The First “Wrongful Death” Case for Helping a Friend Get an Abortion

The lawsuit’s long game — beyond instilling fear — is establishing fetal personhood, the holy grail of the anti-abortion movement.

Demonstrators during a national walk out in support of abortion rights at the University of Texas in Austin, Texas, U.S., on Thursday, May 5, 2022. For decades the fight to end abortion in America has been waged over Roe v. Wade. With the Supreme Court poised to overturn the landmark decision that legalized a womans right to choose, the fight to stop abortion is going to become a fight about a pill. Photographer: Sergio Flores/Bloomberg via Getty Images
Demonstrators during a national walk out in support of abortion rights at the University of Texas in Austin on May 5, 2022. Photo: Sergio Flores/Bloomberg via Getty Images

“Your help means the world to me,” a grateful Brittni Silva texted her best friends, Jackie Noyola and Amy Carpenter, last July. “I’m so lucky to have y’all. Really.”

A month after the U.S. Supreme Court overturned Roe v. Wade, the Houston mother of two experienced an unplanned pregnancy with her now ex-husband and allegedly sought abortion care with the help of her friends. For nearly a year, Texas had imposed a six-week abortion ban, and a full “trigger” ban would be enacted in just a few weeks. Silva needed to act fast and extricate herself from what appeared to be an emotionally unhealthy relationship with a husband she would go on to divorce in February. Her friends offered their unwavering support.

“I just worry about your emotional state,” wrote Carpenter, who had advocated that Silva “remove” herself from her husband, according to court documents. “He’ll be able to snake his way into your head.”

“I know either way he will use it against me,” Silva said of her pregnancy. “If I told him before, which I’m not, he would use it as [a way to] try to stay with me. And after the fact, I know he will try to act like he has some right to the decision.”

“Delete all conversations from today,” Noyola wrote. “You don’t want him looking through it.”

Not only did Marcus Silva access the private conversations his ex-wife had with her friends, he also filed an unprecedented lawsuit in March accusing Carpenter, Loyola, and Texas abortion rights activist Aracely Garcia of wrongful death, alleging the trio “conspired” to help his ex-wife obtain medication to terminate her pregnancy with a self-managed abortion. Attorneys for Silva also hope to sue “into oblivion” the manufacturer of the abortion pills procured. The complaint, filed in state court in Galveston County, Texas, seeks a stunning $1 million in damages from each woman.

In the first lawsuit of its kind since Roe was struck down, the legal filing, riddled with sensitive information, instills a chilling effect on anyone who wishes to assist in abortion care, raising the threat of surveillance and public scrutiny, legal experts say. Filed by an influential conservative legal figure, the lawsuit also offers a window into the anti-abortion movement’s growing push for fetal personhood.

Anti-abortion protesters pray as demonstrators gather outside the Houston, Texas, City Hall during a Bans Off Our Bodies rally on May 14, 2022. - Thousands of activists are participating in a national day of action calling for safe and legal access to abortion. The nationwide demonstrations are a response to leaked draft opinion showing the US Supreme Court's conservative majority is considering overturning Roe v. Wade, the 1973 ruling guaranteeing abortion access. (Photo by Mark Felix / AFP) (Photo by MARK FELIX/AFP via Getty Images)

Anti-abortion protesters pray as demonstrators gather outside city hall in Houston, during a “Bans Off Our Bodies” rally on May 14, 2022.

Photo: Mark Felix/AFP via Getty Images

An Influential Figure

The lawsuit claims that aiding a self-managed abortion is tantamount to murder under state law, allowing Marcus Silva to bring a wrongful death case. Texas law specifically exempts the abortion patient from facing prosecution, leaving Brittni Silva out of the legal crosshairs.

The alleged abortion occurred prior to enactment of the state’s criminal trigger ban, which makes performing an abortion a felony punishable by up to life in prison. Marcus Silva’s attorneys appear to rely instead on Texas’s pre-Roe criminal ban, a 1925 statute that penalizes anyone who “furnishes the means for” abortion with up to 10 years in prison. The status of the antiquated law is murky. In July, the Texas Supreme Court temporarily ruled in a case filed by abortion providers that the law could only be enforced civilly. Earlier this year, U.S. District Judge Robert Pitman ruled that the law was obsolete, as it had been repealed by implication following Roe, a finding that reaffirmed a 2004 5th U.S. Circuit Court of Appeals ruling.

