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Fla. lawyer argues pregnant inmate’s fetus is being illegally detained

The attorney filed a petition that alleges the ‘unborn child’ has committed no crime and should be released

Ultrasound of a 20-week pregnancy. (Ton Koene/VWPics/AP)
5 min

A few months after becoming pregnant, Natalia Harrell sat in a corrections van without air conditioning, according to a recent petition in Florida’s appellate courts. It was more than 100 degrees inside the van, the petition says, and a Miami-Dade County jail employee opened a door only after hearing Harrell banging against the walls.

Harrell, 24, has been jailed without bond since July, when she was accused of fatally shooting another woman and charged with second-degree murder. She was six weeks pregnant at the time and, now eight months along, says the jail staff has endangered the fetus by refusing proper prenatal care and putting her in situations like the incident in the inmate transport van.

The allegations are part of a writ of habeas corpus Harrell’s attorney filed last week in Florida’s Third District Court of Appeal. While habeas corpus filings typically allege that a person is being illegally detained, Harrell’s lawyer has instead argued that it is Harrell’s fetus who is being improperly jailed, as first reported by the Miami Herald.

The petition by attorney William M. Norris says the “unborn child” is innocent and should be discharged from jail so it can receive proper care. That would require Harrell to be released until the child is born, the writ argues.

“An unborn child has rights independent of its mother, even though it’s still in the womb,” Norris told The Washington Post. “The unborn child has been deprived of due process of law in this incarceration. You simply have to have the unborn child as a factor in the equation.”

Norris’s argument, which posits that Harrell’s “unborn child is a person as defined under the Florida Constitution and United States Constitution,” is reminiscent of the concept of fetal personhood, the belief that a fetus is a person entitled to constitutional protections. The notion has picked up traction and shown a surge in relevancy since the Supreme Court overturned Roe v. Wade, which had guaranteed the right to an abortion, in the summer.

On Monday, Florida Attorney General Ashley Moody’s office filed a motion to dismiss Norris’s petition, saying he didn’t provide necessary documentation to support the allegations about inadequate medical treatment. The motion argues that habeas corpus is the wrong legal argument under which to seek relief.

Harrell is accused of killing 28-year-old Gladys Borcela during an argument in an Uber on July 23. She now faces a charge of second-degree murder, which carries a maximum punishment of life in prison. She pleaded not guilty and is scheduled to stand trial in April.

Harrell has been jailed at the Miami-Dade Turner Guilford Knight Correctional Center for nearly seven months, an arrangement the petition argues has left her and her fetus vulnerable.

A Miami-Dade County corrections and rehabilitation spokesman said in a statement to The Post that the department is reviewing its prenatal care services.

“We are committed to ensuring all inmates receive professional, timely medical care and all appropriate treatment,” the spokesman said.

The habeas corpus petition, which was filed Thursday, claims detention center employees have failed and refused to provide medical care or transport Harrell to scheduled medical appointments. She hasn’t seen an obstetrician-gynecologist since October, according to the petition.

Employees have failed to provide Harrell vitamins, liquids and nutritional food that physicians advised would assist her fetus’s development, the writ says.

“Absent immediate release of UNBORN CHILD from the custody of Respondents,” the habeas corpus states, “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.”

On Tuesday, Norris filed a response to the state’s motion to dismiss the petition, reasserting that the fetus is a person and that it has no other legal relief because it is not charged with any crime and thus has no ongoing court cases under which to file claims.

Norris told The Post he’ll continue to fight for the fetus’s freedom.

Pregnant woman given HOV ticket argues fetus is passenger, post-Roe

He’s not the first person to invoke the concept of habeas corpus in relation to pregnant defendants. In 2018, Brazil’s Supreme Court ruled that all pregnant defendants should be granted habeas corpus and allowed to await trial at home.

Norris argued that even if the fetus doesn’t know it, Harrell’s is entitled to constitutional rights. The fetus has developed eyes and arms and could be born in the next month, the writ says. Without proper care, though, Norris said he fears the fetus will be harmed before or during childbirth.

“The unborn child is incarcerated without any consideration of its rights at all,” Norris said. “Our interest is in the health of the unborn child, and at this point, it’s a crapshoot. We don’t know what the health of the unborn child is at this point because months have passed with no prenatal care.”