “an unborn child.” Democrats and reproductive rights groups argue the bill is a back-door way to establish fetal personhood in the law. “If you’re going to create personhood, then be obvious and say ‘this is what we are doing in Florida,’ ” said state Sen. Lori Berman (D-Boynton Beach).
Muñiz himself pointed to a section of the state constitution guaranteeing all persons the right to enjoy and defend life and liberty. He also touched on other concepts supporting the idea. Criminal law, he noted, already recognizes a special status for fetuses by penalizing some types of injuries to them.
The chief justice made these comments even as he and others concluded it was not an issue they can address until future legal cases arise. The lawyer for Florida Attorney General Ashley Moody, when pressed by Muñiz, took no position on the issue but agreed it has “potential.”
There also have been proposals, none successful, to explicitly add fetal personhood to the Florida Constitution. At least one Florida court has denied a personhood claim in a habeas corpus case filed on behalf of a fetus whose mother was held in jail.
However, the argument explored by Muñiz was whether those rights already implicitly exist in the state constitution. No Florida court to date has said they do.
If such rights were recognized based on existing constitutional language, they theoretically could retroactively change the legal issues surrounding the proposed abortion amendment.
In September 2000, the Florida Supreme Court voided an amendment to strengthen the death penalty based on a somewhat similar argument. It did so even though two years had passed since 73 percent of the November 1998 voters approved the amendment.
Justices at that time reasoned that the amendment failed to tell voters it diminished existing constitutional rights of death-row inmates. Unlike the present case, however, those rights already had been clearly recognized under Florida law.
It is uncertain whether any Florida court would reach the same result here, where broad personhood rights currently are not part of clearly established law.
Craig Waters, a member of the FLCGA Board of Trustees, is a lawyer who retired two years ago after a 35-year career with Florida’s state courts. The views expressed here are his own.
Michael J Cocchiola says
I would say that a majority of Floriduh’s citizens would be against personhood for embryos, but the legislature would be only too happy to stick it to the libs by replicating Alabama’s biblefoolery.
Bill C says
Every sperm is sacred
The Sour Kraut says
The extreme Right will not be happy until we have a theocracy. We know how well that works in Iran.
T says
Gop are taken our rights in front of our faces and some people cheer a disgrace.I don’t believe in God but if you do he judges not you and you will be the ones judged.
DaleL says
If it can be frozen, stored for decades (or longer), then thawed out and implanted, it seems more like a seed than a child. Thawing an embryo, without implantation, kills it. The embryo can be frozen and thawed because it has no organs. It is a group of undifferentiated cells. Starter cells, like those in a seed.
When I eat a walnut, I do not consider that I have eaten a tree. Just because an embryo might potentially become a person, does not make it a person. To think that something which might be, to be the same as that which exits, is to me a form of insanity.
Deborah Coffey says
So, an embryo should get an immediate social security number if it’s a “child.” What would stop a woman from having her eggs harvested three or four times a year (if she could afford it), go through the ivf process, and after several years claim 58 “children” as tax deductions? Aside from the fundamentalist religious aspect of this ruling, it’s just stupid and oppressive.
Wow says
All this chuff about the sacredness of embryos. I am amazed that the “right to life” crowd never ever mentions gun violence or suicide prevention. Shouldn’t these be hot topics for them? Just don’t get it. All the little crosses for abortion and no little crosses for the children murdered in the classroom? At least be consistent in your zealotry.
Skibum says
Here we go again. Conservative pseudo-Christians who love the Old Testament, but abhor AND ignore Jesus’ commands in the New Testament, just won’t stop until every single right that has been bestowed on women in today’s modern society has been reversed and women are left to be nothing more than humanoid-like birth vessels without the ability to think or make decisions for themselves. It disgusts me to see and hear all of the outrageous legal hoops women must undergo in many states today when they make the choice to have an abortion for whatever reason, and at the same time we can find advertisements on TV, on the radio, in newspapers and magazines catering to men regarding the little blue pill designed for male virility that can be ordered anonymously and received by priority mail in one day to help enrich their sexual adventures. There is such a huge chasm between how males and females are treated regarding sexual activity and reproduction in our nation where we laughably talk so highly of freedom!
KES says
Psalm 139:13 For You (God) created my inmost being; You (God) knit me together in my mother’s womb. God defines when life begins not men or women. Interestingly, we use the word “fetus” so we don’t have say unborn baby.
Laurel says
So, does Muniz want to distribute Unbirth Certificates? I can flippin’ guarantee you that if it was Muniz’s body to be used solely as an incubator without recourse, or personal decisions, this whole circus would never come up.
Well, ladies, there is always abstinence.
What really bothers me is that these nutjobs call themselves “Christians.”
You can’t fix stupid.
Pierre Tristam says
Accountable human beings write laws, not unaccountable gods.
Tony Mack says
Can we get all those little “people” registered as Democrats? That’s really freak out the Republicans who continue to practice medicine without a license…
DaleL says
The embryos in question are not “…in my mother’s womb.” They are created outside of a woman’s body. They are stored in a freezer at the temperature of liquid nitrogen. The embryos cannot grow into fetuses unless they are implanted in a woman’s uterus.
We use the term fetus because it is the correct medical term. In any case, the issue concerns the earlier stage of development, the embryo.