Some legal experts consider the lawsuit’s argument highly tenuous. Since Brittni Silva is immune from prosecution, her alleged abortion shouldn’t be considered a crime, leaving no basis to bring a wrongful death suit.

“For this to be wrongful death, you would have to have committed that criminal act, and because the pregnant person cannot be charged for homicide for her self-managed abortion, it’s not criminal,” said Joanna Grossman, a gender and family law professor at Southern Methodist University. “So there is no reason to think what her friends did to help is facilitating crime.”


Supreme Court Ruling on Texas Abortion Law Opens Door to Copycat Schemes Everywhere

The suit might be easy to write off if it weren’t for the figure behind it: Jonathan F. Mitchell, former Texas solicitor general and architect of the state’s six-week abortion ban, Senate Bill 8. Mitchell filed the complaint along with Republican state Rep. Briscoe Cain and the Thomas More Society, a religious-right law firm known for pushing anti-abortion views through litigation.

Dubbed a “brilliant legal mind,” Mitchell has a prolific background litigating right-wing causes, including anti-LGBTQ+, anti-union, and anti-abortion lawsuits. A former law clerk for the late U.S. Supreme Court Justice Antonin Scalia, Mitchell has ties to the Federalist Society, a group aligned with the court’s right-wing bloc. Mitchell’s legal crusades are often successful. He recently represented an anti-LGBTQ+ Texas activist who struck down a nationwide Obamacare provision that required insurance companies to cover a range of preventive care services, including HIV prevention measures such as PrEP.

While reticent in the public spotlight, Mitchell has developed a reputation as a powerful actor behind the scenes, namely for crafting the novel legal provision at the heart of Texas’s S.B. 8. Enacted in 2021 as a result of inaction by the U.S. Supreme Court, the law allows private citizens to act as vigilantes and sue abortion providers or anyone who “aids or abets” the procedure.

Mitchell’s legal efforts have often laid the groundwork for a larger plan: In 2019, he helped mastermind a string of local “sanctuary for the unborn” ordinances, which became the blueprint for S.B. 8, compelling cities to declare themselves abortion-free by imposing a similar civil enforcement mechanism. The ordinances — which have proliferated in 65 towns across the U.S. — also sought to revive the Comstock Act, an archaic law that has emerged as the next weapon in the arsenal of the anti-abortion movement.

DALLAS, TEXAS - JANUARY 15: Pro-life demonstrators march during the "Right To Life" rally on January 15, 2022 in Dallas, Texas. The Catholic Pro-Life Community, Texans for Life Coalition, the Catholic Diocese of Dallas, and the Diocese of Fort Worth North hosted the Texas March for Life rally where people gathered to instigate the overturning of Roe v. Wade, a Supreme Court decision that permitted states throughout the country in legalizing abortion under certain regulations. The 49th anniversary of the decision to legalize abortion falls on January 22. (Photo by Brandon Bell/Getty Images)

Anti-abortion demonstrators march during a “Right to Life” rally on Jan. 15, 2022, in Dallas.

Photo: Brandon Bell/Getty Images

Personhood Is the “Long Game”

Central to Mitchell’s controversial and “dangerous” ideology is his belief that old, unenforced laws never really die. Only legislatures that enacted laws can formally repeal them, he argues. In addition to seeking to resurrect the century-old Texas ban, Mitchell has signaled an interest in reviving the Comstock Act in Marcus Silva’s wrongful death suit.

The dormant 1873 anti-obscenity law bars any materials associated with abortion care — from pills to surgical equipment to information pamphlets — from shipment by mail, providing a possible foundation for a nationwide abortion ban. Initially intended to ban contraceptives, the law has not been enforced since the 1930s and has seen its scope narrowed over time. Violations can result in up to 10 years in prison.

