By the time she finally filed for divorce from her husband in May 2022, Brittni Silva, a Texas mother of two, had allegedly already called the cops on him at least twice. According to people who knew the couple, Brittni’s husband, Marcus Silva, was mean and manipulative: When Brittni was at work (Silva was unemployed), he would accuse her of staying out for too long, of having an affair. When she was home, he would berate her, following her from room to room. He demanded to look through her phone, and when she refused, he would do so anyway. According to women who were there, in April 2022 Silva got extremely drunk at a work party for Brittni. In front of her co-workers, the witnesses say, he called her a slut, a whore, and an unfit mother. He told her she was worthless.
Sometimes Brittni believed it: In court filings that include text messages from Brittni to her friends, she describes her distress at Silva’s abuse, and repeatedly calls herself stupid.
This controlling behavior didn’t stop during the divorce proceedings. Before she moved out, Silva went digging through Brittni’s phone and purse, and discovered that she was pregnant and seeking an abortion. Her two best friends, Amy and Jackie, had allegedly offered to help her get abortion pills. Silva got in touch with Jonathan Mitchell, the architect of Texas’ bounty-hunter abortion ban, who helped Silva file a lawsuit. It made a rather extraordinary claim: He sued his ex-wife’s two friends for wrongful death, demanding $1 million from each, claiming that the terminated pregnancy was a child, his child, and that they had caused its “murder.”
Amy and Jackie have now turned the tables on Mitchell and Silva. In an explosive counterclaim filed on Monday, the women allege that Silva not only knew about the abortion before it happened but in fact knowingly deceived his wife: He didn’t just find text messages when he was snooping. He found the abortion pill itself while searching her purse, then, according to the counterclaim, surreptitiously put it back—allowing her to have the abortion without realizing that he knew about it so he could to use the threat of liability to coerce her into staying with him. This revelation completely undermines the original lawsuit, absolving Amy and Jackie of wrongdoing. It opens up Silva to serious legal liability. And it confirms something that has been clear from the start: This case is not about avenging the “murder” of a “baby.” It is about transforming Texas’ draconian abortion laws into a tool of spousal abuse.
Silva is not the first man to use the courts to further his alleged abuse of a woman who was trying to escape his control. Domestic violence experts have coined the term “litigation abuse” to describe the tactic of using protracted, frivolous, and repeated lawsuits, unnecessary motions, and invasive, harassing discovery demands as a means of prolonging contact with victims and inflicting further distress and expense on them. Frequently, abusive litigation is pursued in the aftermath of a victim’s successful attempt to leave the relationship. It has the effect of maintaining the abuser’s control, and of punishing the victim for trying to escape it. This is exactly the strategy Silva deployed.
Now, with abortion bans on the books, abusers have a powerful new ally in their quest to inflict suffering, isolation, and private control over women: the state. Every abuser in a state with a ban suddenly has the opportunity to impregnate his victim as a means of forcing her into a permanent connection to him—either through a child, if she cannot obtain an abortion, or through the blackmail and threat of legal retaliation if she does. Stay with me, he can say to her, or I’ll still control your movements, your speech, your money, your body, and your connections anyway. Stay with me, or I’ll turn you in to the cops.
Monday’s counterclaim illustrates, in painstaking detail, exactly how Silva—aided by Mitchell—allegedly deployed this tactic. It was only after Brittni’s abortion was complete that Silva revealed he knew about the plan and, according to the lawsuit, threatened to turn her in if she didn’t submit to his continued abuse. He even showed the police photographs of messages discussing the possibility of an abortion. “Once I finally got home with the girls he had been drinking and he told me that he knew,” Brittni texted one friend. “He’s using it against me.” In another message, she wrote, “Now he’s saying if I don’t give him my ‘mind body and soul’ until the end of the divorce, which he’s going to drag out, he’s going to make sure I go to jail for doing it.”
Legally, it wasn’t his wife whom Silva sought to punish: It was the friends who helped her escape him. This is another harrowing but intended aspect of the state abortion bans that attributes liability and criminal penalties not to the abortion patient but to those who helped her: It makes solidarity among women a legal risk. Jackie and Amy did for Brittni what anyone would hope to have done for them in that situation. They acted with loyalty, principle, and courage. They acted as friends. These are exactly the actions that Texas’ law, and Silva’s suit, hope to punish.
Silva targeted Jackie and Amy, rather than his ex-wife, for a simple reason: Texas law does not actually prohibit a woman from terminating her own pregnancy through medication abortion. Brittni’s actions were perfectly legal. So Silva went after the friends who helped her, accusing them of facilitating a “wrongful death” by committing “the crime of murder.” This theory was always shaky: If self-managed abortion is not illegal, then any resulting “death” is not wrongful; if the “death” is not wrongful, then no one can be held liable for abetting it.
The counterclaim points out another flaw in his argument: Silva himself “is responsible for the alleged injury for which he seeks to recover.” He “knew that Brittni planned to terminate her alleged pregnancy and acquiesced in accepting Brittni’s actions,” so “it would be unconscionable to permit him to benefit by changing his position now.” His claims, in short, are barred “by unclean hands,” because he effectively entrapped his estranged wife—covertly discovering her plan to terminate the pregnancy, then allowing her to go through with it for the express purpose of blackmailing her into staying with him.
What happens now to Silva? While nothing that Brittni, Jackie, or Amy did was illegal, his own alleged conduct most assuredly was. According to the counterclaim, he repeatedly accessed Brittni’s password-protected phone without her consent, reading messages between the women that were meant to be private. Under Texas law, that’s an actionable invasion of privacy. Silva’s alleged snooping also violates Texas’ Harmful Access by Computer Act, which prohibits unauthorized access of any computer (including a smartphone). By showing photographs of Brittni’s text messages to the police, Silva inadvertently “admitted that he committed a crime in violation of Texas Penal Code.” State law empowers the women to sue over this malfeasance as well, and collect damages plus attorneys’ fees. There is a good chance that this sordid case will now end in a victory for Silva’s targets, or at least a dismissal that forestalls a ruinous, million-dollar judgment against them.
Not every victim of an abuser’s harassment will be so lucky. There are undoubtedly many abusers who, at this moment, are leveraging abortion bans to prevent their pregnant partners from leaving. Men use the courts to wield these laws like a weapon, but the mere existence of a ban deprives countless women of the ability to escape a relationship by ending a pregnancy that would otherwise shackle her to her abuser. These were always who was going to reap the benefits of abortion bans: drunken husbands, violent boyfriends, domineering fathers, and all the other varieties of male tyrants who enact the private authoritarianism called domestic abuse. By abolishing reproductive rights, states like Texas have given these men even more power to control the lives of women.