Imagine being so afraid of the father of your two daughters that—having told him you’re divorcing him, and then subsequently suspecting you are pregnant—you feel you have to take the pregnancy test at work. As you later confess to two friends, via text: “I trashed it in a big can at work like outside in a bag. I didn’t take that home.” Imagine that the man who’d gotten you pregnant was such a bully, one of your friends would text back: “I just worry about your emotional state and he’ll be able to snake his way into your head.”
Imagine deciding that you must terminate this pregnancy, and you must do so while the father of your daughters remains unaware. You tell your two friends, and they caution that “you need to remove yourself from him,” because if he finds out about the pregnancy, he will “try to act like he has some right to the decision.” The sentiment is articulated by one of your friends, but shared by you, so thank goodness that you have both of them to help you understand your legal situation and eventually help you access a medication abortion that safely terminates your pregnancy.
And now imagine that your now-ex-husband—having discovered all this—decides to align himself with some of the most powerful opponents of reproductive rights in the country in order to punish you.
That’s what Marcus Silva is doing to his ex-wife right now, through a lawsuit filed in Texas state court on March 9. (We will call her Jane Doe to protect her privacy, though the suit does not.) He is represented by Jonathan Mitchell, the former Texas solicitor general who devised S.B. 8, Texas’ vigilante abortion ban; Briscoe Cain, a Republican member of the Texas Legislature; and the far-right Thomas More Society. This team is demanding more than $1 million in damages from each of the two friends Jane Doe texted and talked with as she planned and carried out her abortion. It demands the same from the Houston woman who procured the pills. (The Texas Tribune reports that they intend to add the manufacturers of the pills to the suit later.) It is doing this through a wrongful death suit—indeed, these lawyers allege that Jane Doe, her friends, and the Houston woman are all “murderers.”
Silva can’t punish Doe directly. A pregnant person who self-administers abortion pills cannot be prosecuted under Texas law, even when she was the one to procure the medication, ingest it, and allegedly terminate the pregnancy. And he can’t use S.B. 8, the Texas vigilante abortion ban enacted in 2021, because it targets only those who aid or abet a physician licensed in Texas.
Because of these restrictions, Silva is taking a different approach. In his civil suit, Silva cites three sections of the Texas Penal Code to claim that Doe’s friends conspired to kill a human being. Texas has not passed a fetal personhood law, but the state’s wrongful death statute allows a plaintiff to sue any person who causes the death of “an individual” through any “wrongful act.” It clarifies that, for the purposes of the law, an “individual” includes “an unborn child at every stage of gestation from fertilization until birth.” Furthermore, procuring and supplying abortion pills is strictly prohibited by the state’s draconian abortion bans. Thus, Silva’s legal team argues that Doe’s friends are liable for the wrongful death of the terminated fetus.
On the surface, this argument makes some sense. Upon closer scrutiny, it falls apart. There is a hole at its center: Texas law expressly states that an individual does not commit a criminal act when she terminates her own pregnancy. The state’s abortion bans, homicide statute, and assault statute all declare that self-managed abortion is not a criminal act and cannot be punished as one. So even if Doe’s fetus “died,” for purposes of Texas law, its death was not “wrongful,” so no one can be held liable for abetting it. As Joanna Grossman, a visiting professor at Stanford Law School, told Slate: “If there’s no wrongful death, then there’s no wrongful death liability.”
“Jonathan Mitchell knows he’s not going to win this case,” Grossman said. “It’s all smoke and mirrors.” (It is a perverse irony of the litigation that the defendants earnestly tried to give Doe accurate legal advice while Mitchell is deliberately misusing the law to terrorize them for doing just that.) What, then, is the purpose of this lawsuit? It seems the suit has several extralegal goals, all of which are rooted in a brazenly misogynistic desire to let men manipulate the legal system to control women’s bodies and keep them trapped in dangerous relationships.
One aim is certainly to set a precedent that helps isolate pregnant people through terror and surveillance. The fear of winding up ensnared in a multimillion-dollar lawsuit that ruins the lives of one’s closest friends is certainly a good motivator. Mitchell, Cain, and the Thomas More lawyers want all pregnant Texans to understand that they are being watched —in this case, by a vindictive ex—and will be reported to the state if they seek to terminate a pregnancy. They are never safe from men who will wield litigation as a tool to punish women who attempt to escape a manipulative partner. This is spousal abuse via lawsuit. Indeed, in 1992, the Supreme Court refused to allow for mandatory spousal notification precisely because it could be used as a cudgel to abuse and torment women. SCOTUS reversed that decision when it overruled Roe, though, and this complaint is the inevitable result of that reversal: It attempts to assert that every husband should now be granted the right to terrorize pregnant people and bankrupt their friends.
Another, related goal is to make it clear that anyone offering advice about abortion may be bankrupted in a court of law. Their texts can and will be used against them, and they will be defamed as “murderers” in a highly public lawsuit. Silva’s legal team wants to ensure that everyone is too terrified to help vulnerable pregnant people with legal advice, information, and assistance. They want to transform Texas—and, eventually, the rest of the country—into a surveillance state where friends and family are too frightened to discuss abortion for fear of being snitched upon and destroyed in court.
That, of course, was the goal of S.B. 8, which empowered random strangers to sue anyone who dared to “aid or abet” a clinical abortion. Now Mitchell is broadening his dragnet to include medication abortions, placing a bounty on the head of anyone who helps a pregnant person obtain these pills.
The suit doesn’t just threaten the women with legal action. It also attempts to shame them—gratuitously including a photograph of the defendants, plus Doe herself, in Handmaid’s Tale costumes last Halloween, accusing them of having “celebrated the murder by dressing up in Handmaid’s Tale costumes for Halloween.” (As a bonus, this puts their faces, alongside their names, in the public record.) It uses the word “murder” and its variants 27 times to describe their conduct.
If the suit is so wildly outlandish—and offensive—why are we rewarding the bullies with the attention they seek? The answer is twofold. First, it is important to understand that, unless Texas courts radically alter Texas law, this suit is likely dead on arrival, thanks to the fact that the state still does allow women to terminate their own pregnancies. It’s so bad that in a more just world, Mitchell would face sanctions for filing such a frivolous complaint.
Second, the suit serves as a window. It’s crucial to see where the anti-abortion movement is heading next now that Roe v. Wade has fallen. Their quest to end abortion has been undercut by the ubiquity of abortion pills, which are very easy to procure online and to ship across state and international lines. While some lawyers fight to ban these drugs nationwide, others, like Mitchell, seek to ruin the lives of anyone who facilitates their delivery to a pregnant person or offers advice on how to procure them. In other words, S.B. 8 was only the beginning of the anti-abortion vigilantism. The lawyers hellbent on obliterating all access to reproductive care will not rest until anyone who so much as texts a friend about abortion must fear that they could be defamed as a murderer.