Jonathan Mitchell, the lawyer who developed Texas’s bounty bill, SB8, has a new strategy to stop abortion, and it is all about the rights of men.
Mitchell recently filed a wrongful death suit on behalf of Marcus Silva, a man who was angry that his ex-wife ended her pregnancy without his “knowledge or consent.” In text messages Silva shared in his lawsuit, it is clear that his wife was desperate to leave their marriage when she learned she was pregnant. Her friends helped her navigate Texas’s post-Roe v. Wade landscape and managed to secure abortion pills in the state. Silva isn’t suing his ex-wife — Texas law prohibits that. Instead, he’s targeting the friends who got her the pills and the company that manufactured them, hoping to win a million dollars from each.
In some ways, Mitchell’s suit is a long shot. He can’t rely on SB8, which allows suits only against those who help a doctor performing an abortion. But Texas law allows for someone to bring a wrongful death suit before a child is born, and Texas law makes it a crime to obtain abortion pills or supply them to someone else. The problem? Texas law prohibits the punishment of people who have abortions. If Silva’s ex-wife didn’t violate the law in managing her own abortion, then how can Mitchell prove that it constituted a wrongful death?
Mitchell’s willing to roll the dice because the stakes of this case are so high for the antiabortion movement.
Thirteen states have criminalized all or most abortions; others seem poised to follow. Providers have moved out of state or begun offering other services. But prosecutions — or lawsuits — haven’t followed. Making abortion criminal isn’t worth much if no one is scared the bans will be enforced. Even if Mitchell’s lawsuit ultimately fails, it could look worthwhile to his movement if it frightens women away from having abortions.
But Mitchell is also sending a message about what his movement stands for: fetal personhood and fathers’ rights.
Texas law bans abortion after six weeks of pregnancy but doesn’t formally treat a fetus as a rights-holding person. The meaning of fetal personhood is unsettled, even for abortion opponents, but the primary goal is simple: Fetuses and other persons should be treated equally. That means that it’s not enough to just ban abortion; some abortion opponents want to secure rights for fetuses under other laws. There is some uncertainty about which laws should apply: Georgia, for example, made changes to count fetuses for census purposes and require the payment of some child support during pregnancy. Other antiabortion advocates think that rights for fetuses require laws punishing women for abortion. In the Texas case, Mitchell wants to establish that abortion can trigger not only wrongful death suits but even murder charges.
His choice of Silva as a plaintiff is no accident. Mitchell suggests that Silva was wronged not only because his child was allegedly murdered but also because his prerogatives as a husband and father were ignored.
Arguments about men’s rights and abortion aren’t new. As soon as the Roe decision was issued in 1973, antiabortion lawmakers proposed laws requiring married women to get their husbands’ consent before an abortion. Even after the Supreme Court struck these laws down, antiabortion groups tried to find other ways to revive men’s rights. They experimented with laws requiring notification rather than consent. In the late 1980s and early 1990s, they represented men who fought to stop their ex-partners from having abortions. Some of these men complained that they wanted to step up to be husbands and fathers but were denied by women who did not want to be with them anymore. Others argued that all fathers had rights to control and manage their children. Married men suggested that their role as husbands gave them rights to decide if a pregnancy continued. None of these arguments worked in the Supreme Court, but antiabortion groups still stressed that abortion caused trauma and feelings of powerlessness for men denied their natural rights to procreate, provide, and make decisions for others in their family.
Before the destruction of abortion rights in Dobbs v. Jackson Women’s Health Organization, talking about men’s rights was a way to argue for the reversal of Roe. After Dobbs, men like Silva can do more than talk about fetal protection and their rights as fathers — they can try to punish anyone they believe wronged them. For now, it may be through civil suits that could bring financial ruin on anyone helping others obtain an abortion. Later, if lawyers like Mitchell get their way, there could be harsh criminal punishments.
Even if Mitchell’s suit doesn’t work, it won’t be the last of its kind. The arguments spelled out in Mitchell’s suit have resonated with the antiabortion movement for years, and now, it has the chance to act on them. With Roe v. Wade gone, it seems that men are the ones with a right to choose.
Mary Ziegler is a professor of law at the University of California Davis. Her latest book is “Roe: The History of a National Obsession.”