Recently, a case was brought to the Florida courts on behalf of a pregnant woman who is currently incarcerated on the charge of second-degree murder. What makes this particular case so interesting is that it was a request for a writ of habeas corpus on behalf of the baby. The argument made by the attorney was that since the baby in utero had not been charged with any crime, the government was illegally detaining the baby. What’s more, the attorney asserted that the incarcerated woman was not receiving adequate prenatal care and that should the woman give birth (she is currently about eight months pregnant), it could take place on a cold cell floor in the presence of hardened criminals. All of this hinges, the attorney argued, on the personhood of the baby. The writ was denied by an appeals court in Florida on a technicality (the failure to include a factual record in the case, including evidence for the accusation of a lack of care), who remanded the case back to the lower courts to determine.
As you might expect, this case has raised the hackles of the pro-death proponents (and yes, I have chosen my descriptor carefully here). Mary Ziegler, a professor of law who specializes in abortion law at the University of California – Davis, said that if the courts find in favor of granting habeas corpus to the baby, it would open a “Pandora’s box” by recognizing “fetal personhood.” “It has the potential to establish that abortion is always illegal and potentially to expose women to punishment or make it a violation of the Florida constitution to perform an abortion,” she said. “It would mean that you can’t imprison people who are pregnant, no matter what crime” (“Lawyer argues fetus of jailed pregnant woman is being illegally detained,” The Guardian, https://www.theguardian.com/us-news/2023/feb/23/florida-lawyer-jailed-pregnant-woman-fetal-personhood-reproductive-rights).
Professor Ziegler is partially correct. When Roe v. Wade was overturned by the Dobbs decision last year, it became clear that there would be many, many cases brought to the courts for clarification. In the November elections, we saw the defeat of pro-life initiatives and the success of pro-death ones, including in our own state of Michigan. Some states now have laws that effectively prohibit abortion on demand, while others have legalized it right to the point of birth. The question of whether the unborn baby is a person from a legal standpoint is yet to be determined, but determined it must be. If the answer is that an in-utero baby is indeed a person, then yes, abortion on demand will be “a violation of the Florida [and the US] constitution.” It does not necessarily mean that it will “expose women to punishment” (there is certainly the ability to create the law to avoid that in most cases). It might mean that pregnant women will be kept under house arrest while awaiting trial (interestingly, the high court in Brazil set this standard for that nation in 2018).
Ultimately, as Christians, we recognize the sanctity of life in the womb, a place where it should be most protected and nurtured. This means that when we wrestle with these questions as a society, we must speak biblical truth in a clear, unequivocal, and compassionate manner. Dobbs did not end the debate on abortion; it has moved it into new arenas, and we must be ready to defend life there, as well.
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