An ‘unborn child’ bill is advancing in the Florida House

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physician with patient
Doctor with patient by Drazen Zigic via iStock for WMNF News.

By Dara Kam ©2024 The News Service of Florida

TALLAHASSEE — A House committee on Wednesday approved a controversial measure that would allow parents to file civil lawsuits seeking damages for the wrongful death of an “unborn child,” with critics of the bill saying it is too broad and could shrink the number of doctors who deliver babies in Florida.

The proposal, now ready to go to the full House, would add “unborn child” to a law that allows family members to seek damages when a person’s death is caused by such things as wrongful acts or negligence.

The bill (HB 651) has drawn intense pushback from abortion-rights advocates, who argue the proposed changes could put abortion providers and people who help women obtain abortions at risk of being sued.

The House and Senate bill sponsors also led efforts last year to pass a law that seeks to ban abortions after six weeks of pregnancy. But the sponsors maintain that this year’s bill is not abortion-related.

“We are talking about human beings. We are talking about the human experience, the experience of the parents who have suffered a real loss. We are saying they have the right to seek recovery in our court system,” House sponsor Jenna Persons-Mulicka, R-Fort Myers, said before the House Judiciary Committee approved the bill Wednesday.

But Rep. Yvonne Hinson, D-Gainesville, said the proposal would have a chilling effect on doctors and women who might want abortions.

“The most dangerous 60 days in the state of Florida is the legislative session. We are creating fear in the hearts and minds of the people in Florida. I am so tired of it. If you really want to stop abortions, get a vasectomy,” she said.

Mark Delegal, a lobbyist who represents The Doctors Company, said his client is the largest insurer of physicians in the state and the nation. Florida already has the highest medical malpractice insurance rates for obstetricians and gynecologists in the country, according to Delegal. Obstetricians in Miami pay about $226,000 a year in premiums, compared to $49,000 in Los Angeles, he said.

Also, Delegal argued that the proposed changes would worsen a shortage of OB/GYNs in the state.

“We have concerns and oppose this bill because it expands liability for health care providers, and that’s why we object to it,” he said.

The proposal has come as the Florida Supreme Court weighs whether a proposed constitutional amendment aimed at protecting abortion rights meets legal requirements to go before voters in November. The court has until April 1 to decide on the issue.

Supporters launched the ballot initiative after the Republican-controlled Legislature and Gov. Ron DeSantis approved the six-week abortion bill. The six-week ban would go into effect if the Florida Supreme Court upholds a 2022 law that restricts abortions after 15 weeks.

The Judiciary Committee voted 15-4 along party lines Wednesday to approve the bill about wrongful-death lawsuits. Under the bill, mothers could not be sued. But opponents contended the measure would open the door for rapists or men who have one-night-stands with women to seek damages against health care providers.

“The latest Republican bill attacking abortion in Florida is extremely dangerous and would have major legal consequences,” Florida Democratic Party Chair Nikki Fried said in a statement. “The potential misuses are staggering — purposefully broad language could help abusers weaponize the judicial system to harass and punish their pregnant partners with costly civil lawsuits.”

Florida is one of a handful of states that do not allow civil damages for the loss of an unborn child, Persons-Mulicka argued. Under a change adopted by the committee Wednesday, the bill would define an unborn child as “a member of the species Homo sapiens, at any stage of development, who is carried in the womb.”

The majority of other states with wrongful-death laws that cover pregnancy loss, however, only allow recovery after the fetus has reached viability, according to a legislative analysis of the bill.

The change was added to the House bill after the Alabama Supreme Court on Friday ruled that frozen embryos created through in vitro fertilization are considered children.

Rep. Dotie Joseph, a North Miami Democrat who is a lawyer, said the Florida bill could have a “chilling effect” for people seeking in vitro fertilization. Joseph also pointed to a 2022 U.S. Supreme Court ruling that overturned the landmark Roe v. Wade abortion decision and left abortion rights up to states.

“What is the impact on actual human beings? We are seeing so many negative impacts on real-life women and the consequences of these foolhardy, partisan-driven policies,” Joseph said. “There is a disconnect between the intention and the impact, and the impact is overall negative.”

Some Republicans also expressed concerns about the bill.

Rep. Paula Stark, R-St. Cloud, called the measure “way too broad.” While Stark supported the bill Wednesday, she said she would vote against it on the House floor unless it was more restrictive.

But Persons-Mulicka pushed back.

“You know that I’m not afraid to shy away from a discussion about abortion or the value of life or the overarching theme of personhood,” she said. “But none of that is what this bill is about. It’s very narrow in nature. It’s about the mother. It’s about the father. It’s about the value of the life of an unborn child to them, and it’s about a real loss … that was caused by the wrongdoing of another person.”

Florida criminal law includes penalties for the illegal killing of an unborn child, but the law includes exceptions for abortion. Democrats have urged Persons-Mulicka to amend her bill to mirror the criminal law.

Committee Chairman Tommy Gregory, R-Lakewood Ranch, said people who commit abortion-related wrongdoing should be held responsible.

“If you commit a negligent act or you commit a wrongful act, you should be liable. We are protecting the very most vulnerable and those that should be able to recover, under those situations,” he said.

But Kara Gross, legislative director and senior policy counsel for the ACLU of Florida, argued that the bill “is not about helping grieving families” for pregnancy loss.

“This deceptive bill is about making it even harder for Floridians to access the abortion care that they need,” she said.

Persons-Mulicka, however, accused opponents of “misplaced fear.”

“I agree there’s been a lot of talk of fear, but that’s fear-mongering,” she said. “What liability are they trying to escape? … We’re talking about wrongdoing and harm and we’re talking about human beings.”

A similar Senate bill, sponsored by Sen. Erin Grall, R-Vero Beach, needs to clear one more committee before it can go to the full Senate.

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