The definition of a “fetus”according to the American Heritage® Dictionary of the English Language, 5th Edition:
“In humans, the unborn young from the end of the eighth week after conception to the moment of birth, as distinguished from the earlier embryo.”
The Bible is full of contradictions.
Psalm 137:9: How blessed will be the one who seizes and dashes your little ones against the rock.
Foresee says
Fetal personhood arises from Onan’s Law (Genesis 38 8-10): ” Then Judah said to Onan, ‘Sleep with your brother’s wife and fulfill your duty to her as a brother-in-law to raise up offspring for your [dead] brother.’ But Onan knew that the child would not be his; so whenever he slept with his brother’s wife, he spilled his semen on the ground to keep from providing offspring for his brother. What he did was wicked in the Lord’s sight; so the Lord put him to death also.” This ancient directive had more to do with tribal inheritance laws and keeping up numbers of fighters to defend the tribe, from a time when the earth was the entirety of the universe and stars were holes in the sky where the light of heaven shone through.
KES says
Psalm 14:1 “The fool says in his heart, There is no God.”
Deborah Coffey says
LOL. Thanks for posting.
Skibum says
I respect your right to believe, interpret and adhere to whatever religious views you like. But our laws are not the same as biblical “laws”, nor should they be. We don’t stone to death women as was outlined in the Bible. Our courts of law and judges are not originated in or by some church or particular religion. And if you want to get right down to it, we keep hearing that the Bible commands that we not judge others for that is God’s area of concern, yet what kind of society would we have if we did not have law enforcement, courts of law and judges to hold accountable those who do not conform to society’s laws? People need to be very careful about dictating laws from biblical texts. We don’t like it when the Taliban make their religious laws, based on their particular religious beliefs. There are so many religions in this world, so many different beliefs, all of which you will find adherents who seem to think that singular religious belief is the one and only true and correct one and that all others are of satan or should be referred to as “cults”. You, KES, are NOT the arbiter for all of us when it comes to the legal status of fetuses or human birth, no matter how many passages you read. You may agree with it, but you make that determination for yourself, not society or our legal system.
Edith Campins says
Every day Republicans do something to take us back to the dark ages. Pushing religion, forgetting the first Americans came here to escape religious persecution, taking away womem’s rights while blathering on about Sharia law, the hyprocrisy is astounding.
Pierre Tristam says
I never said there is no god. I just said there’s not one, or any, we can email. The supernatural and the constitutional are not compatible.
Anna Bystrik says
biblically abortions are not prohibited , once even described biblically, nothing to do with religion, this is just an assault on females (from the right: by criminalizing volunteer or medically needed abortion , from the left: by stealing women bathrooms and sports and statistics , a lot of senseless greedy misogyny in the society)
Anna Bystrik says
Anti-abortionists are nuts: a fish and a palmetto bug have more emotions and feelings than an embryo right after conception, so would they turn vegans and let bugs run around their house? Theu can as well outlaw masturbation and menstruation not to “kill” sperms and eggs. The right is correct on many things, like open borders are not good and violent criminals back on the streets are not good, and males should not be in female sports and bathrooms, but on this issue they are dead wrong, and the majority of both men and women of this country is for civility, choice, safe affordable abortion option . In a perfect world there will be neither unwanted nor forced nor ill/unsafe pregnancies, and no need to abort , but our world is not perfect. So get sane and real already
DaleL says
KES, your Bible quote of Psalm 14:1 is incomplete. It reads: “The fool hath said in his heart, “There is no God.” They are corrupt; they have done abominable works; there is none that doeth good.”
Even if the Bible were an authority on anything, Psalm 14:1 is no more definitive than Psalm 137:9.
There is also the issue as to who speaks for “god”? I am reminded of line from Star Trek V: The Final Frontier. Captain Kirk asks a creature who is claiming to be God, “What does God need with a starship?”
William Shatner says he got the inspiration for the movie after watching people like Jimmy Swaggart and Jim and Tammy Faye Bakker on TV. This was during the heyday of televised evangelism, when people were forking over all of their money to already-rich TV celebs claiming to have a direct connection to God.
Laurel says
I just love the way these politically motivated Evangelicals skip thinking things out (I thought they weren’t supposed to be politically motivated).
So, what happens to these two celled, frozen *children* if the parents don’t thaw them out before they, themselves, die? What if there is a blackout, do they sue FPL (or whatever company)? What if the parents only implant one, or two, of the frozen *kids* what happens to the rest? Should the government force implantation of all (how many?) cells? What if there are 30 frozen embryos? Should the number be limited by the government? What happens if the embryo isn’t viable inside the womb and dies? What if the mother has her period, should she be taken to court for murder, or investigated for such? What if the *kid* has frostbite and doesn’t survive, who should be sued then? What if the cells malfunction, who is at fault then?
The foolishness appears to have no end. Welcome to crazy town.
Sherry says
Thank you Dale L. and Skibum! The bible was not written by God. . . it was written by men in order to civilize/control to masses. “Cherry Picking” pieces and parts of bible versus in order to justify your own negative opinions and actions is nothing short of despicable ! Of course evangelical ministers do it all the time. No wonder so many have turned away from organized religion.
Anna Bystrik says
biblically abortions are not prohibited , once even described biblically, nothing to do with religion, just an assault on females (from the right by criminalizing volunteer or medically needed abortion , from the left by stealing women bathrooms and sports and statistics , a lot of senseless greedy misogyny in the society)
Sherry says
Right On Laurel!