Texas man sues ex-wife’s friends for facilitating unborn child’s abortion

Denver, Colo., Mar 15, 2023 / 08:25 am

A Texas man has filed a wrongful death lawsuit on behalf of his aborted unborn child. The lawsuit seeks more than $1 million from each of the three women the man says helped his then-wife obtain abortion pills.

“Abortion harms not only the unborn children who are killed but also the fathers who have had their fatherhood stolen from them,” Peter Breen, executive vice president and head of litigation at the Thomas More Society, said March 11.

Breen’s Chicago-based public interest law firm is representing the father, Marcus A. Silva of Galveston County, Texas.

“We commend Mr. Silva for stepping forward, and we will help any father who seeks justice on behalf of his unborn child who is killed in an unlawful abortion,” Breen said.

Silva’s ex-wife is not a defendant in the lawsuit. She had filed for divorce in May 2022 and the couple divorced in February. They have two living daughters. According to the lawsuit, she learned she was pregnant in July 2022.

According to Silva’s lawsuit, she “concealed this pregnancy from her husband and decided to kill the unborn child without Marcus’ knowledge or consent.” The wife’s friends allegedly conspired with her “to murder her unborn child with illegally obtained abortion pills.”

“The wrongful-death statute allows surviving parents to sue those who cause the death of an unborn child by a wrongful act, neglect, carelessness, unskillfulness, or default,” says the lawsuit, which refers to the unborn child as “baby Silva.”

“Jackie Noyola, Amy Carpenter, and Aracely Garcia each caused the death of baby Silva through their wrongful acts,” says the lawsuit, which expressly notes that Silva’s ex-wife is exempt from civil and criminal liability.

In July 2022 Silva’s then-wife sought assistance in obtaining abortion pills from Noyola and Carpenter, who live in Houston. They offered their homes as a place where the abortion could take place. Garcia, the third defendant, allegedly conspired with Noyola to obtain the abortion pills in Houston.

None of the defendants are physicians or health care providers and the abortion pills were not administered in accordance with the law, the lawsuit says.

The lawsuit is more aggressive in choosing to allege wrongful death.

It does not take advantage of a 2021 Texas law that allows private citizens to sue anyone believed to be involved in helping a woman procure an illegal abortion in the state. The legal awards under this law are only in the tens of thousands of dollars, National Public Radio reported. One of Silva’s attorneys is Briscoe Cain, a state representative who helped design that legislation.

Damages for wrongful death are much more severe. The lawsuit cites a Texas law that dates back to 2003. That law states a person who assists a pregnant woman in obtaining a self-managed abortion has committed murder and can be sued for wrongful death.

“Anyone involved in distributing or manufacturing abortion pills will be sued into oblivion,” Cain said in a March 11 statement. “That includes CVS and Walgreens if their abortion pills find their way into our state.”

Breen, the Thomas More Law Center attorney, agreed.

“It’s well past time to hold accountable those who are involved in the distribution and manufacture of these murderous drugs,” he said.

The manufacturer of the abortion pill used by the pregnant woman is also liable for the baby’s death and will be added as a defendant once it is identified, the lawsuit says. Anyone else involved in the distribution of the abortion pills is also liable.

The lawsuit also seeks an injunction barring the defendants from distributing abortion pills.

The lead attorney in Silva’s lawsuit is Jonathan Mitchell, former solicitor general of Texas.

Joanna Grossman, a law professor at Southern Methodist University’s Dedman School of Law, called the lawsuit “absurd and inflammatory.” In her view, there is no underlying cause of legal action for a self-managed abortion because the pregnant woman is protected from prosecution. She said the law will have a chilling effect on those who seek to help others procure an abortion.

“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,” Grossman told the Texas Tribune.

While Grossman doubted that the lawsuit would hold up in court, Charles Rhodes, a law professor at South Texas College of Law, told the Texas Tribune the lawsuit could have merit under Texas law.