Four years ago in Arizona, a woman had an abortion. She was not ambivalent about the decision: She was upset to learn she was pregnant, scared of giving birth, and she did not want — she had never wanted — children. Even so, Arizona law requires a pregnant person absorb a litany of information before terminating: medical information (like the risks associated with the procedure), and legal information (like the fact that the father would be liable for child support if she carried the pregnancy to term). In Arizona, a person must sign a consent form officially acknowledging receipt of that information, then wait 24 hours before she can obtain an abortion. The woman signed her paperwork and returned the next day to pick up the pills. Six days later, she came back for a follow-up visit: The abortion was successful.
Two years later, that woman’s ex-husband, Mario Villegas, created an estate for the aborted embryo, and filed a lawsuit on behalf of the embryo against the doctors and clinic who provided the abortion. Villegas accuses the clinic and doctors of failing to obtain his ex-wife’s informed consent, thus committing malpractice, causing the wrongful death of his potential child and violating his “fundamental right” to parent.
Last week, a lawyer representing the doctors and their Phoenix practice, Camelback Family Planning, made a last-ditch effort to avoid a trial in the case, asking the judge to issue a summary judgment finding that the woman had indeed given her informed consent. In depositions, the woman and her doctors “all said the same thing: that [she] knew what she was doing, she was fully advised, and they did the abortion according to Arizona law,” the doctors’ lawyer, Tom Slutes, says. “The purpose of the statute is to make sure that the mother is properly advised, and makes an informed decision, and this young lady did.”
Villegas’ lawyer, J. Stanley Martineau, doesn’t dispute that she signed paperwork consenting to the abortion. He argues her consent wasn’t informed because, among other technical faults, the clinic’s paperwork didn’t use the phrase “unborn child” when describing the embryo, as Arizona’s informed consent statute does. (He also faults the clinic for not offering a printed-out copy of the Arizona department of health services website, which the law says can be made available to pregnant person “if she chooses to review” it.) “If you interpret [the statute] literally, any slip-up in what kind of information you give is going to create a potential liability,” Martineau says.
Superior Court Judge Bryan Chambers is considering the motion to resolve the case without a trial, and says he will come to a decision within sixty days. But Villegas and his lawyer can already claim a kind of victory: They successfully convinced the judge that Villegas should be allowed to argue that his ex-wife’s embryo, whom they call “Baby Villegas” in legal documents, is a person for the purposes of the wrongful death lawsuit. If the case goes to trial, and if a jury ultimately finds in favor of the plaintiffs, it will be the first time that an aborted embryo has triumphed in a wrongful death lawsuit, ushering in a new legal threat not just for doctors, but for anyone who can become pregnant.
“This case was brought against the abortion provider, but it is required that the pregnant person, the ex-partner, be a witness in this case,” says Dana Sussman, deputy executive director for the National Advocates for Pregnant Women. Sussman worries that future litigants could use a similar strategy — suing for wrongful death — but go even further, by targeting the woman herself. “I could see a universe in which an ex-partner, in an attempt to harass or terrorize or create fear in the pregnant person, would try to bring a wrongful death lawsuit against the pregnant person herself, in addition to the provider.”
Villegas’ lawyer calls the judge’s decision “significant” because, Martineau says, “in a way, it’s saying that an unborn fetus has rights.” And, for decades, anti-abortion activists have been trying to establish both laws and case law that say exactly that.
The movement for fetal personhood grew out of Roe v. Wade itself, when, among other issues, the Supreme Court considered whether a fetus constituted a person with rights of its own under the Constitution. The justices ultimately concluded it didn’t, but Harry Blackmun, writing for the majority, asserted that “if this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed.” Ever since, activists have been lobbying aggressively to pass “fetal personhood” laws that radically reimagine a woman’s legal rights the moment she becomes pregnant.
