The First “Wrongful Death” Abortion Case

May 17, 2023

It has been nearly a year since the U.S. Supreme Court overturned Roe in its Dobbs decision, which took away the constitutional right to abortion. In the months that followed, states have launched vicious attacks on abortion. The Center for Reproductive Rights’ map paints a dire picture: abortion is now illegal in 13 states, and 11 other states are “hostile” to abortion.

Mary Tuma turns our attention toward one of the most severe abortion bans in the country: a 6-week abortion ban in Texas, which outlaws all abortion after six weeks, well before many people know they are pregnant. Brittni Silva is one of the many people in Texas impacted by this ban. Before the enactment of the state’s criminal trigger ban, “which makes performing an abortion a felony punishable by up to life in prison,” Brittni allegedly obtained a self-managed abortion. Her friends supported her, and now, they face a lawsuit by Brittni’s ex-husband, Marcus Silva.

Marcus’ lawsuit is unprecedented. He is accusing Brittni’s friends of wrongful death and alleges that they conspired to help Brittni obtain medication to terminate her pregnancy. Marcus relies on Texas’s pre-Roe criminal ban, a statute from 1925 that penalizes anyone who “furnishes the means for” abortion. He argues, in essence, that Brittni’s self-managed abortion is equivalent to murder under Texas state law, thus permitting a wrongful death claim.

We at the Woodhull Freedom are outraged that Marcus was able to bring a wrongful death claim against Brittni’s friends. We are outraged that Texas bans all abortions after six weeks. We know that our fundamental right to sexual freedom is inextricable from our fundamental right to abortion. Abortion is not, as Marcus and his attorneys argue, murder. Supporting a friend who is in receiving an abortion should simply not be, as they argue, a criminal activity.