There’s nothing unusual about a wrongful death lawsuit. Tens of thousands are filed each year in response to the more than 200,000 accidental deaths that occur annually in the United States. Most of these lawsuits are settled before they ever reach a courtroom. What is unusual is to file a wrongful death claim on behalf of someone who was never born—which is precisely the scenario I wrote about four years ago in an article titled, “The Estate of Baby Villegas, Deceased.” It is the story of a grieving father who was powerless to prevent his ex-wife from aborting their child. But instead of just lamenting his legal impotence, he found an obscure statutory basis for suing the Arizona abortion clinic that killed his child.

When I published the piece in October of 2022, no judgment had yet been rendered, but the fact that the case was being heard at all was remarkable in its own right. When a similar suit—believed to be the first of its kind—reached the Alabama circuit court in 2019, it was immediately dismissed on the assertion that the federal precedent established by Roe v. Wade precluded its consideration. Though Mario Villegas—the father in the Arizona case—first filed his suit in 2020, by the time a motion for dismissal was argued in 2021, the influence of Roe was already slipping. It would be done away with entirely just a year later. More importantly, a little-known Arizona statute from 2011 explicitly granted husbands the right to file a civil suit if their child had been aborted without procuring the mother’s full informed consent. This is precisely what was at issue in the case of Baby Villegas, whether or not Camelback Family Planning had disclosed all the information required of it to legally obtain the consent of the aborting mother.

For years the case labored through the courts, and I lost sight of it until I got a call last week from the plaintiff. Not the baby, of course, but the father. Mario Villegas. Why did he call? First, to thank me for telling his story without framing him as a villain, which he told me virtually every other outlet had done, including Rolling Stone in the piece that first alerted me to his case back in 2022. That article called him a threat to abortion providers and a threat to women, for simply trying to hold to account those who killed the child he believed to be a daughter. In an attempt to deny him legal standing, his ex-wife accused Villegas of raping her, cyber-stalking her, emotionally abusing her, and impregnating her under the guise of being sterile. None of those charges held in court, which leads me to the second reason Villegas called: to tell me that they’d won! After a two-day bench trial, Judge Bryon B. Chambers ruled on July 22 of this year that Camelback Family Planning had not disclosed to his wife information about abortion that was required by state law. As a result of this negligence, the abortion of Baby Villegas had taken place illegally which thereby qualifies it as a wrongful death.

After we spoke on the phone, Mr. Villegas emailed me both the trial judgment and the almost 600-page trial transcript. It took me several hours to read through the whole thing, but the testimonies of two men, in particular, were worth their weight in gold. That would be Dr. Eric Hazelrigg, the OB/GYN who testified on behalf of the plaintiff, and Dr. Paul Isaacson, the OB/GYN who testified on behalf of the defense. Both men reside in Arizona, both men are of comparable age, and both men have been practicing medicine for more than three decades. But that is where the similarities end. Dr. Hazelrigg estimates that he’s delivered more than 10,000 babies over the course of his career but has never performed an abortion. Dr. Isaacson estimates that he’s performed tens of thousands of abortions. No mention was made as to whether or not he’s ever delivered a living baby. Before I dive into their testimonies, here is what Judge Chambers found:

This court finds that the pregnancy at issue in this case that was terminated in abortion was not the result of any criminal conduct on the part of the Plaintiff. Further, this court finds that the Plaintiff is entitled to $5,000 in statutory damages for Defendants failure to comply with Arizona's Informed Consent Law A.RS.§ 36-2153, and $62,500 in compensatory damages for his psychological, emotional, and physical injuries resulting from Defendants violation of Arizona's Informed Consent Law. Finally, as the prevailing party, Plaintiff is entitled to judgment for his attorney fees and costs…

Central to the defense’s case was the assertion that the abortion clinic was not strictly required to provide all of the state-mandated counseling materials because the aborting mother was already “a hundred percent certain” she wanted an abortion and would later insist that “nothing would change [her] mind." Ironically, the adamance of her defense that she was determined to have an abortion despite “significant” opposition from her husband, wound up undercutting one of their separate claims. Namely, that the plaintiff exercised “coercive control” over his wife that she was powerless to resist. As to the claim that nothing would have changed her mind, the ruling countered that she “cannot reliably testify about what she would have done with information she never had.” After being cleared of all criminal charges, this is how the monetary damages awarded Mr. Villegas were justified:

1. The Plaintiff suffered two distinct categories of harm. The first is pre-violation distress. The Plaintiff learned of [his wife’s] decision to abort before the procedure occurred. He experienced immediate emotional distress, including a breakdown, inability to eat, and disruption to his professional life. This distress flowed from [his wife’s] decision, which she had every (legal) right to make.