Today, eleven states, including Arizona, have broad laws that have redefined the term “person” to include a fertilized egg, embryo, or fetus, paving the way for cases like the one Mario Villegas filed. Before the Dobbs decision, federal protections for abortion acted as a kind of guardrail against some of the most extreme interpretations of those laws. But “without Roe as a fundamental constitutional right,” NAPW’s Sussman says, “we are now starting to grapple with what exactly these laws mean in practice.”
For years, advocates have warned of the consequences fetal personhood laws could have for pregnant women, including the potential to rebrand any behavior that might pose a risk to a pregnancy as child endangerment. As anyone who has been pregnant knows, the list of activities that constitute a “risk” during pregnancy is virtually endless and can include pursuits as anodyne as consuming soft cheeses or sushi. (In many cases, admonitions around “risky” pregnancy behavior aren’t even grounded in science, but are instead based on the absence of scientific evidence, since the very idea of performing a study to quantify the risk would pose a risk of its own.) Under the legal theory that a fetus is a person with rights, even simply crossing the street can open a pregnant person up to legal liability: In one case, a court allowed a woman who was hit by a car while seven months pregnant to be sued by her future child for negligence because she failed to use “a designated crosswalk.”
According to an analysis by National Advocates for Pregnant Women, personhood laws were already having far-reaching consequences before Dobbs, creating conditions in which pregnant women were either denied medical care or had it forced upon them against their wishes. But, without federal protections, the group warns these laws could end up outlawing or curtailing the practice of IVF in at least thirty states, or requiring the “adoption” of unused embryos; they could hamper research that involves embryonic stem cells, determine whether or not a person is entitled to use the carpool lane, and change how much they pay in taxes or child support.
There is also the potential, noted in NAPW’s report, for former partners to weaponize such laws to prevent their partners (or ex-partners) from obtaining an abortion. In the past, the group found, courts have been largely unsympathetic to the arguments men have made when trying to block their ex-partners from obtaining abortions. But, surveying the history of those failed cases, they note a marked shift in legal framing “from the man’s right to the fetus’s right, reflecting the rise of personhood ideology.”
Villegas’ lawyer argues that both the father and the embryo had rights that were violated by the woman’s abortion. (Arizona’s informed consent statute allows the “father of the unborn child” to sue if he was married to the person who sought the abortion at the time.) The complaint declares Villegas has experienced “pain, grief, sorrow, anguish, stress, and mental suffering” over the loss of his ability to parent a hypothetical child. Throughout the complaint, his ex-wife is similiarly portrayed as victim who “suffered” an abortion because the doctors “failed to obtain” her informed consent.
In sworn testimony she was compelled to give in the case, however, Villegas’ ex-wife is crystal clear about her desire to have the abortion. She describes an unhappy and ill-conceived five-year marriage that ultimately ended with her seeking an order of protection against her ex-husband, who has a previous conviction of aggravated assault with a deadly weapon. The pregnancy came toward the end of their relationship and, she said, as a surprise, since Villegas had a vasectomy before they were married. (Villegas’ lawyer insists she was aware of her then-husband’s vasectomy reversal.) She puts it very plainly in the deposition: “I never wanted children and he knew that.” She describes fear of the “pain” of giving birth, and her disinterest in being responsible for a child: “I barely take care of myself as it is.” (The woman, who does not have a lawyer representing her in the proceedings, declined to be interviewed.)
Her absolute clarity of mind around her decision underscores the ways in which elevating an embryo’s rights instantly strips a woman of her own. The woman had a vision of her future that is incompatible with her ex-husband’s vision of her embryo’s future. Now, he’s asking the court to disregard hers entirely.
If the case goes to trial, and a jury ultimately finds that the doctors violated the statute, the doctors could be fined, forced to pay Villegas’ attorneys fees and possibly damages. Their medical licenses could be suspended or revoked as well. The case will offer a blueprint that could be replicated to re-litigate abortions in the future. While potentially devastating, those consequences seem almost quaint this week, as Arizonans wait for a different judge to issue a decision that could allow an abortion ban dating back to 1864 back into effect. The ban would make abortion illegal in every instance, except to save the life of the mother, and punish providers who violate the law with two to five years in prison.