Nearly four years ago, a woman had an unplanned pregnancy and obtained abortion pills at a Phoenix clinic. Now she is embroiled in a lawsuit over that decision.
A judge allowed the woman’s ex-husband to establish an estate for the embryo, which had been aborted in its seventh week of development. In 2020, the ex husband filed a wrongful-death lawsuit against the clinic’s doctors. He claimed that doctors failed properly to obtain proper authorization. informed consentArizona law requires that the woman be notified.
People in the U.S. have filed lawsuits for negligence in the demise of a fetus/embryo when a pregnant person is killed in an automobile accident or when a physician has allegedly done something wrong. Legal experts say that a court action for the wrongful death or fetus of an aborted embryo is a novel strategy.
The experts said this rare tactic could become more common, as anti-abortion groups have signaled their desire to further limit reproductive rights following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health OrganizationThis was overturned by Roe v. Wade. The Arizona lawsuit and others that may follow could also be an attempt to discourage and intimidate providers and harass plaintiffs’ former romantic partners, experts said.
Lucinda Finley, a law professor at the University at Buffalo who specializes in tort law and reproductive rights, said the Arizona case is a “harbinger of things to come” and called it “troubling for the future.”
Finley said she expects state lawmakers and anti-abortion groups to use “unprecedented strategies” to try to prevent people from traveling to obtain abortions or block them from obtaining information on where to seek one.
The Texas Heartbeat Act was passed in May 2021. It is the most extreme example. In Texas, private citizens can sue any person who aids or performs abortions.
“It’s much bigger than these wrongful death suits,” Finley said.
Civia Tamarkin of the National Council of Jewish Women Arizona, an organization that advocates for reproductive right, stated that the Arizona lawsuit was part of a larger agenda anti-abortion advocates are working towards.
“It’s a lawsuit that appears to be a trial balloon to see how far the attorney and the plaintiff can push the limits of the law, the limits of reason, the limits of science and medicine,” Tamarkin said.
In July 2018, the ex-husband, Mario Villegas, accompanied his then-wife to three medical appointments — a consultation, the abortion and a follow-up. The woman, who ProPublicaAccording to a deposition in the wrongful-death suit, the plaintiff, who is not identifying for privacy purposes, stated that they were already talking about getting a divorce at time of the procedure. The divorce was finalized later in the year.
“We were not happy together at all,” she said.
Villegas, an ex-Marine from Globe, Arizona (a mining town east Phoenix), had been married twice previously and has several other children. Since then, he has moved out of state.
According to court records, she stated that she was seeking an abortion as she was not ready for parenthood and because her relationship with Villegas was insecure. She also checked a box affirming that “I am comfortable with my decision to terminate this pregnancy.” The woman declined to speak on the record with ProPublicaFear for her safety.
The following year, in 2019, Villegas learned about an Alabama man who hadn’t wanted his ex-girlfriend to have an abortion and sued the Alabama Women’s Center for Reproductive Alternatives in Huntsville on behalf of an embryo that was aborted at six weeks.
Ryan Magers, the father of the embryo, filed a lawsuit to sue for his rights. He then went to probate to ask a judge if he could be appointed personal representative of the estate. A probate judge can appoint someone to represent an estate of a person who has not made a will. That representative then has the authority to distribute the estate’s assets to beneficiaries.
When Magers filed to open an estate for the embryo, his attorney cited various Alabama court rulings involving pregnant people and a 2018 amendment to the Alabama Constitution recognizing the “sanctity of unborn life and the rights of unborn children.”
Magers was appointed as the representative of the estate by a probate judge, giving Magers legal standing to sue for damages in a wrongful death case. This case is believed to be the first time that an aborted embryo has been granted legal rights. national headlines.
It’s unclear how many states allow an estate to be opened on behalf of an embryo or fetus. Some states, like Arizona, don’t explicitly define what counts as a deceased person in their probate code, leaving it to a judge to decide. In a handful of states, laws define embryos and fetuses as a person at conception, which could allow for an estate, but it’s rare.
