Are Texas’s abortion laws being used for state-sponsored spousal harassment?

Are Texas’s abortion laws being used for state-sponsored spouse harassment?

Meet Jonathan Mitchell. The former solicitor general of Texas is not a household name but you’ll be familiar with his work. He’s the architect of the dystopian Texas law that lets private citizens act as vigilantes and sue abortion providers or anyone who “aids or abets” the procedure. As the New York Times noted in a 2021 profile of Mitchell, he’s devoted much of the past decade to “honing a largely below-the-radar strategy of writing laws deliberately devised to make it much more difficult for the judicial system – particularly the supreme court – to thwart them.” In other words: he’s brilliant at finding sneaky ways to inflict his beliefs on everyone else. And he appears to have made it his life’s work to weaponize the law to terrorize and control women.

Mitchell’s latest project is representing a Texas man called Marcus Silva who is currently suing his ex-wife’s friends for helping her get an abortion. Silva is demanding more than $1m in damages from each of the two friends his ex-wife talked and texted with when she planned her abortion as well as the woman who provided abortion pills. He’s also planning to sue the manufacturer of the abortion pills.

What gives Silva the right to do this? Good question. Mitchell and Silva have been very creative and are testing the bounds of current abortion and homicide laws. The lawsuit begins by stating: “Under the law of Texas, a person who assists a pregnant woman in obtaining a self-managed abortion has committed the crime of murder and can be sued for wrongful death”; it then goes on to cite sections of the Texas penal code that talk about homicide but don’t mention abortion. While procuring and supplying abortion pills is prohibited in Texas, the law is clear that self-managed abortion isn’t a criminal act. Silva is basically cobbling together interpretations of various different laws to argue that his ex-wife’s friends are “murderers” who are liable for the wrongful death of the terminated fetus.

Silva’s case largely rests on private text messages between his ex-wife and her friends. It’s not clear how he got hold of these messages but his ex-wife’s friends were obviously worried he might snoop though her phone. “Delete all conversations from today,” one of his ex-wife’s friends said. “You don’t want him looking through it.” It’s also clear that Silva’s ex-wife didn’t want to share news of her pregnancy with him because she was afraid of how he’d act.

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

In addition to screenshots of private text messages, Silva’s case also includes a photo of what he says is a picture of his ex and her friends from Halloween last year, dressed as characters from The Handmaid’s tale. “On Halloween of 2022, [two defendants and Silva’s ex-wife] celebrated the murder by dressing up in Handmaid’s Tale costumes for Halloween,” the complaint says. It seems like he got that photo from the Facebook page of ex-wife’s employer, which has now set its page to private.

So is Silva going to win? It seems unlikely; many legal experts believe there is no legal basis for the suit. The terrifying thing, of course, is that it doesn’t really matter whether he wins or not: this lawsuit is more about sending a message to women. “This is going to cause such fear and chilling that it doesn’t matter whether [Mitchell] is right,” said Joanna Grossman, a law professor at SMU Dedman School of Law, to the Texas Tribune. “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.”

I know that we’re only supposed to use the word “terrorism” when talking about brown people but I’m not sure how else to describe this lawsuit other than domestic terrorism or state-sponsored spousal abuse. A number of rightwing outlets have published the names of Silva’s ex-wife’s friends and their photos and I imagine they are being harassed by forced-birth activists. Further, Silva isn’t just some random guy with a vendetta. He’s being supported by the former solicitor general of Texas; he has a powerful reactionary machine behind him. And, already, the rightwing media is urging others to see Silva as a blueprint. “Silva is a model of how men must be proactive in standing up for their rights as fathers,” an op-ed in the rightwing Washington Examiner proclaimed. This isn’t some one-off lawsuit. This is part of a playbook.

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