As soon as the US supreme court overturned Roe v Wade two years ago, anti-abortion activists started debating if and how they could limit Americans’ ability to cross state lines for legal abortions. Now, a Texas man has asked a court to greenlight an investigation into the abortion his former partner allegedly received in a state where the procedure remains legal.
The man, Collin Davis, said in court records that when he learned his former partner planned to get an abortion in February 2024, he hired an attorney who would “pursue wrongful-death claims against anyone involved in the killing of his unborn child”. According to the records, the woman proceeded to get an abortion in Colorado, a state that has become an abortion haven as laws banning the procedure have taken effect across much of the US midwest and south.
Davis’s petition, filed in March and first reported by the Washington Post last week, seeks to use a Texas law that allows people to request legal depositions before potentially filing a lawsuit, in order to ascertain who may have “aided or abetted” the woman’s abortion. Davis argues that, if the investigation uncovers wrongdoing, he can sue under Texas’s wrongful-death statute or under a state law that permits private individuals to sue one another on suspicion of “aiding or abetting” an abortion past six weeks of pregnancy.
Davis does not intend to sue the woman who got the alleged abortion, but is evaluating whether to go after “co-conspirators and accomplices” – a seemingly broad range of people that could include “any individual … involved in the murder of Mr Davis’ unborn child”.
It is legal for people to cross state lines for abortions in states that still permit the procedure. However, activists determined to end abortion nationwide have launched a series of legislative and legal volleys to undermine that right, often by targeting groups and individuals who may help patients travel.
Idaho has passed a law banning people from helping minors leave the state for legal abortions – an act that the state has labeled “abortion trafficking” – unless they have parental consent. Small Texas localities have passed a series of ordinances to restrict people’s ability to transport others along local roads for out-of-state abortions. Alabama’s attorney general has threatened to prosecute groups that help women leave the state for abortions – a threat that a federal judge beat back forcefully earlier this week.
“Alabama can no more restrict people from going to, say, California to engage in what is lawful there than California can restrict people from coming to Alabama to do what is lawful here,” US district judge Myron Thompson wrote in a preliminary ruling in a lawsuit brought by Alabama abortion providers and their supporters.
Davis is being represented by Jonathan Mitchell, a prominent anti-abortion attorney and architect of the Texas law that permits people to sue over suspected illegal abortions. Mitchell, who is also representing another Texas man who is currently suing his ex-wife’s friends for allegedly helping her get an abortion, believes current law allows for holding people liable for helping procure out-of-state abortions.
“Fathers of aborted fetuses can sue for wrongful death in states with abortion bans, even if the abortion occurs out-of-state,” Mitchell said in a statement. “They can sue anyone who paid for the abortion, anyone who aided or abetted the travel, and anyone involved in the manufacture or distribution of abortion drugs.”
Molly Duane, a senior staff attorney with the Center for Reproductive Rights, which is representing the woman, said abortion foes want to use Davis’s filing to sow confusion and terror.
“It has never been the case that a state can prohibit its citizens from leaving the state. That would be absurd,” Duane said. “This is a coordinated fear campaign. If they can’t prohibit them from traveling, well, then they want to scare them, and make them think that they’re doing something wrong.”
Since Roe fell, several states, including Colorado, have enacted so-called “shield laws” to generally protect people from being investigated or prosecuted by states that ban abortion. It is not yet clear what role, if any, Colorado’s shield law may play in Davis’s case.
Court records in Davis’s case also repeatedly cite the Comstock Act, a 19th-century anti-vice law that, in the eyes of some abortion opponents, bans the mailing of abortion-related materials nationwide. Such an interpretation of the Comstock Act, which the Biden administration disagrees with, would result in a de facto national ban on abortions, because clinics rely on the mail to obtain the drugs and equipment they need to do their jobs.
Davis is waiting for a ruling from the state district court, which the Center for Reproductive Rights may in turn appeal. If the case proceeds, Mitchell wants to depose the woman who had the alleged abortion and others connected to it, with questioning about “all sources of financial support for the abortion”, and to obtain records of any communications with abortion providers and funds. Mitchell has previously asked Texas abortion funds for information about recent abortions that they have “assisted or facilitated in any way”.
Although Duane is steadfast in her belief that Texas law does not prohibit people from helping one another leave the state for abortions, she still fears for the future.
“Nothing is safe. No one is safe,” she said. “I cannot guarantee anyone, really, that they won’t be pursued for harassing or frivolous legal actions.”
