Fetal Personhood Fight Spurred by Florida Abortion Ballot Ruling

The Florida Supreme Court has primed abortion opponents to seek broad fetal personhood protections, and litigators on both sides of an abortion rights ballot measure say the legal battles over pregnancy termination have only just begun.

Proponents of fetal personhood—the concept that law protects fetuses to the same extent it protects children once born—received a jolt of energy Monday in a mixed set of decisions from the state high court. The justices on one hand rejected challenges to Florida’s 15-week and six-week abortion bans. While a separate ruling allowed an abortion rights amendment to go before voters in November, a majority of the court indicated they could find fetal personhood rights inside of the state’s existing constitutional provisions.

“We have an open door to go back and establish personhood,” if more than 60% of Floridians approve of the abortion rights amendment, Mat Staver, chairman of Florida-based anti-abortion group Liberty Counsel, told Bloomberg Law. “The Florida Supreme Court isn’t out of the picture yet.”

Abortion rights proponents celebrated the ballot decision as a “win” for ballot movements, but they read the underlying opinions with foreboding, said Aadika Singh, senior staff attorney for the Public Rights Project and lawyer for a group of Florida Republican officials that pushed for the court to approve the ballot language.

“The Florida Supreme Court has said this is definitely not the end of this,” said Singh.

Depending on how the courts handle that litigation, Florida could see an unprecedented legal conflict where the right to abortion, and a right to fetal personhood, could be found in the same state constitution, with judges deciding which rights take priority, Singh said.

“This is the next front,” she said,"and the next line of attack.”

‘Unsettled’

The question of personhood blindsided attorneys arguing before the justices in February.

The issue wasn’t in the briefs submitted by the ballot measure campaign, the state’s Republican attorney general or myriad friend-of-the-court filings. When Chief Justice Carlos G. Muñiz asked whether the state constitution’s guarantee to basic rights including “to enjoy and defend life and liberty” to “natural persons” meant those rights also belonged to fetuses, the attorneys said they didn’t have a position.

Since then conservative lawyers have leaned into the idea, asking the justices to consider post-argument supplemental briefs and urging the court to lean on reasoning in a February Alabama Supreme Court opinion that boosted the national fetal personhood movement by upholding criminal penalties against destruction of frozen embryos.

On Monday Muñiz advanced the movement in Florida. He joined two other conservative justices and the all-Republican court’s frequent dissenter Jorge Labarga in a ruling allowing the ballot measure to go forward, but flagging that the state could reconsider thirty years of assumptions that fetuses aren’t given equal rights with the born and calling the law “unsettled.”

The opinion alarmed both local and national abortion rights groups.

“This signal illustrates the profound need for broad and expansive strategies that keep government out of decision-making in all points in pregnancy,” Aisha Mills, Interim President of the National Institute for Reproductive Health, said in a statement.

Unprecedented Conflict

Other dissenting justices were more direct than Muñiz, highlighting potential pathways to challenge the abortion amendment if it carries the November vote.

A “voter may think this amendment results in settling this issue once and for all. It does not,” Justice Jamie R. Grosshans said in her dissent. “Instead, this amendment returns abortion issues back to the courts to interpret scope, boundary, definitions, and policy, effectively removing it from the people and their elected representatives.”

The stakes extend beyond Florida. More than 9,300 people traveled from out-of-state to get abortions in Florida in 2023, according to statistics from the pro abortion rights Guttmacher Institute. With the goal of banning abortion by “any means necessary,” it “makes complete sense that anti-abortion groups are already looking for ways to undermine the democratic process before Florida voters have even gotten a chance to weigh in,” Candace Gibson, the institute’s director of state policy, said in a statement.

Staver believes that Florida could be an example for how anti-abortion litigators can advance arguments he’d like to see emphasized around the country. For example: that existing laws criminalizing the harm of fetuses—such as double-homicide for the killing of pregnant mothers—and broad grants of rights for all citizens that nearly all states contain in their constitutions can be used to support fetal personhood.

Since that broad grant of rights appeared first in the Florida Constitution, he believes it should take precedent over the abortion rights ballot measure if it’s enacted.

“These laws, particularly the constitutional provision, that go back many years should actually carry the day,” he said. “You can’t say person means one thing in this provision and one thing in another.”

The case is Advisory Opinion to the Attorney General re: Limiting Government Interference with Abortion, Fla., No. SC2023-1392, 4/1/24.