Now that Alabama’s supreme court on Friday took the remarkable step of declaring that frozen embryos are “children,” a conservative group is trying to derail an expected 2024 ballot initiative in Florida that would enshrine abortion rights in that Sunshine State’s constitution.
On Monday, a religious civil rights law firm alerted the Florida Supreme Court to the neighboring state’s recent ruling in an attempt to have the high court block the amendment from reaching voters as it currently stands.
Earlier this month, the conservative-leaning Florida court heard arguments on the proposed constitutional amendment. It will decide by April 1 whether to approve the language in the measure, which states, “No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.”
Anti-abortion groups and the state’s own attorney general have asked the Florida high court to stop the proposal, with AG Ashley Moody submitting a court filing that decries the ballot question as a devious ploy to trick voters into creating the “near-equivalent of abortion on
demand in the State of Florida.”
Among the groups opposing the abortion rights measure is the attorney Mathew D. Staver and his law firm, Liberty Counsel, who take credit for drafting the notorious Florida Amendment 2 that voters approved in 2008 strictly defining marriage as solely between a man and a woman—one that was struck down by a federal court and ultimately led to the landmark U.S. Supreme Court decision guaranteeing the right to gay marriage in 2015.
Although Liberty Counsel already presented arguments to the Florida Supreme Court in the current abortion rights ballot initiative, it’s now trying to bolster its cause by pointing to the Alabama ruling to make the case that personhood status should actually be more expansive than it already is.
The Alabama Supreme Court considered whether three couples could sue for wrongful death after their frozen embryos were destroyed, and it decided the matter by asserting that the state’s “Wrongful Death of a Minor Act applies to all unborn children, regardless of their location,” including those in a “cryogenic nursery.” The 7-2 decision is among the first to tackle the personhood status of what it called “extrauterine children—that is, unborn children
who are located outside of a biological uterus at the time they are killed.”
The decision is the latest move in conservatives’ ongoing legal battle across the country to severely restrict abortion rights ever since the Supreme Court overturned Roe v. Wade in 2022.
A 2022 legal paper by Penn State law professor Dara E. Purvis noted that “general personhood statutes are typically more concerned with embryos and fetuses in utero, and only implicitly potentially apply to stored embryos.” Arizona and Louisiana are the rare exceptions, she noted.
The Florida ballot initiative’s attempt to secure abortion rights “before viability,” however, is setting up a battle on what viability means—and that’s where Alabama’s court decision comes in. In court papers, the Florida AG is arguing that “‘viable’ has a broader understanding—’capable of living,’ whether or not dependent on another person.” If Florida’s supreme court is receptive to the argument that personhood status should also extend to embryos, this could give conservative groups more ammunition to restrict abortion rights elsewhere.