In a memo issued last year, the Department of Justice clarified that the 150-year-old law did not prohibit mailing abortion medication to patients in states where abortion remains legal, yet that has not deterred anti-abortion actors. In the wrongful death suit, Mitchell argued that the Biden memo was “not entitled to deference” from state courts and that anyone involved in the distribution of the pills Silva obtained — including the manufacturer — committed a “wrongful act” in violation of Comstock. Mitchell doubled down on the push to revive Comstock in another recently filed suit, asking a New Mexico judge to declare that the outdated law supersedes any state law protecting abortion access.


“Sick and Twisted”: Women Sue Texas Over Harrowing Medical Episodes Caused by Abortion Bans

Signaling a coordinated campaign among anti-abortion conservatives, Texas-based U.S. Judge Matthew Kacsmaryk also exhibited eagerness to revive the Comstock Act in his recent ruling to suspend the Food and Drug Administration’s approval of the abortion drug mifepristone, as did the Trump-appointed justices of the 5th U.S. Circuit Court of Appeals who partially upheld Kacsmaryk’s ruling. While the U.S. Supreme Court halted restrictions on the drug from taking effect in April, sending the case back to the 5th Circuit for review, it remains to be seen how the appellate court — and possibly the Supreme Court down the line — might handle the issue of Comstock. Since 2019, the anti-abortion group Alliance Defending Freedom, a plaintiff in the mifepristone case, has paid Mitchell’s Austin-based law firm at least $92,000 for services listed as “sanctity of life” and “religious liberty,” according to IRS filings.

Mitchell’s broader ambition in the wrongful death lawsuit may be judicial recognition of fetal personhood, or classifying fetuses as equal to people with protected constitutional rights, according to Mary Ziegler, abortion historian and law professor at the University of California, Davis. Comstock, while a parallel strategy, helps push the similar view that all abortion violates federal criminal law. Fetal personhood has been the defining end goal of the anti-abortion movement since the 1960s, and with Roe’s demise, extremists have an unprecedented opportunity to achieve it.

“The lawsuit gets the ball rolling on the idea of how to bring fetal rights claims forward.”

Mitchell’s suit, Ziegler said, helps establish a personhood trend that the Supreme Court’s conservative supermajority could “seize” on. It “advances a particularly chilling vision,” she said: shaming and intimidating people who end pregnancies, incarcerating anyone who helps secure abortion care, and vindicating the will of men who oppose it.

“The lawsuit gets the ball rolling on the idea of how to bring fetal rights claims forward. It’s part of a long game,” Ziegler said. “Mitchell is hoping this builds to something bigger, and ultimately adds precedent to the recognition of fetal personhood by the courts.”

Two bills filed by Texas lawmakers this session appear to push for personhood; they would roll back criminal and civil protections for self-managed abortion and classify a fertilized embryo as an “individual,” opening the door for abortion to be treated as capital murder, punishable by the death penalty. The bills are awaiting committee hearings before the legislative session ends on May 29.

A protester holds up a box labeled "abortion pills" on Saturday, April 15, 2023 in New York, NY. on Saturday, April 15, 2023 in New York, NY. Abortion rights activists throughout the United States rally against the controversial decision of Judge Matthew Kacsmaryk of the U.S. District Court in Amarillo, Texas, who overruled the FDA approval of abortion medication mifepristone. (Photo by Olga Fedorova / SOPA Images/Sipa USA)(Sipa via AP Images)
Pro-abortion rights activists hold a sign that spells "Fuck Texas" in front of New York Public Library on Saturday, April 15, 2023 in New York, NY. Abortion rights activists throughout the United States rally against the controversial decision of Judge Matthew Kacsmaryk of the U.S. District Court in Amarillo, Texas, who overruled the FDA approval of abortion medication mifepristone. (Photo by Olga Fedorova / SOPA Images/Sipa USA)(Sipa via AP Images)

Photos: Abortion rights demonstrators rally in New York City against the decision of Judge Matthew Kacsmaryk of the U.S. District Court in Amarillo, Texas, who overruled FDA approval of the abortion medication mifepristone on April 15, 2023. Olga Fedorova/SOPA Images/Sipa USA

A Chilling Effect

Recently revealed documents call into question Marcus Silva’s claims that he was wholly unaware of Brittni Silva’s alleged abortion, possibly undercutting his argument that he suffered emotional harm due to purported secrecy and should be awarded damages. A status hearing on the case is scheduled for June 8 before a Republican judge who has a history of verbal abuse in his courtroom, including erupting at a pregnant woman. But no matter how the case is resolved, Grossman said, the damage is already done, and that’s by design.

