Can a person who helps a Texas woman get a medication abortion in that state be tried for wrongful death?
A lawsuit filed March 10 by Galveston County resident Marcus Silva makes that claim. Silva is asserting that under Texas’ wrongful-death law, three women who assisted his ex-wife in obtaining abortion pills have “committed the crime of murder and can be sued.” He seeks $1 million in damages from each of the three. He also states in his complaint that he intends to sue the manufacturer of the drug when its identity is known.
The lawsuit is one of the first major challenges under a state abortion ban since the U.S. Supreme Court overturned Roe v. Wade last June.
Silva and his wife divorced early this year, right before the lawsuit was brought. The couple has two living daughters that were not the basis of the lawsuit. Silva alleges that in July 2022, while the couple were still married, his wife became pregnant with a third child, but concealed it from him. He further alleges that two of the other women he is suing exchanged text messages with her, providing information about how and where she could get an abortion pill—one that can be done at home, and does not involve a procedure by a doctor. The third woman in the suit allegedly arranged for the delivery of the pills.
The Basis for the Lawsuit
Earlier, in 2021, Texas gained notoriety as the first state to pass a “vigilante law” that gives citizens the power to collect $10,000 “bounties” if they successfully identify anyone who aids and abets abortions by physicians. The law, which also restricted abortions after just six weeks of pregnancy—sooner than many women know that they are pregnant. The law was immediately challenged by abortion advocates, and eventually reached the U.S. Supreme Court. In December of that year, SCOTUS issued the contentious decision of Whole Women’s Health v. Hellerstedt, where a 5-4 majority upheld the Texas law. This decision set the stage for the overturn of Roe v. Wade six months later, in the case of Dobbs v. Jackson.
Pregnant women who self-administer abortion pills can’t be sued under any state laws. While Silva could have pursued bounties under the vigilante law by identifying the three women, he is claiming that he can sue them under a different, and newer, Texas abortion law that could provide far greater compensation.
Formerly House Bill 1280, this law is known as a “trigger law” because it is one of many state laws that were unconstitutional under Roe v. Wade but triggered into effect by the Supreme Court’s overturn of Roe. Last summer, HB 1280 reinstated the state’s pre-Roe ban on nearly all abortions. Silva claims that helping someone get an abortion qualifies as murder under the trigger law’s reinstatement of the pre-Roe ban.
A Growing Fight
The case is drawing significant attention because medication abortion has become a major front in the fight between abortion-rights and anti-abortion groups. Abortion-rights advocates have escalated efforts to ship the drugs mifepristone and misoprostol into states with abortion bans.
These pill pipelines in the U.S. mail are difficult to trace and present challenges for the anti-abortion movement, but those groups are fighting back. Texas Right to Life, the biggest anti-abortion group in the state, has created a team to investigate who might be distributing the abortion pills illegally. The group Students for Life of America has launched an effort to monitor water supplies in several cities to detect contaminants they claim come from medical abortions.
Legal experts disagree on the lawsuit’s chances. Joanna Grossman, a visiting law professor at Stanford, said that the complaint was “not written in a way to convince anybody about a serious legal argument.” But New York University law professor Melissa Murray isn’t so sure, saying that the suit’s emphasis on wrongful-death law is a serious attempt to win judicial recognition of “fetal personhood” in Texas law.
Meanwhile, it’s important to note that Silva’s lawyer is Jonathan F. Mitchell, the former Texas solicitor general who devised the state abortion bounty law. So it appears that Silva’s lawsuit already has at least some backing from anti-abortion legal experts.
Sentencing people who aid and abet abortions on murder charges is a big step, even in Texas. But if fetal personhood becomes normalized in the law, murder sentences for them may not be far off.
More Changes to Abortion Laws on Tap for 2023 (FindLaw’s Courtside)
The Practical Impact of Dobbs v. Jackson Women’s Health (FindLaw’s Federal Courts)
How Citizen Enforcement Provisions Became a Legal Movement (FindLaw’s Practice of Law)
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