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New Anti-Abortion Weapon; Suits By Aborted Fetuses
Judge Permits Father's Lawsuit On Behalf of "Estate" of Fetus
In Arizona, Mario Villegas was allowed to establish a legal estate for the fetus, dubbed "Baby Villegas," in order to sue doctors who had provided abortion pills to his then wife some four years earlier.
He persuaded a probate judge to appoint him as a representative of the estate of the aborted fetus so that he could then file a wrongful death lawsuit against those involved.
Such suits can cause very serious consequences for those who have been sued, including the stress and expense of being forced to defend themselves. For example, the doctor sued for prescribing abortion pills in Arizona had her annual medical malpractice insurance more than doubled from $32,000 to $67,000.
Those who support the availability of abortions should be especially concerned because all of the above occurred at a time when a woman's right to an abortion was constitutionally protected.
Now that Roe has been overruled by the Supreme Court, the opportunity for this tactic to be used as a powerful weapon against abortions - especially in jurisdictions where prosecutors may decline to bring criminal actions, so civil lawsuits may be the only effective weapon - has exploded, says Banzhaf.
These might include court orders, perhaps obtained by husbands or the biological fathers, prohibiting or at least limiting pregnant women from using illegal drugs, smoking tobacco and/or marijuana, drinking or at least drinking to excess, and even engaging in various jobs or activities which might unreasonably endanger a fetus, says Banzhaf.
It is quite likely that the Supreme Court's Dobbs decision has opened the floodgates to a large number of legal actions based upon new and novel unprecedented and untested legal theories, says Banzhaf, who has been called "Legal Academia's Instigator in Chief," and an "Entrepreneur of Litigation, [and] a Trial Lawyer's Trial Lawyer."
Unless and until the law regarding fetuses, and the potential legal rights of fetuses and their estates, becomes settled - something likely to take many years, and to involve different results in various states - legal uncertainty and the risk of exposure to novel legal actions is likely to compel doctors, hospitals and other health care centers, insurance companies, private employers, and even friends and family members, to be reluctant to become involved, directly or even indirectly, with abortions, predicts the law professor.