A husband sued over his ex-wife’s abortion; now her friends are suing him

Abortion rights supporters rally in Amarillo, Texas, on March 15, 2023. Photo / Nick Oxford, The New York Times

In March, a Texas man, Marcus Silva, sued three women for US$1 million (NZ$1.6m) each after they helped his ex-wife obtain an abortion last summer using pills. The suit alleged that the termination of the pregnancy qualified as wrongful death under state law, and he presented text messages between his ex-wife and the women as evidence.

In the post-Roe era, the suit horrified abortion-rights advocates and galvanised opponents. Both sides view it as a test case aimed at discouraging anyone from helping women access abortion in states where the procedure is now banned or severely restricted.

This week, two of the women, Jackie Noyola and Amy Carpenter, filed their response in court: they are countersuing Silva for invasion of privacy in addition to offering a number of defences to his claims. Noyola and Carpenter, who are close friends of Brittni Silva, Marcus Silva’s ex-wife, said he searched her phone without her consent and read their private messages.

Abortion-rights advocates have raised the alarm over how private information might be used in both civil and criminal cases against people who have abortions, and those who help them. In Nebraska, prosecutors used Facebook messages between a mother and daughter to bring charges against them after the daughter’s abortion.

For Noyola and Carpenter, the experience of being sued has been difficult, said their lawyer, Rusty Hardin. “They’re being thrust into the public arena, with their financial well-being at risk,” he said. “They believed strongly that they were helping a friend at a time of dire need.”

Marcus Silva’s lawyer, Jonathan Mitchell, a former solicitor general of Texas, has advocated using private lawsuits to deter abortion.

He was the architect of the Texas law, passed in 2021, which led clinics in the state to stop providing abortions after six weeks, by deputising private citizens to enforce the law by suing for cash judgments of US$10,000 per procedure. Mitchell did not respond to requests for comment.

Mitchell’s argument in this case uses the state’s wrongful death statute to seek damages on behalf of Marcus Silva.

The suit asserts that under that state law, the rights of a fetus are equivalent to those of an adult. If Mitchell’s argument succeeds, it would be a legal victory for the concept of fetal personhood — a goal of many opponents of abortion.

Marcus Silva sued three women for US$1 million each after they helped his ex-wife obtain an abortion using pills. Photo / AP

Silva’s complaint is based on a series of photos he took of texts between Noyola, Carpenter, and Brittni Silva. (The third woman he sued, who he says supplied the abortion pills to his wife, has not yet responded in court and could not be reached for comment.)

According to the texts, Brittni Silva’s friends helped her date her pregnancy, which was early in the first trimester, and figure out how to get pills to terminate it.

“Jackie your help means the world to me,” Brittni Silva wrote.

Marcus Silva is not suing his ex-wife. Her friends’ countersuit includes a police report Silva filed in which he admitted that he “went through his wife’s phone”.

“There are clear violations of Texas law in this case with respect to illegally accessing the phone,” said Charles Rhodes, a law professor at South Texas College of Law Houston. “And that’s a situation which will probably occur in other cases.”

Without a private message, or evidence like a Google search that another person might well access without permission, Rhodes asks, “how else would you have the evidence you need to bring your lawsuit?”

In their countersuit, Noyola and Carpenter included more texts — provided, their lawyers said, with Brittni Silva’s consent. Brittni Silva declined to comment.

Brittni Silva claimed that Marcus Silva had a history of emotionally abusive behaviour. In her texts to her friends, she recounted that he burned their wedding photos and threatened the family dog. Brittni Silva told her friends once that she called police because he was harassing her.

She filed for divorce in May 2022, but continued living with Marcus Silva.

In his suit, Marcus Silva says he only recently learned of his ex-wife’s abortion. But in a police report he filed on July 18, 2022, he stated that he found the text messages on July 12, searched her bag the next day, and found an abortion pill. He put the pill back. The abortion took place on July 14. Marcus Silva waited to confront Brittni Silva about it.

“So now he’s saying if I don’t give him my ‘mind body and soul’ until the end of the divorce, which he’s going to drag out, he’s going to make sure I go to jail for doing it,” Brittni Silva wrote to her friends July 23.

The case has other legal complexities. It is a crime in Texas to provide an abortion to someone else but not to self-administer an abortion. And the abortion at issue took place before Texas’ ban on abortion was in effect. “The woman here was clearly within her rights to end her own pregnancy, which means this would be a very unusual application of the wrongful death statute,” said Joanna Grossman, a law professor at Southern Methodist University.

Rhodes, on the other hand, thinks that “the intent of the Texas wrongful-death statute, when it was amended in 2003, was to allow wrongful-death claims against individuals who assisted with an abortion that wasn’t done legally”.

None of the women in Marcus Silva’s suit will face criminal charges, Jack Roady, the district attorney in Galveston County, the relevant jurisdiction, said in March.

This article originally appeared in The New York Times.

Written by: Emily Bazelon

Photographs by: Nick Oxford, AP

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