The Architects of Florida’s 6-week Abortion Ban Have Another Proposal
BY ROMY ELLENBOGEN HERALD/TIMES TALLAHASSEE BUREAU
JANUARY 25, 2024 9:31 AM
TALLAHASSEE Florida lawmakers want parents to be able to receive civil damages for the wrongful death of an unborn child — legislation that has abortion advocates fearful it could punish doctors who perform the already limited procedure.
In Florida, someone can already be criminally charged for the death of a fetus, a law that came about in 2014 after a man tricked his ex-girlfriend into taking medication that caused her to miscarry a seven-week-old embryo. The majority of U.S. states also allow for some civil remedy for the wrongful death of an unborn child, but 25 of those states permit it only if the pregnancy was viable, meaning the child would have been able to survive outside the mother’s womb with medical help, according to a House bill analysis. Viability is generally estimated to be at about 24 weeks.
The Florida legislation, sponsored by Sen. Erin Grall, R-Vero Beach, and Rep. Jenna Persons-Mulicka, R-Fort Myers, could allow for lawsuits regardless of the age of the fetus.
Though the legislation does not have anything explicitly to do with abortion, some Democrats are fearful people could use it to levy charges against doctors, health care providers and others who perform abortions or handle women’s miscarriages.
Florida law specifies that criminal prosecution over the death of a fetus is not permitted of any person participating in a consensual abortion, of anyone providing medical treatment to a pregnant woman or her unborn child, or against the woman herself.
The House bill states that the mother of the child could not be sued, but it contains no such protections for doctors.
Persons-Mulicka said negligence would still need to be established to make a wrongful death claim. Abortion opponents say the bill is a step toward recognizing fetuses as people.
“House Bill 651 is a good step in the right direction recognizing that unborn children are persons like you and me and should be entitled to that recognition under Florida law,” said Andrew Shirvell, the executive director of Florida Voice for the Unborn.
But Persons-Mulicka said during a committee hearing Thursday that the bill “has nothing to do with abortion.” She noted that the word “abortion” is not in the legislation. She said the bill “is about the value of the life of a child to its parents.”
Still, some have questioned whether the bill is meant to help further restrict a woman’s ability to control her pregnancy. Sen. Tina Polsky, D-Boca Raton, questioned the bill in part because of “the source of where it came from.” Grall and Persons-Mulicka sponsored both Florida’s current 15-week abortion ban and the six-week abortion ban that could take effect depending on a Florida Supreme Court case.
Rep. Ashley Gantt, D-Miami, raised concerns during a committee hearing last week that anti-abortion advocacy groups could seek out men whose partners have had abortions and sue abortion providers for wrongful death.
Persons-Mulicka stressed that the bill is a chance for parents to get some sort of compensation if their child dies due to someone else’s negligence or wrongful act. She talked about her fears when she was pregnant about losing her child in an accident.
In 2022, the U.S. Supreme Court overturned Roe v. Wade, which created federal protection for abortion. But experts say the anti-abortion fight is not over.
Future battles could deal with the idea of ensuring that fetuses have more rights, said Mary Ziegler, an expert on reproductive law at the University of California, Davis. There have been several unsuccessful attempts over the years to pass a nationwide amendment to assure fetuses a right to life from the moment of conception.
Ziegler said most laws expanding the rights of fetuses do not directly mention abortion, but act as a way to work the idea into law and ultimately further anti-abortion efforts.
Ziegler said if laws on the books indicate a fetus has the rights of any other person, it could make any constitutional conclusion to the contrary seem nonsensical — giving anti-abortion groups a chance to go to court and challenge abortion access.
The Supreme Court in 2022 declined to take up a dispute out of Rhode Island about whether or not fetuses are given constitutional protections, and the Supreme Court declined to directly address the rights of fetuses in its decision that overturned Roe v. Wade.
“Basically, the logic is, if a fetus is a person you can’t treat a person any differently under your homicide laws than any other person,” Ziegler said.
The House bill has one more committee to move through before it reaches the floor. The Senate companion has not yet had its first committee hearing.