Republican lawmakers in Florida are pushing a bill that would revise the state’s wrongful death law, allowing individuals to sue — and recover monetary damages — over the loss of an “unborn child.”
Critics say the legislation would allow individuals to bring wrongful death lawsuits against doctors who provide abortion care and even friends or relatives who help a woman obtain an abortion — something men have already tried doing in several states that have banned abortion or passed laws granting “personhood” rights to fetuses, embryos, and fertilized eggs.
In Alabama and Arizona, men have sued their ex-partners’ doctors for wrongful death after the doctors provided legal abortions to those women. (The Alabama lawsuit was ultimately dismissed; the Arizona case is ongoing.) In Texas, a man named Marcus Silva is currently suing three of his ex-wife’s friends for wrongful death, alleging they helped her obtain pills to terminate her unwanted pregnancy. Silva is seeking $1 million in damages from each woman. In text messages introduced as part of that case, he allegedly promised to drop the lawsuit if his ex-wife had sex with him.
The Florida bill — entitled, “Civil Liability for the Wrongful Death of an Unborn Child” — was pre-filed ahead of the 2024 legislative session by state Sen. Erin Grall (R) and state Rep. Jenna Persons-Mulicka (R), the same lawmakers who sponsored Florida’s six-week abortion ban last year.
If passed, the bill would add “the parents of an unborn child” to the list of people who can recover damages “for mental pain and suffering” and “for medical or funeral expenses” under the state’s existing wrongful death law, which is part of its negligence statute.
The anti-abortion group Florida Family Action has already lobbied on the legislation, according to the state legislature’s website.
In an email to Rolling Stone, Grall insisted that the bill is “unrelated to abortion.” Instead, she said that it would simply update the state’s negligence statute “to include in the definition of ‘survivor’ parents of an unborn child, so that when an individual’s negligence results in the death of an unborn child, the parents can rightly sue for damages.” (Persons-Mulicka did not respond to an inquiry from Rolling Stone.)
Advocates and supporters of reproductive rights argue the bill is an attempt to insert language in the legal code that recognizes fertilized eggs as persons with rights under Florida law.
Dana Sussman, deputy executive director of the advocacy group Pregnancy Justice, cautions that just because this change is being proposed to the state’s negligence statute, that would not prevent it from being used against abortion providers. In the Arizona case, for instance, the man is suing the doctor who provided his ex’s abortion, arguing that the provider negligently failed to obtain her “informed consent.” (The patient herself, meanwhile, has repeatedly insisted that she actively sought out and fully consented to the abortion.)
“There’s two issues here: One is the slippery slope that we’ve seen play out that normalizes the idea of an unborn child, or fetus, or fertilized egg, or embryo as an entity for which you can attach rights,” Sussman explains. The second issue is the bill would create an opportunity for another person — the other partner — to make an argument that he has the legal standing to sue over a pregnancy outcome. “It just takes someone who’s willing to try that legal theory out — and as we’ve seen, judges accept rogue arguments,” Sussman says.
The Florida bill, state Rep. Anna Eskamani (D) said in a statement released shortly after it appeared on the docket, “will open up the door for abusers to go after their partners who seek abortion care, will push more doctors out of their professions, and create a legal framework that will absolutely be used to target pregnant people and their loved ones.”
A similar proposal was first floated last year — by Democrats — as part of an ineffectual effort to delay a fast-tracked Republican bill that will make it harder for consumers to file lawsuits. The hope, apparently, was that Republicans would not be able to resist voting in favor of adding such language to the wrongful death law. If they had supported the amendment, it could have sent the bill back to committee, slowing its progress. “The idea failed miserably,” says Eskamani, who opposed the amendment at the time.
The tort reform bill ultimately passed, without Democrats’ poison-pill amendment. Now, Republicans — who hold a supermajority in the Florida legislature — are following through on the idea, and pushing to add rights for the parents of an “unborn child” to the wrongful death law. The state’s 2024 legislative session begins next week.
“It’s a really crazy bill,” says Michelle Shindano, deputy director of government relations at Planned Parenthood of Southwest and Central Florida. “It really opens the door for harassment from partners — even if the partner was originally in agreement with the abortion. It puts survivors of domestic abuse in a super vulnerable position.”
As for Grall’s insistence that the bill is “unrelated” to abortion, Eskamani says, “We just don’t believe her. It is clearly connected to punishing abortion providers, making it much more difficult to provide abortion, creating a litigious environment for abortion providers, potentially jacking up medical malpractice costs for abortion providers. There are a lot of ripple effect dynamics here.”
Abortion is currently legal for up to 15 weeks in Florida, though Gov. Ron DeSantis (R) signed a bill last year that would ban the practice at 6 weeks gestation. That law is on hold while the Florida Supreme Court considers a challenge to the 15-week ban.
For many years, that court was seen as a liberal backstop against the state’s conservative governors and legislature. That is no longer the case, now that DeSantis has appointed five of its seven justices.
Earlier this week, the Florida Supreme Court announced it will hear arguments over ballot language for a proposed constitutional amendment that would enshrine the right to abortion in the state. Advocates hope to put that amendment before Florida voters in November.