An Alabama circuit court judge eventually dismissed Magers’ wrongful death lawsuit, stating that the claims were “precluded by State and Federal laws.”
Villegas contacted Magers’ attorney, Brent Helms, about pursuing a similar action in Arizona and was referred to J. Stanley Martineau, an Arizona attorney who had flown to Alabama to talk to Helms about Magers’ case.
In August 2020, Villegas filed a petition to be appointed personal representative of the estate of “Baby Villegas.” His ex-wife opposed the action and contacted a legal advocacy organization focused on reproductive justice, which helped her obtain a lawyer.
In court filings, Villegas said he prefers to think of “Baby Villegas” as a girl, although the sex of the embryo was never determined, and his lawyer argued that there isn’t an Arizona case that explicitly defines a deceased person, “so the issue appears to be an open one in Arizona.”
In a 2021 motion arguing for dismissal, the ex-wife’s attorney, Louis Silverman, argued that Arizona’s probate code doesn’t authorize the appointment of a personal representative for an embryo, and that granting Villegas’ request would violate a woman’s constitutional right to decide whether to carry a pregnancy to term.
“U.S. Supreme Court precedent has long protected the constitutional right of a woman to obtain an abortion, including that the decision whether to do so belongs to the woman alone — even where her partner, spouse, or ex-spouse disagrees with that decision,” Silverman said last year.
Gila County Superior Court Judge Bryan B. Chambers stated that Villegas could make the argument in a wrongful-death lawsuit that the embryo is a person, but that he had not yet reached that conclusion in an order denial of the motion. Villegas was later appointed personal representative of the estate.
The states decide what is legal. DobbsWhile legislators are proposing new abortion laws, antiabortion groups like the National Right to Life Committee view civil suits as a way to enforce abortion prohibitions. They have created model legislation that they hope will be replicated by sympathetic legislators across the country.
“In addition to criminal penalties and medical license revocation, civil remedies will be critical to ensure that unborn lives are protected from illegal abortions,” the group wrote in a June 15 letterto its state affiliates, which included the model legislation.
James Bopp Jr., general counsel for the committee, spoke to us in an interview. ProPublica that such actions will be necessary because some “radical Democrat” prosecutors have signaled they won’t enforce criminal abortion bans. Last month, 90 prosecutors across the country were involved in the case. indicated that they would not prosecuteThose who seek abortions.
“The civil remedies follow what the criminal law makes unlawful,” he said. “And that’s what we’re doing.”
The National Right to Life Committee’s model legislation, which advocates prohibiting abortion except to prevent the death of the pregnant person, recommends that states permit civil actions against people or entities that violate abortion laws “to prevent future violations.” It also suggests that people who have had or have sought to have an illegal abortion, as well as the expectant father and the parents of a pregnant minor, be allowed to pursue wrongful death actions.
Under the legislation, an action for wrongful death of an “unborn child” would be treated like that of a child who died after being born.
In one regard, Arizona has already implemented a piece of this model legislation as the state’s lawmakers have chipped away at access to abortion and enacted a myriad of regulations on doctors who provide the procedure.
The state’s “informed consent” statute for abortion, first signed into law by then-Gov. Jan Brewer in 2009The law mandated an in-person counseling appointment and a 24-hour waiting period prior to an abortion. It allows a pregnant person, their husband or a maternal grandparent of a minor to sue if a physician does not properly obtain the pregnant person’s informed consent, and to receive damages for psychological, emotional and physical injuries, statutory damages and attorney fees.
The informed consent laws, which have changed over time, mandate that the patient be told about the “probable anatomical and physiological characteristics” of the embryo or fetus and the “immediate and long-term medical risks” associated with abortion, as well as alternatives to the procedure. Some abortion-rights groups as well as medical professionals have criticised informed consent processes, arguing that the materials can be misleading or personify the embryo/fetus. A 2018 review of numerous studies concluded that having an abortion does not increase a person’s risk of infertility in their next pregnancy, nor is it linked to a higher risk of breast cancer or preterm birth, among other issues.
