3 Texas women are sued for wrongful death after allegedly helping friend obtain abortion medication

A Texas man is suing three women under the wrongful death statute, alleging that they assisted his ex-wife in terminating her pregnancy, the first such case brought since the state’s near-total ban on abortion last summer.

Marcus Silva is represented by Jonathan Mitchell, the former Texas solicitor general and architect of the state’s prohibition on abortions after about six weeks of pregnancy, and state Rep. Briscoe Cain, R-Deer Park. The lawsuit is filed in state court in Galveston County, where Silva lives.

Silva alleges that his now ex-wife learned she was pregnant in July 2022, the month after the overturn of Roe v. Wade, and conspired with two friends to illegally obtain abortion-inducing medication and terminate the pregnancy.

The friends texted with the woman, sending her information about Aid Access, an international group that provides abortion-inducing medication through the mail, the lawsuit alleges. Text messages filed as part of the complaint seem to show they instead found a way to acquire the medication in Houston, where the two women lived.

A third woman delivered the medication, the lawsuit alleges, and text messages indicate that the wife self-managed an abortion at home.

The defendants could not immediately be reached for comment. Silva’s wife filed for divorce in May 2022, court records show, two months before the alleged abortion. The divorce was finalized in February. They share two daughters, the lawsuit said.

The lawsuit relies heavily on screenshots from a group chat the ex-wife had with two friends seemingly seeking to help her terminate her pregnancy. Her friends expressed concern that Silva would “snake his way into your head.”

“I know either way he will use it against me,” the pregnant woman said, according to text messages attached to the complaint. “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,” one of the women later told her. “You don’t want him looking through it.”

The lawsuit alleges that assisting a self-managed abortion qualifies as murder under state law, which would allow Silva to sue under the wrongful death statute. The women have not been criminally charged. Texas’ abortion laws specifically exempt the pregnant person from prosecution; the ex-wife is not named as a defendant.

The legality of abortion in Texas in July 2022 is murky. The state’s trigger law, which makes performing abortion a crime punishable by up to life in prison, did not go into effect until August. But conservative state leaders, including Cain and Attorney General Ken Paxton, have claimed that the state’s pre-Roe abortion bans, which punish anyone who performs or “furnishes the means” for an abortion by up to five years in prison, went back into effect the day Roe v. Wade was overturned in June.

The legal status of these pre-Roe statutes remains a contentious question. In 2004, the 5th U.S. Circuit Court of Appeals ruled that those laws were “repealed by implication,” which U.S. District Judge Robert Pitman reaffirmed in a recent ruling. But Cain and others have repeatedly argued that the Legislature restored those laws into effect with recent abortion legislation. This issue went before the Texas Supreme Court, but the case was dismissed before a final ruling.

In 2021, the Legislature passed a law making it a state jail felony to provide abortion-inducing medication except under extremely specific circumstances.

Joanna Grossman, a law professor at SMU Dedman School of Law, said this lawsuit is “absurd and inflammatory.” Since the pregnant patient is protected from prosecution, there is no underlying cause of action to bring a wrongful death suit in a self-managed abortion, she said.

“But this is going to cause such fear and chilling that it doesn’t matter whether [Mitchell] is right," Grossman said. “Who is going to want to help a friend find an abortion if there is some chance that their text messages are going to end up in the news? And maybe they’re going to get sued, and maybe they’re going to get arrested, and it’s going to get dropped eventually, but in the meantime, they will have been terrified.”

But it’s possible this lawsuit could get traction, said Charles “Rocky” Rhodes, a law professor at South Texas College of Law.

“It’s scary to think that you can be sued for significant damages for helping a friend undertake acts that help her have even a self-medicated abortion,” Rhodes said. “Obviously, the allegations would have to be proven, but there is potentially merit to this suit under Texas’ abortion laws as they exist now.”

Mitchell and Cain intend to also name the manufacturer of the abortion pill as a defendant, once it is identified.

“Anyone involved in distributing or manufacturing abortion pills will be sued into oblivion,” Cain said in a statement.

Silva is asking a Galveston judge to award him more than $1 million in damages and an injunction stopping the defendants from distributing abortion pills in Texas.

https://www.texastribune.org/2023/03/10/texas-abortion-lawsuit/

 

and on the flip side

Five Texas women who say they were denied medically necessary abortions are suing the state, seeking to clarify when the procedure is permissible under state law.

They are joined in the lawsuit by two OB-GYNs who say “widespread confusion among the medical community” has left them unable to fully perform their jobs.

