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Florida court dismisses pregnant inmate’s petition to be released over fetus’ being ‘deprived of liberty’

A judge called the wrongful incarceration argument “illogical” and “nothing more than an attempt for the mother to leverage her unborn child as a basis to be released from lawful detention.”

A Florida court has dismissed an 8-months-pregnant inmate's emergency petition to be released from custody based on the claim that her fetus has been denied adequate medical care, in a case that raises questions about how such arguments could be interpreted in court as anti-abortion activists seek to give legal rights to fetuses.

The 3rd District Court of Appeal dismissed the petition without prejudice to be decided in circuit court, arguing, in part, that it is unclear whether the fetus of Natalia Harrell, 24, has the right to file the petition in the first place, and that its unborn status makes it too difficult to determine the facts in the case.

"Among other things, we do not believe we can properly resolve whether the unborn child has the standing to file the petition before us given the inadequate record in this matter," the Friday opinion said.

The initial request for release

The initial petition, filed Feb. 16 in Florida’s 3rd District Court of Appeal, demanded that the fetus be released from the Miami-Dade Corrections and Rehabilitation Department, arguing that jail officials have not provided adequate prenatal care.

Harrell's filing argued that officials failed or refused to bring the fetus to the attending OB-GYN physician at Jackson Hospital, claiming the last visit Harrell had was in October. The petition also argued that Harrell has not received prescribed vitamins and nutritional drinks during the course of her pregnancy.

It also alleged that Harrell and the fetus were kept in a cellblock with inmates who were housed there after fighting or breaking rules.

"Absent immediate release ... UNBORN CHILD will be likely brought into this world on the concrete floor of the prison cell, without the aid of qualified medical physicians and paramedics, and in the presence of violent criminals," the initial filing said.

In response, the Corrections and Rehabilitation Department and its director, James Reyes, argued that the petition should be dismissed, claiming that Harrell’s and the fetus’s care are a priority for the department and pointing to the fact that she had gained more than 30 pounds while in custody due to adequate nutrition.

Reyes’ response also claimed that Harrell “has been taken to at least four obstetrician appointments outside of the jail and, notably, refused to attend a fifth,” and that she refused to take prenatal vitamins several times.

Reyes also claimed in his filing that Harrell will be transferred to the jail infirmary when her pregnancy reaches 36 weeks, at which point “she will receive a heightened level of care, with nurses monitoring her 24 hours a day, seven days a week for the duration of her pregnancy.” When she is ready to go into labor, she will be transported to Jackson Memorial Hospital to give birth, the filing said.

Harrell is accused of fatally shooting a 28-year-old woman, Gladys Yvette Borcela, while they were in an Uber. She was arrested on a second-degree murder charge last July, charged in August and has been ordered to be held without bond, according to court documents.

Harrell pleaded not guilty to the charge on Dec. 6, court records show. Her trial is scheduled to begin April 18.

In a motion filed last month, Harrell said she feared for her life when she shot the victim and that she would seek to have the case dismissed under Florida’s so-called stand your ground law, which allows people to claim immunity from legal action by forcing prosecutors to prove the person was unjustified in using force.

'The unborn child has received absolutely no due process'

Attorney William Norris, who filed the petition on behalf of the fetus after he was hired by the father, could not immediately be reached for comment Tuesday.

He previously told NBC News that Harrell's “unborn child” is a person with constitutional rights.

“Once you define an unborn child as a person, then the unborn child acquires constitutional rights that apply to any person,” he said. “And specifically, in this case, that’s the right not to be deprived of liberty without due process of the law. And in this case, the unborn child has received absolutely no due process at all.”

The argument over when a fetus acquires legal rights has been at the center of debates about abortion even before the Supreme Court ruled last June in Dobbs v. Jackson Women’s Health Organization, the case that overruled the constitutional right to abortion established in Roe v. Wade.

More recently, anti-abortion lawmakers have sought to push so-called fetal personhood laws, which seek to give fetuses legal rights in unconventional ways. In Virginia and Texas, for example, bills have been proposed to treat a pregnant person’s fetus as a passenger in a car, allowing the driver to use the carpool lane on highways.

Abortion-rights activists argue that such laws serve to further restrict abortion access and could affect stem cell research and access to in vitro fertilization.

The Dobbs ruling has also paved the way for cases like Harrell’s to be considered in court, attorney and legal analyst Kendall Coffey, who is not connected to this case, told NBC Miami.

“A woman’s right to an abortion has been erased from the U.S. Constitution; What we’re beginning to look at more closely is, what are the rights of an unborn child and at what point do they begin to arrive?” Coffey told the station.

Anti-abortion activists in Florida are trying to put forth a ballot measure to amend the state constitution to recognize fetuses as people, which would fully outlaw abortion in the state. Currently, abortion is legal in Florida up to 15 weeks of pregnancy.

Debate among judges in Harrell case

There was also disagreement among the judges in Harrell's case about what potential rights of the fetus are worth consideration by the court.

In a partially dissenting opinion, Judge Monica Gordo, one of the three judges named in the court's filing to dismiss the case, argued that while she agreed with the majority’s opinion to dismiss to the lower court Harrell's claim regarding inadequate prenatal care, she disagreed that the fetus had a right to argue habeas corpus, or unlawful incarceration.

She called the latter argument “illogical” and “nothing more than an attempt for the mother to leverage her unborn child as a basis to be released from lawful detention.”

"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 wrote. "The mother comes to us as a badly disguised Trojan Horse."

Michael O'Brien, who says he is the child's father, told NBC Miami that he is concerned about his future child's health and well-being.

"This person is unlawfully incarcerated," he said of the fetus.