2. The second category is post-violation loss. On July 26, 2018, Defendants performed an abortion without valid informed consent. That act destroyed the embryo. The loss of the embryo, and the parent-child relationship the Plaintiff would have had, is the injury caused by Defendants' violation of the Act.

3. The distinction matters. The Plaintiff is not entitled to seek damages for the distress of learning his wife wanted an abortion. However, he may seek damages for the destruction of an embryo that Defendants had no legal authority to destroy without first complying with the Act.

If you’re wondering what precisely “the Act” required of Arizona abortion clinics in 2018, here is a partial list of the mandated disclosures, each of which had to be communicated to the mother at least 24 hours before the abortion took place:

• Mothers must be informed of the probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed. The pictures or drawings they are shown must contain the dimensions of the unborn child and must be realistic and appropriate for each stage of pregnancy. The information provided pursuant to this paragraph must be objective, nonjudgmental and designed to convey only accurate scientific information about the unborn child at the various gestational ages.
• Mothers must receive a description of the methods of abortion procedures commonly employed, the medical risks commonly associated with each procedure, and the possible detrimental psychological effects of abortion.
• Mothers must be notified that medical assistance benefits for prenatal care, childbirth and neonatal care are available to her through public and private agencies. These services are available to assist the woman during her pregnancy and after the birth of her child if she chooses not to have an abortion, whether she chooses to keep the child or place the child for adoption. 
• Mothers must be notified that the father of the unborn child is liable to assist in the support of the child, even if he has offered to pay for the abortion.
• Minor mothers must be notified that if she is denied financial support by her parents, guardians or custodian due to the minor's refusal to have an abortion, she is eligible for public assistance benefits.
• Mothers must be notified that mifepristone is part of a two-drug regimen to terminate her pregnancy that is not always lethal and may be reversible should she change her mind prior to taking the second drug.
• Mothers must be notified that any physician who performs an abortion without obtaining her voluntary and informed consent or without affording her a private medical consultation may be liable to the woman for damages in a civil action. The father of the unborn child may file a civil action to obtain appropriate relief for a violation of this section if the father was married to the mother at the time she received the abortion and the pregnancy did not result from the plaintiff's criminal conduct. A maternal grandparent of the unborn child may also file a civil action to obtain appropriate relief for a violation of this section if the mother was not at least eighteen years of age at the time of the abortion and the pregnancy did not result from the plaintiff's criminal conduct.

The term “unborn child” appears 11 times in the act, which is itself problematic for the Arizona abortion clinics tasked with fulfilling it. As the defense’s expert witness testified, abortion clinics categorically refuse to use the term “unborn child.” When asked why this is so, Dr. Isaacson answered, “it implies that what is inside [the] uterus is, in fact, a child. It may become a child in time but at the time of an abortion it is not.” Dr. Isaacson, apparently, doesn’t know what it means for a woman to be with child—the age-old euphemism for being pregnant. No doubt he’d simply write the expression off as an antiquated holdover from a more primitive time. You know, before we realized there is nothing wrong with mutilating our offspring in the womb. Despite dictionary definitions of child that include “descendant,” “a son or daughter of human parents,” and even “an unborn or recently born person,” Dr. Isaacson maintains that “embryo” or “fetus” is the only appropriate term to describe that which is in the uterus. Nevertheless, he doesn’t even use these terms in practice. Instead, he calls it pregnancy. “I think people understand,” he said under oath, “it's a pregnancy in their uterus that they want removed.” When the other OB/GYN, the one who doesn’t perform abortions, was asked about the appropriateness of calling an embryo or fetus “a baby,” this was his reply:

We always use the term baby when we discuss the pregnancy with the mother… [because] she never calls her baby my fetus or my embryo. I would venture to say in my entire career, I've never had a patient refer to their baby as an embryo or a fetus… I've been doing this for 32 years, (and) I've never heard an obstetrician tell a patient, "Your embryo looks great," or, "Your embryo is growing great." I've never heard that in my entire life. So it's not a word that we use.

It may not seem a big deal, but the words that are used—or not used—play a significant role in how we come to understand reality. To wit, there is an interesting revelation in the Rolling Stone piece that I didn’t catch the first time through. Actually, there are a couple. Tessa Stuart, who wrote the article, never used the word mother to refer to Villegas’ ex-wife. That’s almost certainly because referring to a pregnant woman as a mother implies that she has a child, which is something abortion advocates actively deny. As we’ve already seen. But the term mother still managed to infiltrate her story in two places. The truth will out! Tom Slutes, the lawyer for Camelback Family Planning, in trying to get the case thrown out, argued that even if the letter of the law had been violated, the spirit of the law had not. “The purpose of the statute,” he is quoted as saying, “is to make sure that the mother is properly advised, and makes an informed decision, and this young lady did.”

