Texas man moves to sue ex over alleged out-of-state abortion
A Texas man has asked a court for permission to launch an investigation into his expartner’s alleged out-of-state abortion, which could lead to one of the first lawsuits against people who help Texans leave the state to obtain the procedure.
Prolific anti-abortion attorney Jonathan Mitchell filed the now-sealed petition in Texas state court last month that would allow him to investigate suspected illegal actions before filing litigation, according to a lawyer representing the people targeted.
The man Mitchell is representing, Collin Davis, threatened his ex-partner with legal action earlier this year upon learning she planned to go to Colorado to obtain an abortion, according to the Washington Post, which first reported the legal action.
Davis has said in legal filings that he plans to pursue wrongful-death claims against “anyone involved in the killing of his unborn child,” the Post reported. Mitchell could not immediately be reached for comment.
Molly Duane, a senior staff attorney with the Center for Reproductive Rights, said her group is representing the woman, who is remaining anonymous for privacy and safety reasons and who declined an interview, as well as multiple others who are named in the legal action.
Duane declined to say how many or who is named but noted that Mitchell has previously stated publicly his desire to punish out-of-state doctors. Mitchell engineered Texas’ novel citizen-enforced abortion ban known as Senate Bill 8 and regularly represents anti-abortion plaintiffs.
Duane’s group is opposing Mitchell’s attempt to depose her clients. Among other things, Mitchell could ask them about others involved in the abortion, such as abortion funds or groups that might have provided financial support, and receive documentation related to the alleged abortion, the Post reported.
Texas bans all abortions except those that would save a pregnant person’s life or pre
vent “substantial impairment of a major bodily function.” Doctors can be punished under state law with up to a lifetime in prison and up to $100,000 in civil penalties, as well as the loss of their medical license.
Texas laws exempt the woman who received the abortion from punishment, but under Mitchell’s six-week abortion ban, private citizens can sue anyone who “aids or abets” an abortion in civil court for damages of at least $10,000.
This is the second high-profile case brought by Mitchell to test the applicability of that law as it relates to aborted fetuses. The first was filed by a Galveston man, Marcus Silva, who is seeking to punish three friends of his ex-wife for allegedly helping her obtain abortion pills, and could go to trial this fall.
With these legal actions, Mitchell and his anti-abortion allies are seeking to test the reach of Texas restrictions since the Supreme Court overturned Roe v. Wade.
It is not currently a crime to obtain an abortion in a state where it is legal, and Duane said the petition amounts to “fearmongering.”
“It’s not enough for Texas to ban abortion,” she said. “They truly want to trap people in their state, pregnant, and the purpose of this is to frighten people to make them think there might be repercussions for doing things that are perfectly legal. … That is really troubling, but it is emblematic of what abortion extremists really have on the agenda.”
The woman Davis is targeting was “still in the process of recovering from a very unhealthy relationship” with him when he filed the legal action, Duane said, without providing details. Duane said it “speaks for itself ” that in both this case and the Silva case, the women are being targeted by ex-partners who describe their former relationships as toxic or even abusive.
The new petition was filed using an unusual civil procedure called Rule 202, which allows lawyers to collect interviews and documents in anticipation of a lawsuit to help them determine their targets and confirm their suspicion that the issue at hand meets legal standards required to file officially.
While other states allow presuit discovery, Texas’ rules around when the procedure can be used are the “most expansive,” according to legal scholars.
Punishment for abortions obtained out of state is a burgeoning area of law for anti-abortion advocates. Idaho recently passed a law that bars people from helping a minor exit the state to get an abortion without their parents’ consent, but the legislation has been blocked by the courts. Tennessee is considering similar legislation.
Some rural Texas counties within the last year have passed ordinances that ban travel on their roads by people assisting anyone seeking an abortion, though their constitutionality has yet to be challenged. Abortion rights advocates, some legal experts and even conservative Supreme Court Justice Brett Kavanaugh have said these ordinances would likely violate the right to interstate travel.
Texas lawmakers, including Deer Park Republican state Rep. Briscoe Cain, have not gone that route, but they have filed legislation to punish companies that pay for their employees to travel out of state for abortions. So far, none have passed.
Duane says this case is emblematic of what happens when there are no federal abortion protections and abortion laws are left up to the states.
“It used to be that determinations about when life begins, existential questions that science can’t answer, were left to individual families to determine in the privacy of their own home,” Duane said. “And the U.S. Supreme Court has made it something that the state can dictate, and this is the inevitable chaos that will ensue.”