The lawsuit was announced Tuesday at a press conference where the plaintiffs shared stories of navigating life-threatening pregnancy complications in the largest state in the nation to ban abortion.

“The state of Texas says they want to preserve life by banning safe, legal abortion,” said Anna Zargarian, who had to travel to Colorado to get an abortion after her water broke at 19 weeks of pregnancy. “I’ve never felt my life matters less than it did during this situation.”

The plaintiffs are not asking the courts to overturn Texas’ abortion bans, but rather to clarify under what circumstances doctors can terminate pregnancies.

“Texas’s abortion bans can and should be read to ensure that physicians have wide discretion to determine the appropriate course of treatment, including abortion care, for their patients who present with emergent medical conditions — without being second guessed by the Attorney General, the Texas Medical Board, a prosecutor, or a jury,” the suit says.

The lawsuit was filed by the Center for Reproductive Rights, a New York legal group that has led many of the recent legal fights to protect abortion access.

The lawsuit asks a judge to rule that abortion is permitted in cases in which a pregnant person has a physical condition or pregnancy complication that makes continuing pregnancy unsafe, has a condition that is exacerbated by or cannot be treated during pregnancy, or receives a diagnosis of a fetal condition that is incompatible with life.

Texas’ intersecting abortion laws allow doctors to terminate pregnancies only to save the life of the pregnant patient, but the lawsuit argues that those statutes are vague and conflicting, leaving doctors unsure of how to safely proceed.

There have been several bills filed to widen those exceptions to allow abortion in cases of rape or incest, or pregnancy anomalies that make the fetus incompatible with life, but they are not expected to advance in the Republican-dominated Legislature.

Lauren Hall, one of the plaintiffs named in the suit, was thrilled when she learned she was pregnant. But at her 18-week anatomy scan, she learned that her fetus was developing without a skull, a lethal fetal anomaly known as anencephaly.

Hall’s doctor said they couldn’t help her, she told The Texas Tribune in September. She would have to remain pregnant until she miscarried or delivered a baby that could not survive outside the womb.

Or, the doctor quietly suggested, Hall and her husband could leave the state.

“And she said, ‘If you do that, don’t tell anybody why you’re traveling, don’t tell your jobs, don’t tell anyone at the airport,’” Hall told the Tribune. “Which sounds extreme, but Roe had just been overturned. Everyone was so scared.”

This tragic, earth-shattering news, and the unimaginable choice she now faced, sparked a mental health crisis, Hall said. But she worried that telling a health care provider about her situation would invite more questions and, potentially, legal repercussions.

Hall and her husband eventually cobbled together the money to buy last-minute flights to Seattle, where she was able to get an abortion. Hall said many people in her life had no idea how narrow the exceptions in the law were until she experienced it firsthand.

“They were just all shocked, like, ‘Surely, there’s an exception for this,’” Hall said. “It just didn’t occur to them that a ban would include cases like this.”

One of the other plaintiffs, Amanda Zurawski, learned at 17 weeks of pregnancy that she was miscarrying and at a high risk for infection. But the fetus still had a heartbeat and her life wasn’t in danger, so she was sent home until she became septic.

Zurawski, who attended the State of the Unionin February as First Lady Jill Biden’s guest, was left physically and emotionally scarred by the delay; one of her fallopian tubes is permanently closed, and she said Tuesday that she’s terrified as she resumes in vitro fertilization treatment.

“The barbaric restrictions our lawmakers have passed are having real-life implications on real people,” she said during the press conference on the north lawn of the Texas state Capitol. “The people in the building behind me have the power to fix this, yet they’ve done nothing. In fact, they’re currently trying to pass even more restrictive measures.”

The Center for Reproductive Rights said Tuesday that it is continuing to look for other avenues to challenge state-level abortion bans in court, while advocating for federal abortion protections.

The group unsuccessfully challenged Texas’ Senate Bill 8, which in 2021 banned abortion after about six weeks of pregnancy, and argued on behalf of Jackson Women’s Health Organization in the case that overturned Roe v. Wade last summer.

This lawsuit, however, represents the first case brought by people who have had their pregnancy care directly impacted by new, post-Roe abortion laws, said Nancy Northup, president of the Center for Reproductive Rights.

“These women … represent only the tip of the iceberg,” Northup said. “This is the first lawsuit in the nation, but tragically it is unlikely to be the last.”

https://www.texastribune.org/2023/03/07/texas-abortion-lawsuit/