The wrongful-death suit comes at a moment of extraordinary confusion regarding Arizona’s abortion laws.
Until Roe v. Wade1973, which established a constitutional right for abortion. This was a change from a law that had prohibited the procedure before statehood. In March, Gov. Doug Ducey, a Republican who has called Arizona “the most pro-life state in the country,” signed into lawA bill that outlawed abortions after 15 week was introduced. This law would override the pre-statehood ban. RoeThese were overturned. Now, however, RoeArizona Attorney General Mark Brnovich (another Republican) said that he plans to enforce the pre-statehood prohibition, which prohibits abortion except for the preservation of life. On Thursday, he filed a motionTo lift an injunction against the law, which would make it enforceable.
A U.S. District Court Judge on Monday blocked a portion of the application. 2021 Arizona lawThis would allow fertilized eggs, embryos, and fetuses to be considered people from conception. The law also means that the attorney general can’t use the so-called personhood law that prohibits abortion providers. In light of the Supreme Court decision, Dobbs, eight of the state’s nine abortion providers — all located in three Arizona counties — halted abortion services, but following the emergency injunction some are again offering them.
In the wrongful death claim, Martineau argued that the woman’s consent was invalidated because the doctors didn’t follow the informed consent statute. Although the woman signed four consent documents, the suit claims that “evidence shows that in her rush to maximize profits,” the clinic’s owner, Dr. Gabrielle Goodrick, “cut corners.” Martineau alleged that Goodrick and another doctor didn’t inform the woman of the loss of “maternal-fetal” attachment, about the alternatives to abortion or that if not for the abortion, the embryo would likely have been “delivered to term,” among other violations.
Tom Slutes, Goodrick’s lawyer, called the lawsuit “ridiculous.”
“They didn’t cut any corners,” he said, adding that the woman “clearly knew what was going to happen and definitely, strongly” wanted the abortion. Regardless of the information the woman received, she wouldn’t have changed her mind, Slutes said. Slutes referenced the deposition, where the woman said she “felt completely informed.”
Martineau said in an interview that Villegas isn’t motivated by collecting money from the lawsuit.
“He has no desire to harass” his ex-wife, Martineau said. “All he wants to do is make sure it doesn’t happen to another father.”
In a deposition, Villegas’ ex-wife said that he was emotionally abusive during their marriage, which lasted nearly five years. At first, she said, Villegas seemed like the “greatest guy I’ve ever met in my life,” taking her to California for a week as a birthday gift. But as the marriage progressed, she said, there were times he wouldn’t allow her to get a job or leave the house unless she was with him.
The woman alleged that Villegas made fake social media profiles, hacked into her social media accounts and threatened to “blackmail” her if she left him during his failed campaign to be a justice of the peace in Gila County, outside of Phoenix.
Martineau stated that Villegas denied all allegations of his relationship with Villegas, but declined further comment.
Carliss Chatman is an associate professor of law at Washington and Lee University in Virginia. She said that certain civil remedies can also allow men to continue to abuse their ex-partners through the court system.
“What happens if the father who is suing on behalf of the fetus is your rapist or your abuser? It’s another way to torture a woman,” Chatman said.
Chatman said that legal actions can act as a deterrent to doctors in states where abortion has been banned after a certain gestational age. This is because doctors are less likely to be insured by civil suits.
Goodrick, who performed abortions in Arizona since mid-1990s, said that the lawsuit has increased the stress on her and her practice. According to her, the annual cost of her malpractice insurance has increased from $32,000 up to $67,000 since the lawsuit was filed.
Before providers in Arizona halted abortions following the Supreme Court decision, people would begin lining up outside Goodrick’s clinic at 6 a.m., sometimes with lawn chairs in hand, like “a concert line,” Goodrick said.
“Every year there’s something and we never know what it’s going to be,” Goodrick said recently at her Phoenix clinic. “I’m kind of desensitized to it all.”