Florida Supreme Court signals readiness to rule for pre-born personhood

In the near future, all human beings—including pre-born children—may be protected by the Florida Constitution. In a pair of abortion decisions handed down Monday, the Florida Supreme Court ruled that there is no “right to abortion” in the state constitution and allowed an abortion referendum to appear on the November ballot. While abortion advocates cheered the latter decision, the court's opinions reveal deep reservations about abortion. Indeed, despite narrowly allowing the referendum to move forward by a 4-3 vote, a supermajority of justices signaled their view that pre-born children are “persons” entitled to the right to life under the Florida Constitution.

Article I section 2 of the Florida Constitution says that “[a]ll natural persons … are equal before the law and have inalienable rights,” including “the right to enjoy and defend life.” When those words were added to the state constitution in 1968, the term “natural person” simply meant any living human being. The predecessor provision—which since 1868 had referred to “all men”—was likewise used in an inclusive sense and designed to guarantee equal rights to every living member of the human species.

That historical context is important. As the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision explains, abortion was historically unlawful at common law during all stages of pregnancy, and the pre-born child was considered a legal person whenever it would be to his benefit. State high courts in the years leading up to 1868 declared that the pre-born child throughout pregnancy “is a person” and hence, under “civil and common law,” “to all intents and purposes a child, as much as if born.” By the end of 1868, three-quarters of the states—including Florida—had supplemented the common law with statutory bans against abortion at all stages.  

Those historic legal protections are consistent with today’s medical and scientific consensus that each human life begins at fertilization. As embryology textbooks and a recent survey of biologists confirm, the life of a new living and distinct human being comes into existence at fertilization. Shouldn't human rights begin when human life begins?

At oral argument in both of the recent Florida cases, Chief Justice Carlos Muñiz raised the personhood question, first suggesting that legalized abortion “essentially take[s] a whole class of human beings and put[s] them outside the protection of the law,” and then asking whether "the term 'natural person'” in the Florida Constitution “as a matter of ordinary meaning, include[s] the unborn." Following oral argument in the referendum case, parties submitted supplemental legal authority to explain why pre-born children are “natural persons.”

Despite greenlighting the referendum, six of the nine justices signed opinions foreshadowing a future personhood ruling. Even the unsigned majority opinion acknowledged that whether pre-born children are "persons" protected by the Florida Constitution is an "unsettled" legal question. Though concurring in the majority decision, Chief Justice Muñiz (joined by Justices Charles Canady and John Couriel) criticized the proposed amendment for barring lawmakers from "protect[ing] an entire class of human beings from private harm" and suggested that the amendment would violate the constitutionally protected "inalienable rights" of pre-born children.  

Justice Renatha Francis wrote in dissent that “the exercise of a ‘right’ to an abortion literally results in a devastating infringement on the right of another person: the right to live.” She urged recognition of “the unborn’s competing right to life and the State’s moral duty to protect that life.”  Justice Jamie Grosshans, joined by Justice Meredith Sasso in dissent, likewise worried that “the breadth of this amendment would likely impact existing constitutional provisions” including the right-to-life guarantee.

The Florida Supreme Court seems poised to conclude in a future case that laws allowing homicide when the victim is a pre-born child violate the Florida Constitution’s equal-rights guarantee. The opinions also raise questions about what would happen if the referendum passes in November. In that case, the abortion amendment would present an apparent conflict with the existing guarantee securing the inalienable right to life. Whatever happens, the Florida Supreme Court would be on solid footing to recognize pre-born children for what they are: Members of the human family entitled to the equal protection of the laws.

Josh Craddock is a legal scholar with the James Wilson Institute and the former editor-in-chief of the Harvard Journal of Law & Public Policy.