Texas Abortion Rights Fight: Lawsuit Involving Ex Wife's Abortion Dropped

One of the first and most disturbing lawsuits after Texas began banning abortions within the state, has dropped his claims, according to court filings. 

The wrongful death case, which had the potential to open up new avenues to target those accused of assisting with abortions, was set for trial on Monday in Galveston County.

A Texas man had filed the wrongful death lawsuit accusing three women of helping his ex-wife obtain abortion pills. This lawsuit was one of the first major legal challenges under a state abortion ban since the United States Supreme Court overturned Roe v. Wade.

The Plaintiff Marcus Silva filed the lawsuit  in Galveston County, Texas, alleging that three Texas women were liable for a wrongful death because they helped his ex-wife obtain abortion pills to terminate a pregnancy in July 2022. The civil lawsuit was seeking damages of $1 million against each woman.

Since the U.S. Supreme Court overturned Roe v. Wade in June 2022, eliminating federal abortion rights, Texas has been one of about a dozen states that has enforced a total abortion ban. It is illegal to "aid or abet" abortions in Texas, which the lawsuit claims defendants Jackie Noyola, Amy Carpenter and Aracely Garcia did.

Brittni Silva, who divorced her husband in February, according to the lawsuit, is not a defendant and is exempt from criminal or civil liability under state law. Photos of text messages apparently between Brittni Silva, Noyola and Carpenter, attached as exhibitions in the court documents, show the women discussing Silva's pregnancy and her desire to get abortion pills in Texas."If I don't have to travel that would make things so much easier," Silva wrote, according to the screenshots.

The wrongful death case, which had the potential to open up new avenues to target those accused of assisting with abortions, was set for trial on Monday in Galveston County.

The parties reached a private settlement, court documents show though the terms of the agreement are not public, a spokesperson for two of the defendants, Amy Carpenter and Jackie Noyola, said neither of them agreed to pay anything to the plaintiff, Marcus Silva. The third defendant could not immediately be reached.

On Thursday, the claims were dropped with nothing to show for them.

This shocking test case was filed by attorney Jonathan Mitchell, an anti-abortion legal crusader responsible for Texas’ novel ban on abortions through private lawsuits. That gambit, commonly known as SB 8, survived a court challenge. This wrongful death suit, which demanded $1 million from the two women for their “murderous actions,” did not.

Mitchell filed a notice of non-suit Thursday night asking the court to dismiss all of the claims and close the case, just as it was preparing to go to trial. The filing does not say why they dropped the claims, and Mitchell did not immediately respond to a request for comment.

A prior court ruling in the case attempted to compelled the ex-wife production of information on how the she allegedly obtained an abortion-inducing medication. The court ruled it would violate her civil rights under the Fifth and Fourteenth Amendments, the Fourteenth Court of Appeals held.

The Fourteenth District Court of Appeals, in a per curiam opinion, In Re Brittni Silva, aligned itself with three defendants and the relator on a discovery dispute stemming from a wrongful death lawsuit.

While Brittni Silva wws not a defendant in the wrongful-death lawsuit, her ex-spouse subpoenaed her to produce any communications with the three defendants and others concerning abortion, abortion-inducing drugs, and her pregnancy.

The Galveston County 56th District Court ordered Brittni Silva to comply, and she filed a writ of mandamus petition at the Fourteenth District, arguing she has a credible fear of prosecution if she complies.

The appeals court opinion noted that Brittni Silva does not concede she was pregnant or obtained an abortion during the relevant period.

The court in its opinion said the most relevant objections contend compelling production would violate Brittni Silva's civil rights under the Fifth and Fourteenth Amendments of the U.S. Constitution, and the Texas Constitution.

"The objections further noted that Marcus Silva's lawsuit claimed relator violated numerous state and federal criminal laws in association with the wrongdoing he was alleging occurred," the opinion said.

The court said the Fifth Amendment applies to state governments through the due process clause of the Fourteenth Amendment, and it applies to both criminal and civil proceedings, "like the instant trial court proceeding."

Mr. Silva is represented by Jonathan Mitchell of Mitchell Law, who specializes in drafting legislation for conservative lawmakers and the attorney credited with devising the Texas abortion ban that relies on civil lawsuits.

Mitchell argues in the appellee's brief that Ms. Silva has no credible fear of prosecution, but the appeals court disagreed.

"At a minimum, relator has a reasonable fear of prosecution under 18 U.S.C. §§ 1461 and 1462," the court said.

The federal statutes cited identify nonmailable items to include any instrument or drug that can be used to produce an abortion. Penalties include fines and imprisonment of up to five years for a first offense, and up to 10 years for subsequent offenses.

Mitchell then argued Ms. Silva's answers would not demonstrate she used the mails or similar unlawful carrier methods.

The court again disagreed, noting evidence showing she received abortion-inducing medication "would still furnish a link in the chain to prosecute her for violations of either statute upon a separately obtained showing of evidence regarding how she received them."

The Comstock Act is the statute often referred to as a means to prosecute the passing of drugs through the mail, and Jonathan argued the Biden Administration takes the position it's not enforceable.

The Fourteenth District answered by stating, "self-incrimination protections are not a function of prosecutors' apparent willingness to prosecute, but rather whether answers purportedly protected by the amendment are themselves incriminating."

In a supplemental authority letter for Ms. Silva, Wolf brought to the court's attention Attorney General Paxton's endorsement of prosecutors' charging doctors and "anyone else" for perceived violations of the state's abortion laws.

Jonathan's last argument for Mr. Silva was that Ms. Silva must make a document-by-document in camera showing that Fifth Amendment privilege applies in order to successfully claim the privilege.

"We disagree. Relator has shown that simply producing responsive documents or other items, or even acknowledging their existence, would itself create a risk of prosecution," the court said.

The cases and their many factors were garnering national attention and headlines on both side of the abortion issue.

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