Florida unlawfully detaining unborn child by jailing its mother, lawsuit argues

File - General view of the Turner Guilford-Knight Correctional Center in Miami. Vallery Jean/Getty Images

An unusual lawsuit in Florida is raising questions about personhood in a post-Roe world as the unborn child of a pregnant woman charged with second-degree murder seeks to be released from jail.

An emergency writ of habeas corpus was filed on behalf of the fetus in Florida’s third district court of appeals on Feb. 16. In it, lawyer William M. Norris argues the fetus “is a person under the Florida constitution and the United States constitution,” and therefore has the right to due process.

“UNBORN CHILD has not been charged with any crime by the State,” the court filing first obtained by the Miami Herald reads. “Further, the State has placed the UNBORN CHILD in such inherently dangerous environment by placing the UNBORN CHILD in close proximity to violent criminal offenders.”

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The child’s mother, Natalia Harrell, 24, was arrested in July last year while six weeks pregnant. She has been charged with shooting and killing Gladys Yvette Borcela during an argument in an Uber in downtown Miami.

Harrell has pleaded not guilty to the charge and is being held without bail. She and her unborn child have experienced “draconian confinement” that is negatively impacting the fetus’ health, the filing argues.

Norris writes that the fetus has been deprived of adequate prenatal care, including vitamins and trips to specialists, and was the victim of negligence when Harrell was allegedly left in a corrections transport van for an extended period with an inside temperature exceeding 37 degrees celsius.

The state of Florida is urging the court to dismiss the petition and denied that Harrell had been mistreated, the Miami Herald reported.

Miami-Dade Corrections said it would conduct a full review of its health services following the allegations.

Still, the issue of whether Harrell’s unborn child has had its constitutional personhood rights infringed upon remains open.

“An unborn child is a person,” Norris told NBC News. “The person has constitutional rights, and one of them is the right not to be deprived of liberty without due process of law.”

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“The court should … let the mother go into an environment that protects the rights of the child,” he added.

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The fallout of Roe V. Wade: Canada’s role in safeguarding access to abortion

When the U.S. Supreme court made the landmark decision to strike down the Roe v. Wade precedent guaranteeing abortion access in the country, a wave of legal challenges followed that used the same argument as many anti-abortion activists: a fetus is a person.

Though specific fetal personhood laws have only been passed in Georgia and Arizona, a Texas woman was able to overturn a driving ticket after she drove alone in the “high occupancy vehicle” lane. Except, she wasn’t alone, she successfully argued, because she was pregnant.

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The U.S. Supreme Court has denied fully examining the issue of fetal personhood, after rejecting to review a case that sought to “finally determine whether prenatal life, at any gestational age, enjoys constitutional protection — considering the full and comprehensive history and tradition of our Constitution and law supporting personhood for unborn human beings.”

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