The month after the Supreme Court overturned Roe v. Wade, a mother of two in Texas who had filed for divorce from her husband discovered she was pregnant. Determined not to have another child and worried that her husband would try to use the pregnancy to make her stay with him, she did what many of us would do and turned to two friends for help.
In text messages that are now part of a chilling lawsuit, her friends responded with warmth and solidarity. One told her about Aid Access, an organization based in Vienna that ships abortion pills to people in places where abortion is banned. Then the same friend texted that she had found someone nearby who could supply the medication. She and another friend both offered to let the woman go through the abortion at their homes. “Mistakes happen,” the second friend texted. “You can’t spiral. Hopefully this is the slap in the body that you need to remove yourself from him.”
Now the ex-husband, Marcus Silva, is getting his revenge. Last week, he filed a wrongful-death lawsuit against his ex-wife’s two friends and the woman who allegedly provided the abortion pills his ex-wife took, seeking a million dollars from each of them. (Because the suit seems likely to send abuse their way, I’m not including the women’s names.)
Silva’s case appears to have the backing of the anti-abortion movement, since he’s being represented by Jonathan F. Mitchell, the former Texas solicitor general who devised Texas’ abortion bounty law, which gives private citizens the power to sue others for “conduct that aids or abets the performance or inducement of an abortion.” His legal team also includes Briscoe Cain, a prominent abortion opponent in the Texas House, and three members of the Thomas More Society, a right-wing Catholic legal organization. “Assisting a self-managed abortion in Texas,” says the lawsuit, is “an act of murder.”
This case has several harrowing implications. First, it makes particularly vivid the way abortion prohibitions give men control over women. In the text messages reproduced in the lawsuit, Silva’s ex-wife wrote, of her pregnancy, that she knew Silva would “use it against me” and “try to act like he has some right to the decision.” Given that he is now suing her friends, she seems to have understood him well. What she might not have understood is how much political power he’d be able to muster on behalf of his patriarchal prerogatives.
According to Melissa Murray, a law professor at New York University, it’s significant that the lawsuit wasn’t filed under Mitchell’s abortion bounty law. Instead, it’s a wrongful-death case, which Murray sees as a bid to win judicial recognition of fetal personhood in Texas law.
“Texas may prohibit abortion, but not on the grounds that it is a species of homicide — that is, the killing of a person,” she said. Texas lawmakers have, in the past, introduced legislation classifying abortion as homicide, which would make either having an abortion or performing one punishable by the death penalty, but the bills have never succeeded. If the idea of fetal personhood is normalized in the law through wrongful-death cases like Silva’s, applying murder statutes to abortion becomes easier to imagine. “Jonathan Mitchell is playing five-dimensional chess with this,” Murray said.
It’s hard to say whether the lawsuit has a chance, since that will depend on which judge hears it. Joanna Grossman, a visiting law professor at Stanford, found the filing absurd, saying, “It’s not written in a way to convince anybody about a serious legal argument.” But far-right judges don’t necessarily need serious legal arguments. After all, in another Texas lawsuit, we’re waiting to see whether a federal judge appointed by Donald Trump takes the unprecedented step of revoking F.D.A. approval of the abortion drug mifepristone. There are lots of judges, said Grossman, “just doing the bidding of the anti-abortion movement.”
Whatever happens legally, the message to women in states with abortion bans is unmistakable: You’re on your own. “No one is going to follow whether this ex-husband collects damages for this abortion,” said Grossman. They’re just going to see the news that the women accused of helping Silva’s ex-wife were publicly humiliated and put in grave financial jeopardy, and they’re going to think twice about confiding in their friends about an unwanted pregnancy.
“Mitchell’s trying to get at the whole information network, so that people really, truly are isolated emotionally and can’t trust anybody,” said Grossman.
The lawsuit includes a photograph of Silva’s ex-wife and her friends dressed up like characters from “The Handmaid’s Tale” for Halloween last year. It’s presented as evidence that they “celebrated the murder,” but I suspect it was included to make them identifiable and punish them for their cheekiness.
It turns out the women’s in-joke was more on the nose than they could have realized. In the novel, women aren’t allowed to communicate with one another except in pious stock phrases, and it takes months for the protagonist to realize that her seemingly meek shopping partner, Ofglen, is a rebel. “Don’t say a word,” Ofglen warns. “In any way.”
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