Lauren Moye, FISM News
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A superior court judge has ruled that the father of a child who was aborted in 2018 can make his argument that the baby was wrongfully killed according to Arizona law.
The lawsuit could be the first U.S. case to recognize a fetus’ legal rights following the Supreme Court’s reversal of Roe v. Wade.
In 2018, a Marine named Mario Villegas and his wife were in the process of pursuing a divorce when the woman discovered she was pregnant. The pregnancy was later terminated in a process that Villegas alleges was rushed and violated Arizona’s 2009 informed consent laws.
After the divorce was finalized, Villegas sought the right to represent his unborn child in a wrongful death lawsuit against Dr. Gabrielle Goodrick, of Camelback Family Planning, who performed Villegas’ former wife’s counseling and abortion.
This week, Gila County Superior Court Judge Bryan Chambers ruled that the lawsuit could proceed. However, he reserved the right to rule on if Villegas could technically and legally represent his unborn child at a later point.
If Chambers later grants Villegas the right to represent the baby’s estate, it will be the first U.S. case to directly recognize legal rights for unborn children.
Other wrongful death cases involving an unborn child are usually connected to accidents or the death of the mother without directly recognizing the child as a separate estate in the legal process.
The case revolves around a specific question: “What constitutes an ‘informed decision’ before a woman can elect to terminate her pregnancy?” Arizona’s law at the time of the 2018 abortion required a counseling session for the mother and a 24-hour waiting period.
Villegas, who attended all of the counseling, procedure, and follow-up appointments, says the law was not properly followed in Goodrick’s “rush to maximize profits.” The Marine alleges his former wife never received proper counseling on “reasonable alternatives to abortion” or on the “intense and emotionally satisfying maternal bond” that could result from keeping the child.
His former wife has disagreed with his assertion. She argued for the case to be dismissed in 2021. The judge sided with Villegas on that point.
Some have suggested the lawsuit foreshadows future court actions that pro-life advocates may take to shut down abortions now that the Dobbs v. Jackson decision has given states the power to regulate or the industry.
Lucinda Finley, a law professor at the University at Buffalo, called it a “harbinger of things to come” and “troubling for the future” during an interview with ProPublica.
However, Villegas filed the wrongful death lawsuit in August 2020, long before the Dobbs decision and two months before the appointment of conservative Justice Amy Coney Barrett to SCOTUS.
The Arizona case drew inspiration from a similar 2019 case in Alabama, according to ProPublica. In the Alabama case, Ryan Magers went before a probate judge to be appointed as the personal representative of his unborn child, who was aborted against his will. Magers received his appointment.
A circuit court judge later dismissed the wrongful death lawsuit as being inapplicable under federal and state law.