The lawsuit featured the word “murder” nearly 30 times, likening the women to killers. Notice of the suit was sent to the women’s private employers, as well as the National Latina Institute for Reproductive Justice, where Garcia was employed, demanding that they preserve all evidence of their relationship with the defendants so that attorneys could investigate whether the employers would be held liable.

“It’s an attempt to weaponize a woman’s most intimate medical decision and try to make it a crime.”

“It’s an attempt to weaponize a woman’s most intimate medical decision and try to make it a crime,” said Rusty Hardin, a high-profile Houston defense attorney who is representing two of the women targeted. “And it’s extremely unfortunate when lawyers use language to demonize people they disagree with.”

Despite the fact that no discovery has been taken, the legal complaint featured several pages of intimate text messages between the women — including Brittni Silva’s ovulation calendar — captured through photos of her phone, presumably (but not definitively) by her ex-husband. According to police records obtained by NPR, Marcus Silva searched through his ex-wife’s phone and purse on more than one occasion, reportedly finding abortion pills. The complaint also included a photo of the women in “Handmaid’s Tale” Halloween costumes to further the argument that they “celebrated the murder.” Their addresses have been made public, and their photos have been shared online by anti-abortion activists.

“This is going to scare away and intimidate anyone who now tries to help a friend or loved one obtain a self-managed abortion,” Grossman said. “The surveillance and violation of private conversations is going to instill so much fear. This sends a message that your personal ID, your photos, your text messages could all be fair game in a public case against you, and nothing you say is safe.”

“And it doesn’t matter if the case is thrown out or struck down — your lives are already likely ruined,” Grossman added. “I think that’s a major purpose of the suit. The chilling effect is part of the whole strategy, and it’s been very successful for Mitchell.”

Grossman pointed to the fact that even before any lawsuit was filed under S.B. 8, clinics in Texas halted the majority of their abortion services out of fear of liability.

Farah Diaz-Tello, senior counsel with the reproductive rights legal advocacy organization If/When/How, stressed that lawsuits like this publicly reinforce and empower “vindictive” partners, giving them another tool to exert control. It’s common for abusers who learn of their partners’ self-managed abortions to coerce them into continuing the relationship by threatening to go to law enforcement, Diaz-Tello said.

“Cases like this one essentially serve to isolate victims of abuse who are often turning to self-managed abortion, a pregnancy termination method that is easier to conceal,” she said. “It’s telling people, if you need help accessing abortion, you’re really on your own or else your friends or family members will get swept up in the net of criminalization.”

From 2000 to 2020, the group documented 61 cases in which people were criminally investigated or arrested for self-managing their abortions or helping someone else do so, often using other criminal laws, including homicide laws. The majority of the cases involved abortion medication, which is under an unprecedented legal threat. The number is likely the “tip of the large iceberg,” not accounting for dropped charges or plea bargains.

While it once seemed like a pipe dream for the anti-abortion movement, fetal personhood may be slowly making its way into mainstream judicial thinking. In his ruling, which echoed the inflammatory rhetoric and unscientific claims employed by anti-abortion activists, Kacsmaryk defended his use of the medically inaccurate terms “unborn human” and “unborn child” rather than fetus or embryo — a telling embrace of fetal personhood.

“The fall of Roe has emboldened the radical fringe and shifted the Overton window on the idea that people should be criminalized for having abortions. The more you push these ideas, the more you normalize them,” Diaz-Tello said. “And this Texas lawsuit is a piece of that.”

Join The Conversation