The ACLU argues that the Florida Supreme Court said in a 1989 case that guardians cannot be appointed to represent fetuses.
By CURTIS KRUEGER and MICHAEL SANDLER
Published May 14, 2003
TALLAHASSEE - In a decision that has rekindled the abortion debate, Gov. Jeb Bush announced Tuesday he will seek a guardian for a fetus being carried by a 22-year-old rape victim who is mentally disabled.
Giving a fetus a guardian apparently would be unprecedented in Florida, and may conflict with a 1989 Florida Supreme Court ruling. If an Orlando judge approves the request today, different guardians would be assigned to the woman and to the child within her.
The woman, who has lived for 19 years in an Orlando group home, is at least five months pregnant.
Bush called it a "uniquely troubling situation."
"It is entirely appropriate that an advocate be appointed to represent the unborn child's best interests in all decisions," he said.
His statement marked the second time in a week that state officials had announced opposite stances on the case.
The Florida ACLU and other groups sought Tuesday to intervene in the case.
Howard Simon, the ACLU's Florida executive director, accused Bush of using the guardian request as a stalling tactic to prevent any possibility of an abortion.
Bush said he wasn't trying to make a political statement, but realized some would see it that way. He called his act a "moral decision" on behalf of a mother incapable of making life choices for herself or the unborn child.
"Look, I know how the world works," Bush said. "I know how politics work. This is simply an expression of compassion for a tragic case where a woman was raped and cannot provide support or any decision for this child. I'm not suggesting by this action that we are thrusting this family into the abortion debate. That is my last interest and I would appreciate people that follow this to do the same."
DCF Secretary Jerry Regier said the unborn child should have a guardian to represent his or her interests.
Regier stressed that "abortion hasn't been under consideration to my knowledge in any step of this process." But should it come under discussion, the guardian would argue on behalf of the fetus.
"Certainly there could be a possibility that that could be a part of what (the guardian) would be called upon to do," he said.
Regier was unaware of any other case in Florida where a guardian was appointed for a fetus. He said the move did not signal a policy shift as much as a "convergence" of factors.
Even some strong abortion opponents believe the procedure may be acceptable in cases of rape. But in this unusual case, Regier pointed out, the expectant mother is incapacitated and not able to make key life decisions.
Regier said it's possible there could be other ways in which the mother's and the fetus' interests diverge, such as taking certain medications.
Bush said he made the decision before the unborn child's birth because the DCF shouldn't be "creating policy by interpreting the law."
"If anybody should be doing that, it should be at a higher level," Bush said.
But Simon said the decision already has been made at a higher level: by the Florida Supreme Court, which said in a 1989 case that guardians cannot be appointed to represent fetuses.
Simon also said he's not aware of anyone suggesting an abortion should occur in this case. What should happen, he believes, is that a guardian appointed for the expectant mother should quickly evaluate what's best for her. He doesn't assume that would mean an abortion, but said abortion should at least be considered among the possibilities.
The woman has been described as "at least 20 weeks pregnant" (five months), or as six months pregnant. In either case, the time for an abortion would be running out because most abortions are not allowed in the third trimester of pregnancy.
DCF officials filed an emergency petition last week, asking an Orange County circuit judge to assign protective supervision for the woman, continue her around-the-clock care and determine her current health status - plus appoint guardians for her and the unborn child.
But a DCF attorney told the Orlando Sentinel on Monday that the agency had dropped its request for a guardian for the fetus, saying a 1989 ruling by the Florida Supreme Court in a landmark abortion rights case made such an appeal "clearly improper."
"It's not our intention to undo the Supreme Court's ruling," Richard Cato told the Sentinel.
Bush's announcement Tuesday reversed that position. Regier said there had been internal "miscommunication" about the state's policy.
He said he was aware of the 1989 Florida Supreme Court ruling, but did not comment further. Both Bush and Regier are strong abortion opponents. When asked Tuesday by a reporter why a guardian should be appointed for a fetus, Bush corrected him: "For a baby. I think it's an unborn child."
-Information from the Orlando Sentinel and Associated Press was used in this report.
