A Texas man is suing those who helped his ex-wife get an abortion. What happens if he wins?

A man is suing three women for wrongful death, alleging they helped his now ex-wife end her pregnancy

By Nicole Karlis

Senior Writer

Published March 16, 2023 5:30AM (EDT)

 (Getty/Mandel Ngan)
(Getty/Mandel Ngan)

A Texas man is suing three women for wrongful death, claiming they allegedly helped his now ex-wife end her pregnancy by undergoing a medication abortion via the abortion pill.

Marcus Silva — the plaintiff of the lawsuit filed in Texas's Galveston County state court last week— alleges that under Texas law, helping his ex-wife, Brittni Silva, obtain an abortion is akin to aiding a murder. Silva further argues that the surviving parent — in this case, himself — has the right to sue under the state's wrongful-death statute.

"Abortion is a criminal offense in Texas unless the life of the mother is endangered, and the abortion of baby Silva occurred after Dobbs v. Jackson Women's Health Organization which eliminated any court-invented license to flout or disregard the state's abortion laws," the lawsuit states. "Assisting a self-managed abortion in Texas is also an act of murder."

The word "murder" is used in some variation 27 times in the lawsuit. 

Notably, Marcus is not pursuing any claims against his ex-wife. As a pregnant person, she is exempt from civil and criminal liability under Texas law. The lawsuit is seeking over $1 million in damages, plus legal fees, from the three confidants who helped her obtain the abortion pill. In regards to potential criminal charges following the civil suit, that will be up to the district attorney. However, the lawsuit claims that the "manufacturer of the abortion pill" will also be added as a defendant once identified in the discovery process, in addition to "any other person or entity involved in the distribution of the abortion pills that Brittni used is jointly and severally liable for the wrongful death of baby Silva."

The lawsuit includes screenshots of text messages to build the case for the wrongful death lawsuit. From the text messages, the lawsuit alleges that the friends helped Brittni look for an out-of-state clinic and sent her a link to Aid Access, which mails abortion pills to people who are unable to access them. Ultimately, she was allegedly connected with a third woman who allegedly offered to provide the pills. The lawsuit is "unprecedented" since the Supreme Court overturned Roe v. Wade, and likely a move to scare people from helping their friends and family obtain abortion pills, legal experts told Salon.

"This is a real attempt to chill people helping others get abortion pills — and especially with the million dollar price tag, that's there to sensationalize the case and make it seem like if you help your friend we're going to bankrupt you," David S. Cohen, a professor of law at Drexel University's Kline School of Law, told Salon. "But the case is unprecedented, and under Texas law, it is not against the law to self manage an abortion, so I think there's a serious legal question under Texas law whether this is wrongful death." Cohen noted that Brittni Silva's taking the pills itself likely couldn't be constituted as a crime, merely the act of helping her obtain them.

"This is a real attempt to chill people helping others get abortion pills."

Seema Mohapatra, a professor of law at Southern Methodist University's Dedman School of Law, agreed that this lawsuit is being used to scare people.

"It's absolutely a scare tactic — the public statements and the wording of the complaint is so over the top, the pictures, the screenshots, it's just such an invasion of privacy," Mohapatra told Salon. "The point is to scare people, and it's going to force people to be in secrecy and not have the support of their communities."

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Cohen said that plaintiffs will likely try to make the case that this is a wrongful death suit akin to a situation in which someone overdoses from a drug. 

Wrongful death is "defined differently in every state," Cohen explained, but typically the legal term is used in cases where "close family members and those who are related" want to "sue someone who has wrongfully caused the death of someone you care for or are related to." 

Thus, Marcus Silva's claim is that "this was his kid, and someone caused its death, so thus it's wrongful," Cohen added. 

It is not unusual for a parent to sue someone else over the wrongful death for their child. But what is unusual is that in the case of this lawsuit, the clump of cells that constitutes the fetus is the "child" in question.

"The Texas wrongful death statute says that a person includes the fetus, so that part of the statute already establishes personhood in this context," Cohen explained. "But I think the question of whether the death was wrongful is the issue, because like I said she did not violate any Texas law by taking these pills."

"You can see how the threat of these kinds of lawsuits can be used to intimidate pregnant people." 

Will the case hold any merit in court? Cohen said civil lawsuits can take years before there's any resolution to a case, especially if there are appeals.

Regardless of how long it takes, the filing itself could be enough to scare many Texans, and have horrific consequences on pregnant women in Texas.

"You can see how the threat of these kinds of lawsuits can be used to intimidate pregnant people [into] staying in their relationships, and basically silencing them," Mohapatra said.

Mohapatra said she sees no legal basis for the lawsuit either, but she didn't trust the judge would rule that way. "Because of how people are picking where they litigate, because of the way that the federal benches have been stacked, it's not super clear the way they're going to come out even though legally this shouldn't be a question," she noted. 

By Nicole Karlis

Nicole Karlis is a senior writer at Salon, specializing in health and science. Tweet her @nicolekarlis.

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Abortion Brittni Silva Female Health Health Medication Abortion Reporting Reproductive Rights Texas