Does being in jail violate a fetus’s legal rights? Florida court says no, sort of

When Natalia Harrell was jailed in Miami last year, she was pregnant. What happened next could set precedent in a post-Roe legal landscape: An attorney for Harrell’s fetus asked the court to release the unborn child from jail because being held without charge violated his rights.

The attorney, William M. Norris, argued in Florida’s Third District Court of Appeal that an “unborn child is a person as defined under the Florida Constitution and United States Constitution.” Norris filed a writ of habeas corpus, arguing the fetus’ incarceration was a violation of his rights.

He also argued that Harrell, who was arrested last year on a second-degree murder charge, hasn’t received proper prenatal care while in jail. Miami-Dade Corrections and Rehabilitation representatives dispute that claim.

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Judges dismissed the fetus’ plea, citing an inability to determine the facts in the case. They declined to rule on whether a fetus can legally petition the court or even whether a fetus can be unlawfully imprisoned: “Because the petition is filed without a record to establish a factual basis and because consideration of this petition will be factually intensive, we follow Supreme Court precedent and exercise our discretion to dismiss the petition,” read the opinion.

Norris told the Miami Herald the opinion was “a highbrow way of saying we don’t know what to do with this hot potato.”

The fetus’s next legal recourse would be to pursue the case in a lower or higher court, including the Florida Supreme Court. A ruling in favor of the fetus at the state supreme court level could set legal precedent that fetuses are legally people with rights – a potentially explosive outcome with far-reaching implications.

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Since the overturning of Roe v. Wade last year and a raft of subsequent state laws banning abortion, cases have popped up around the country testing the legality of personhood for a fetus. U.S. Senator Marco Rubio of Florida introduced legislation last year that would allow pregnant people to claim a child tax credit for their unborn children. A Texas woman who was 34 weeks pregnant tried to get out of a traffic ticket she received for driving alone in a high-occupancy vehicle (HOV) lane, by arguing her unborn baby was a second person in her vehicle.

Harrell is scheduled to stand trial in April for the killing of Gladys Borcela during an argument in an Uber last July. She’s pleaded not guilty to a second-degree murder charge, with a maximum punishment of life in prison.

Norris told The Washington Post that he would continue to fight for the fetus’s freedom.