A Texas man is suing three women under the wrongful death statute, alleging that they assisted his ex-wife in terminating her pregnancy, the first such case brought since the state's near-total ban on abortion last summer.
Marcus Silva is represented by Jonathan Mitchell, the former Texas solicitor general and architect of the state's prohibition on abortions after about six weeks of pregnancy, and state Rep. Briscoe Cain, R-Deer Park. The lawsuit is filed in state court in Galveston County, where Silva lives.
Silva alleges that his now ex-wife learned she was pregnant in July 2022, the month after the overturn of Roe v. Wade, and conspired with two friends to illegally obtain abortion-inducing medication and terminate the pregnancy.
The friends texted with the woman, sending her information about Aid Access, an international group that provides abortion-inducing medication through the mail, the lawsuit alleges. Text messages filed as part of the complaint seem to show they instead found a way to acquire the medication in Houston, where the two women lived.
A third woman delivered the medication, the lawsuit alleges, and text messages indicate that the wife self-managed an abortion at home.
The defendants could not immediately be reached for comment. Silva's wife filed for divorce in May 2022, court records show, two months before the alleged abortion. The divorce was finalized in February. They share two daughters, the lawsuit said.
The lawsuit relies heavily on screenshots from a group chat the ex-wife had with two friends seemingly seeking to help her terminate her pregnancy. Her friends expressed concern that Silva would "snake his way into your head."
"I know either way he will use it against me," the pregnant woman said, according to text messages attached to the complaint. "If I told him before, which I'm not, he would use it as [a way to] try to stay with me. And after the fact, I know he will try to act like he has some right to the decision."
"Delete all conversations from today," one of the women later told her. "You don't want him looking through it."
The lawsuit alleges that assisting a self-managed abortion qualifies as murder under state law, which would allow Silva to sue under the wrongful death statute. The women have not been criminally charged. Texas' abortion laws specifically exempt the pregnant person from prosecution; the ex-wife is not named as a defendant.
The legality of abortion in Texas in July 2022 is murky. The state's trigger law, which makes performing abortion a crime punishable by up to life in prison, did not go into effect until August. But conservative state leaders, including Cain and Attorney General Ken Paxton, have claimed that the state's pre-Roe abortion bans, which punish anyone who performs or "furnishes the means" for an abortion by up to five years in prison, went back into effect the day Roe v. Wade was overturned in June.
The legal status of these pre-Roe statutes remains a contentious question. In 2004, the 5th U.S. Circuit Court of Appeals ruled that those laws were "repealed by implication," which U.S. District Judge Robert Pitman reaffirmed in a recent ruling. But Cain and others have repeatedly argued that the Legislature restored those laws into effect with recent abortion legislation. This issue went before the Texas Supreme Court, but the case was dismissed before a final ruling.
In 2021, the Legislature passed a law making it a state jail felony to provide abortion-inducing medication except under extremely specific circumstances.
Joanna Grossman, a law professor at SMU Dedman School of Law, said this lawsuit is "absurd and inflammatory." Since the pregnant patient is protected from prosecution, there is no underlying cause of action to bring a wrongful death suit in a self-managed abortion, she said.
"But this is going to cause such fear and chilling that it doesn't matter whether [Mitchell] is right," Grossman said. "Who is going to want to help a friend find an abortion if there is some chance that their text messages are going to end up in the news? And maybe they're going to get sued, and maybe they're going to get arrested, and it's going to get dropped eventually, but in the meantime, they will have been terrified."
But it's possible this lawsuit could get traction, said Charles "Rocky" Rhodes, a law professor at South Texas College of Law.
"It's scary to think that you can be sued for significant damages for helping a friend undertake acts that help her have even a self-medicated abortion," Rhodes said. "Obviously, the allegations would have to be proven, but there is potentially merit to this suit under Texas' abortion laws as they exist now."
Mitchell and Cain intend to also name the manufacturer of the abortion pill as a defendant, once it is identified.
"Anyone involved in distributing or manufacturing abortion pills will be sued into oblivion," Cain said in a statement.
Silva is asking a Galveston judge to award him more than $1 million in damages and an injunction stopping the defendants from distributing abortion pills in Texas.
Jolie McCullough contributed to this report
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/03/10/texas-abortion-lawsuit/.
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