Renewed laws against abortion have had unusual consequences. Here is one.
Background:
- Habeas Corpus.
- Habeas corpus in the United States.
A Florida appeals court denied an attorney’s attempt to have a woman released from jail ahead of trial by arguing that her fetus was being illegally detained without charge – but the attorney says he plans to continue the legal battle.
Florida’s third district court of appeal dismissed without prejudice a petition for a writ of habeas corpus filed by attorney William M Norris on behalf of the “unborn child” of Natalia Harrell.
The petition argued that the fetus is “a person under the Florida constitution and the United States constitution” and that it therefore should not effectively be detained without charge.
The petition argued that the fetus is “a person under the Florida constitution and the United States constitution” and that it therefore should not effectively be detained without charge.
The ruling, written by judge Thomas Logue last Friday, contains “no opinion on whether such filing is being brought by a party with standing, whether the claims are legally cognizable, whether they have merit, or what remedies, if any, are available”.
Instead, it argued on a technicality that the petition failed to include a factual record of the case – which includes disputed allegations that Harrell has received inadequate prenatal care while in jail – and should be pursued in a lower court.
However, another judge from the panel in the case, Monica Gordo, published a partially dissenting opinion arguing that the court should reject the claim of “unlawful incarceration by the government and find habeas corpus does not lie under these limited and specific circumstances”.
While Gordo agreed that factual disputes about Harrell’s prenatal care needed to be hashed out in a lower court, she argued that the appeals court should rule on the habeas corpus claim, habeas corpus being the common law right for a person being detained 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 for a determination of facts which are undisputed seems odd … I see a significant difference between exercising judicial restraint and punting a legal issue placed squarely before the Court.”
She added: “No more could the government be accused of unlawfully detaining the unborn child in this case than could the mother be guilty of kidnapping over interstate lines if she chose to visit her grandmother in Georgia while eight months pregnant.”
Gordo charged that the case was a “badly-disguised Trojan horse”.
“The argument is nothing more than an attempt for the mother to leverage her unborn child as a basis to be released from lawful detention,” she wrote.
