File this one under “we live in hell”: The doctors of an Arizona woman who had an abortion in 2018 are being sued by the estate of her aborted embryo, created by her ex-husband. Rolling Stone reports that the judge is currently on the brink of deciding whether the lawsuit—first filed in 2020—will go to trial. The case largely hinges on whether the woman’s doctors violated Arizona’s informed consent statute, which, among other things, requires a pregnant person seeking an abortion to sign a form confirming they’ve been warned about supposed “medical risks” associated with abortion care (which is highly safe). Prospective patients must also confirm that they’ve been told that the father would be liable for child support if the pregnancy is carried to term and that the “father of the unborn child” can sue if he was married to the person who had the abortion at the time.
And that’s just what the woman’s ex-husband, Mario Villegas, is doing. Should Villegas’ case go to trial and a jury side with him, this would be the first time an aborted embryo has triumphed in a wrongful death lawsuit—a precedent that anti-abortion activists and abusive exes could wield to unleash hell on pregnant people.
Last week, lawyers representing the woman’s doctors and the Phoenix-based practice, Camelback Family Planning, asked the judge to issue a summary judgment finding that the woman had, indeed, received informed consent—something that both the woman’s paperwork and testimony all attest to—and stop the potential trial. Villegas’ lawyers argue his ex-wife’s consent couldn’t possibly have been informed, because the clinic’s paperwork didn’t use the phrase “unborn child” when describing the embryo, among other bizarre, alleged technical faults in the information the clinic provided to the woman. Despite these claims from Villegas, testimony from his ex-wife shows she was clear-eyed about the decision to have an abortion. “I never wanted children and he knew that. … I barely take care of myself as it is,” she said. She also testified that the pregnancy came toward the end of the relationship, and she’d believed her then-husband had had a vasectomy.
Superior Court Judge Bryan Chambers is expected to decide within 60 days whether the case will go to trial. But regardless of the judge’s decision, it’s deeply chilling that a case like this could progress so far—with an embryo as a recognized, human plaintiff—at a time when a federal judge in Arizona is currently presiding over a separate case regarding whether a 1901 law enshrining fetal personhood is effective now that Roe v. Wade has been overturned.
Recognition of an unborn fetus as a person comes with a long history of legal risks for pregnant people, which we’re watching play out in real-time with the so-called “Baby Villegas” (barf) case. In addition to Arizona’s 1901 law, it’s one of nearly 40 states where the penal code recognizes a fetus as a person. (Fetal homicide laws were initially created to address how homicide is the leading cause of death for pregnant people, but have instead been misused by prosecutors to criminally charge pregnant people who lose their pregnancies.)
National Advocates for Pregnant Women (NAPW) previously shared with Jezebel that it’s identified legal cases of pregnant people being prohibited from traveling out-of-state due to their partners’ custody claims over their fetus—some went so far as to regard pregnant people’s interstate travel as “kidnapping.” In 2009, a pregnant woman in New York was convicted of manslaughter for losing her pregnancy after driving intoxicated without a seatbelt. At least two moms have been reported to child services for consuming poppyseeds and testing positive for drugs while pregnant. Even IVF could be banned following the “logic” of fetal personhood, which also challenges rights to emergency contraception and most birth control.
NAPW told Rolling Stone that historically, cases like this have centered around “fathers’ rights,” but this notably more successful case focuses on fetal rights. Still, unsurprisingly, Villegas has managed to make the legal terror campaign he’s waged on the family planning clinic about his own suffering, and infringement on his perceived “fundamental right” to parent. His lawsuit also misguidedly harps about his ex-wife’s imagined victimhood, as she “suffered” an abortion because the doctors “failed to obtain” her informed consent. This is a laughable claim considering his ex-wife’s aforementioned testimony.
There’s a long history of retaliatory cases from “fathers” of fetuses—Sofia Vergara’s ex repeatedly, and unsuccessfully, sued her for rights over their frozen embryos. For years, state legislatures have introduced and reintroduced bills to require the consent of the father of the fetus for an abortion. In Mississippi, you literally can’t get a divorce while pregnant. All of this, NAPW’s Sussman pointed out to Rolling Stone, leaves pregnant people more vulnerable to the abuse they already face at jarring rates: “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.”
The dehumanization of pregnant people in the legal and medical systems in favor of embryos and fetuses isn’t new—but the overturning of Roe creates exponentially greater risk.