Introduction to the Bill
A new Kansas law and a Florida bill outline policies backed by abortion opponents that critics see as moves toward giving embryos and fetuses the same rights as the women carrying them.
The Kansas Legislature’s Republican supermajorities on Thursday overrode Democratic Gov. Laura Kelly’s veto of a bill to require that child support payments cover embryos and fetuses and to grant an income tax break for a pregnancy or stillbirth. In Florida, lawmakers are advancing a bill that would permit parents to seek civil damages for the wrongful death of an embryo or fetus.
Background and Motivation
Following the U.S. Supreme Court’s overturning of Roe v. Wade, anti-abortion activists across the country are pushing measures to enshrine the rights of fetuses, with the ultimate goal of ending abortion nationwide. Lawmakers pitching the proposals describe them as support for new parents or vulnerable families.
“This bill is about being compassionate to pregnant women,” Kansas Republican state Rep. Susan Humphries said Thursday.
Existing Laws on Fetal Rights
Many States Already Give Fetuses Some Legal Rights
Pregnancy Justice, which advocates for pregnant people, found that as of last year, at least 17 states had laws on the books giving fetuses the rights of people in criminal or civil law. Also, in most states, including Florida and Kansas, a person can face criminal charges for causing the death of a fetus, other than through an abortion.
Georgia and Utah offer income tax breaks for fetuses, and Kansas will soon allow parents to claim an extra dependent child tax deduction on their personal income taxes for the year a child is born and a deduction for a stillbirth.
Specific Provisions of the New Laws
Kansas Law
Also like Georgia, Kansas will start a divorced or single parent’s obligation to pay child support “from the date of conception.” Its new law takes effect July 1.
“It really is common sense, to provide support for women,” said Republican state Sen. Kellie Warren, a supporter of the Kansas measure.
The Texas Senate approved a child support proposal earlier this month, and lawmakers introduced proposals this year in Missouri, Montana, Pennsylvania, and Virginia, according to an Associated Press analysis using the bill-tracking software Plural.
Allowing Wrongful Death Lawsuits to Cover Fetuses
Florida Bill
The bill advancing in Florida would allow parents to file lawsuits over the wrongful death of an embryo or fetus at any stage of pregnancy, and juries could award monetary damages for the wages a fetus would have earned, according to the bill’s sponsor.
The bill has cleared the full House and was approved by its second Senate committee Thursday, though its third and final committee hearing has yet to be scheduled.
Florida is among six states that do not allow lawsuits over the wrongful death of a fetus, according to a legislative analysis. Kansas already has a law like the one Florida is considering.
Expert Analysis and Criticisms
A Well-Defined Playbook
Critics see both the Florida and Kansas proposals as part of an effort to move from allowing states to ban abortion — as the U.S. Supreme Court did in its 2022 Dobbs decision — to outlawing abortion across the nation as a violation of a fetus’ or embryo’s constitutional rights.
Mary Ziegler, a University of California, Davis law professor who’s published six books in the past 10 years on abortion law and the history of U.S. abortion policy, said this year’s Florida measure aligns with a “pretty well-defined and very public playbook” to build a legal framework for a national abortion ban.
“It’s about setting a precedent for recognizing fetal rights in one context being used to recognize fetal rights constitutionally,” she said.
Additional Concerns
Impact on IVF Services and Healthcare Providers
Florida considered a similar wrongful death measure last year, but it failed amid concerns about an Alabama Supreme Court ruling that frozen embryos can be considered children under state law. In vitro fertilization services stopped in Alabama until that state’s governor signed a law to protect them — a step taken in other GOP-controlled states.
Concerns about IVF services still linger among some lawmakers in the Florida state capital of Tallahassee, as well as among doctors and abortion rights advocates.
Democratic state Rep. Allison Tant took to the House floor to debate against the Florida bill, which she says “imperils” the fertility services that made her a mom.
“IVF pregnancies are inherently fragile and risky,” Tant said. “We are going to see lawsuits like we’ve never seen.”
Bipartisan Concerns
Potential for Misuse
Reproductive rights advocates in Florida also worry that wrongful death lawsuits could target health care providers who offer abortions, family and friends who help a loved one obtain an abortion, or fertility clinics whose clients experience a miscarriage.
In Texas, a man filed a wrongful death lawsuit against three women he said helped his now-ex-wife obtain medication for an abortion, though he later settled the case.
Florida’s proposal specifies that it does not authorize a cause of action against a mother for the death of her unborn child, or against a health care worker if they provided “lawful” medical care.
Still, Republican Sen. Tom Leek voted against the bill in committee after raising concerns about the measure potentially “being weaponized against women who lose a child.”
The fear of legal action could push more OBGYNs to avoid taking on high-risk patients or stop practicing in Florida entirely, a lobbyist for a medical malpractice insurance company has argued.
“There is a serious concern that there are other motivations here behind this bill, specifically with respect to abortion, with respect to potentially IVF in the future,” said Democratic Sen. Tina Polsky. “This is setting a new base for future issues, for future liability, for future bans. And it’s incredibly concerning.”
Conclusion
The bills in Florida and Kansas represent a significant shift in the legal landscape regarding fetal rights and abortion. While supporters argue that these measures are about compassion and support for families, critics see them as part of a broader strategy to erode abortion rights and eventually achieve a national ban. The implications of these laws, particularly the potential impact on IVF services and healthcare providers, are complex and multifaceted, warranting careful consideration and ongoing debate.
FAQs
- What do the new laws in Kansas and Florida propose?
- The Kansas law requires child support payments to cover embryos and fetuses and grants an income tax break for pregnancy or stillbirth. The Florida bill allows parents to seek civil damages for the wrongful death of an embryo or fetus.
- Why are critics concerned about these laws?
- Critics see these laws as part of an effort to give fetuses the same rights as the women carrying them, potentially leading to a national abortion ban. They also worry about the impact on IVF services and the potential for lawsuits against healthcare providers.
- How do these laws fit into the broader context of abortion rights in the U.S.?
- These laws follow the U.S. Supreme Court’s overturning of Roe v. Wade and are seen as part of a strategy to restrict abortion access and eventually achieve a national ban.
- What are the potential consequences for healthcare providers and IVF services?
- The fear of legal action could lead to more OBGYNs avoiding high-risk patients or stopping practice in states with such laws, and IVF services could be imperiled due to the risk of lawsuits over miscarriages.
- Are there bipartisan concerns about these laws?
- Yes, concerns about the potential misuse of these laws and their impact on women’s health and fertility services have been raised by lawmakers from both parties.
