A man who is suing his ex-wife's friends for allegedly helping her get an abortion may have known about her plans and done nothing to stop her, according to a new legal filing.
Marcus Silva brought a wrongful-death lawsuit in March in Galveston County, claiming three women helped his now-ex-wife obtain abortion-inducing medication and "conceal the pregnancy and murder from Marcus, the father of the unborn child."
The lawsuit is the first of its kind since the overturn of Roe v. Wade last summer. Silva is seeking a million dollars in damages from each plaintiff.
But now, Jackie Noyola and Amy Carpenter, two of the women accused of facilitating the abortion, are countersuing Silva, claiming that he found the medication and text messages laying out their plans before his ex-wife underwent the abortion.
"Rather than talking with [his ex-wife] about what he found or disposing of the pill, Silva took photos of the texts and surreptitiously put the pill back," the lawsuit reads. "He wasn't interested in stopping her from terminating a possible pregnancy. Instead, he wanted to obtain evidence he could use against her if she refused to stay under his control, which is precisely what he tried to do."
The countersuit contains a screenshot of a police report Silva allegedly made to the League City Police Department on July 17, claiming he found a pill labeled MF in his ex-wife's purse almost a week prior. He identified the pill as mifepristone, a common abortion-inducing medication.
It's not clear what became of the police report, but the legal filings seem to agree Silva's ex-wife took the medication, intending to terminate her pregnancy. Silva confronted her two weeks later, the lawsuit says, and told her he knew about the abortion.
He threatened to use the screenshots and evidence he had gathered to have her sent to jail if she didn't "give him my ‘mind body and soul' until the end of the divorce, which he's going to drag out," she wrote in text messages to Noyola and Carpenter. She said Silva was asking her to sell the house, give him primary custody of the children and "basically [play] wife."
Texas law does not allow criminal or civil charges to be brought against the pregnant patient who undergoes the abortion; Silva's ex-wife is not a party to the lawsuit.
Noyola and Carpenter are countersuing Silva for violating their right to privacy and the Texas Harmful Access by Computer Act, which makes it a crime to access a computer without the consent of the owner. They note that if there is a violation of the state's abortion laws, Silva is as responsible as anyone, since he knew about the medication and did nothing to stop it.
"The hypocrisy of Silva seeking more than a million dollars in damages is as shocking as it is shameful," the filing says. "It is a craven misuse and abuse of the judicial system to facilitate his ongoing harassment and abuse of his ex-wife."
Silva is represented by state Rep. Briscoe Cain, R-Deer Park, and Jonathan Mitchell, a conservative attorney best known for designing Texas' controversial private-enforcement ban on abortions after about six weeks of pregnancy. Mitchell did not respond to a request for comment.
If this case proceeds, the countersuit filing raises several potentially important legal arguments about how and when Texas' intersecting abortion laws can be enforced. One argument centers on the laws' exemption from legal liability for the pregnant patient.
"It is not illegal or wrongful for a woman to terminate her own pregnancy," the suit says. And thus, the lawyers argue "it is not illegal or wrongful to help a friend do something she is legally permitted to do … Nor should it be."
The modern courts have not yet had an opportunity to litigate this question, a fundamentally important one in the era of self-managed abortion, when anyone can order medication from an overseas provider, have it shipped discreetly to their home and take it, alone, without involving anyone else.
The countersuit also claims that Silva lacks "medical or other evidence" that his ex-wife was ever actually pregnant or that she terminated what would have become a viable pregnancy.
"To the extent a nonviable embryo existed at all, it was miscarried, i.e., expelled prior to viability," the lawsuit said.
Noyola and Carpenter are seeking unspecified damages and legal fees from Silva. A hearing is set for June 8 in Galveston.
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/05/02/texas-abortion-wrongful-death-lawsuit/. The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.