State Sen. Erin Grall (R) and state Rep. Jenna Persons-Mulicka (R) introduced similar bills in the state legislature this month that would allow parents to recover civil damages for the wrongful death of a fetus or “unborn child.” The bills state that a pregnant woman cannot be sued but do not include protections for physicians – leading some advocates to believe that the legislation could be used against doctors providing abortion care and fertility treatments.
The House bill has one more hearing before a floor vote; the Senate version has not yet had a committee hearing. It’s likely the bill will become law given the legislature’s Republican supermajority and proven anti-choice track record. Opponents of the bill are holding out slim hope that the Senate, which can sometimes be a firewall against some of the most extreme policies, stops the bill from getting to Republican Gov. Ron DeSantis’ desk.
Florida Democrats told HuffPost they’re worried the law will be weaponized against abortion providers, OB-GYNs who handle miscarriages and physicians who offer reproductive care such as in vitro fertilization.
“As a woman who had to utilize assisted reproductive technology to have my children, it is frightening for me that there’s a piece of legislation moving through the process that would basically make it untenable to utilize this type of medicine to achieve creating a family,” Florida state Senate Minority Leader Lauren Book (D) told HuffPost. “It’s really, really scary.”
Some anti-abortion activists oppose IVF because they believe a fertilized egg is a person, and they consider discarding fertilized eggs to be murder. IVF is a medical procedure where sperm outside the body fertilizes an egg that’s then implanted into a uterus. Doctors typically implant one fertilized egg at a time and if the patient becomes pregnant, they can choose to discard their other fertilized eggs or freeze them for possible future use.
Persons-Mulicka's bill will likely become law given the legislature’s Republican supermajority and proven anti-choice track record.
Not all fertilized eggs will lead to viable pregnancies so physicians discard some. In some scenarios, physicians implant multiple fertilized eggs into the uterus, which can result in a multiple pregnancy. Some patients may choose a fetal reduction that lowers the number of fetuses, improving their chances of a healthy pregnancy.
The majority of U.S. states have some form of civil action for the wrongful death of a fetus but 25 include a viability statute, meaning parents can only file a wrongful death suit on behalf of a fetus if it was viable or past 24 weeks. Other states abide by what is referred to as a “conception” standard in wrongful death suits for fetuses, which normally include the definition of an “unborn child” to be “in utero” or “carried in the womb.”
The Florida bill has the potential to be particularly insidious because it does not define the gestational age of an “unborn child.”
When state Rep. Ashley Gantt (D) asked during a subcommittee hearing about whether the law may impact IVF, Persons-Mulicka did not rule out the possibility.
“Is an embryo an unborn child? I think that falls outside the scope of this bill, but in terms of this bill you’d have to show a wrongful act, which is intentional or negligence in order to recover,” she said.
After Gantt pressed Persons-Mulicka again on the question of fertility care during the hearing, she added that a person would have to meet a high burden of proof in a scenario where an embryo was terminated.
Persons-Mulicka and Grall did not respond to HuffPost’s requests for comment.
It definitely seems like it’s intended to provide civil rights to fetuses and potentially open up the pathway for there to be civil penalties for abortion providers.Florida state Rep. Anna Eskamani (D)
Many anti-choice organizations are known for weaponizing laws like this one to silence and deter people from getting abortion care. Just the threat of criminalization can discourage people from seeking abortion care, and laws like the one being proposed in Florida could have a similar effect on people looking to undergo fertility treatment to start a family. Even if the pregnant person ends up winning their case, going to court is typically emotionally exhausting and expensive.
Persons-Mulicka has insisted that “this bill has nothing to do with abortion,” but Democrats don’t believe her.
“It definitely seems like it’s intended to provide civil rights to fetuses and potentially open up the pathway for there to be civil penalties for abortion providers,” state Rep. Anna Eskamani (D), who worked at Planned Parenthood for six years before joining the Florida House, told HuffPost.
Gantt introduced an amendment to the bill that would create a carveout for abortion care, but a Republican-majority House subcommittee voted it down.
Florida Democrats expect Republicans to introduce more anti-choice legislation in the coming months, given that a pro-choice amendment to the state constitution is likely to be on the ballot in November. The last hurdle for the abortion rights initiative is set for Feb. 7, when the state Supreme Court will hold a hearing to approve the ballot language.
Eskamani said the threat of a pro-choice amendment is forcing Republicans to be more subtle in their attacks on abortion care.
“As we see our constitutional ballot initiative – that would prohibit political interference with abortion – move forward, we’re gonna see more bills like this because although it doesn’t say abortion, it’s going after abortion,” she said.
Florida has a 15-week abortion ban but the state is stuck in legal limbo. DeSantis signed a six-week abortion ban into law last year, which has not taken effect because Floridians are waiting for the state Supreme Court to rule on a challenge to the current 15-week restriction. The decision is likely to come down soon.