This young lady, it should be noted, had no other children besides the one growing inside her. That is the child that made her a mother, and the attorney for the defense apparently forgot about his obligation to deny this fundamental reality. By definition, according to Merriam Webster, a mother is “a female parent,” parent is “one that begets or brings forth offspring,” and offspring is “the product of the reproductive processes of a person, animal, or plant.” Combining all three, we can say that a mother is a woman who has reproduced. And that reproduction occurs at conception. That’s the decisive moment when a new human being comes into existence. Everything after that is just growth and development. 

Though Stuart dutifully used the term “pregnant person” throughout the article (this was 2022, after all), she slipped up in the very last sentence. If Arizona’s 1864 abortion ban were to go back into effect, Stuart warned, “abortion (would be) illegal in every instance, except to save the life of the mother.” Why didn’t she say except to save the life of the pregnant person? I don’t know, but there it is. Women are the only ones who get pregnant, and when a woman is pregnant, she is thereby a mother. You might even say that she is never more of a mother than when her child is literally living inside of her. 

To call someone a mother is to concede that she has a child, and once you concede that an aborting woman has a child, you concede that abortion kills that child. This is why abortion advocates fight so hard to control the language surrounding the vile act. It’s the only way to justify what they do. When Dr. Isaacson was asked whether it was true that abortion “killed the Villegas unborn child,” he countered that “abortion ended the pregnancy.” He then admitted that he doesn’t like or use the word kill. When asked whether or not the child was alive before the first abortion pill was taken, Dr. Isaacson said, “By my definition, no.” It was then pointed out that he’d already declared the embryo to be viable at the time of the abortion. His response: “that (only means) there's cardiac activity and interval growth.” He then doubled down on the assertion that, by his definition, the embryo was not alive before the abortion. But if that were actually the case, it’s safe to wonder, why was the abortion even necessary?

Earlier in the trial, when Dr. Hazelrigg was asked by the defense why he didn’t think a woman should “have the legal right to terminate her pregnancy,” he had a very different take from that of Dr. Isaacson. “I believe that this baby was created in the image of God,” he answered, “and we are all created in the image of God, and it's not our [right] to take another human being's life.” How that response must have galled Dr. Isaacson, though we shouldn’t be surprised by the fact that men who deliver babies for a living and men who kill babies for a living see the world through a very different lens.

Perhaps the most revealing portion of Dr. Isaacson’s testimony was his assertion that the means by which Camelback Family Planning obtained the informed consent from Mrs. Villegas was consistent with the way it is done in all of the abortion clinics he is familiar with.  He said this despite the fact that women at Camelback were made to sign the document stating they’d received all the counseling materials pursuant to the Women’s Right to Know act before the counseling session took place. He defended the explicitly fraudulent practice on the grounds of efficiency. Having her sign and initial it ahead of time, he said, “is a good way [to ensure against] missing signatures and initials on forms.” It’s also a good way to get the signature you need without providing the required information—which is precisely what Camelback did.

Not surprisingly, Dr. Isaacson asserted that in his opinion, Camelback Family Planning “adequately informed (the patient) of the medical care she was to receive.” He further elaborated that, despite what the statute requires, he believes informed consent can be obtained without offering the patient “a description of the state of fetal development,” and without informing her “about the father needing to provide support for the patient after the birth,” and without telling her “the gestational age” of the child she is about to abort. In other words, Camelback behaved just as every other abortion clinic behaves for every abortion they perform. The problem is, the court found Camelback liable for negligence and guilty of performing an illegal abortion for their failure to make numerous state-mandated disclosures. I suspect that means that, by this standard, virtually every abortion in Arizona that took place while this statute was on the books took place illegally. Sadly, that statute is no longer on the books—thanks in large part to the efforts of Dr. Isaacson himself.

On February 6 of this year, the Women's Right to Know Act was declared unconstitutional by the Arizona state court, which means that Arizona abortion clinics are no longer required to disclose any of the information formerly required. Not that they apparently ever did. So even as I rejoice with Mario Villegas at achieving a small measure of justice for his aborted child, I lament that he may be the last father to gain such a victory. At least in Arizona. I’m also reminded of the fact that efforts like Abort73.com are no less important in post-Roe America. Roe has been aborted; abortion has not. The information Abort73 provides on prenatal development and the mechanics of abortion is much the same information that clinics were supposed to be providing to mothers all along. The reason they worked so hard to suppress such information is because they know the same thing we do. The more someone knows about abortion, the less likely they are to have one, recommend one, or support one as a matter of public policy.