For anyone who might ever become pregnant in Texas, the consequences of Republican governance could soon hit home in an extremely unpleasant way.
A Texas court is poised to allow a man who impregnated his former girlfriend the right to compel her deposition to seek money damages from out-of-state abortion providers that helped terminate her pregnancy. If allowed to proceed, anyone who becomes pregnant in the state of Texas and takes steps to end that pregnancy—whether by using pills obtained through the mail, or by traveling out of state—could be effectively stalked and forced into court by their sexual partner to explain their actions.
Just let that sink in for a moment.
Practically speaking, it means that sexual encounters and sexual relationships in Texas are now fraught with the potential expense and embarrassment of being dragged into court, should someone become pregnant and later decide—for whatever reason—to end their pregnancy. And because the primary motivation for forcing a sexual partner to go to court is the promise of a large award of money, this practice, if approved by the court, is likely to become pervasive throughout Texas.
The lawyer bringing this “test” case is former Texas solicitor general Jonathan Mitchell, who crafted the law that outlaws nearly all abortions in the state. (He also happens to be the lawyer who represented Donald Trump in the case involving Colorado’s attempt to disqualify Trump from the ballot in that state.)
As reported last week by Caroline Kitchener for the Washington Post, “The decision to target an abortion that occurred outside of Texas represents a potential new strategy by antiabortion activists to achieve a goal many in the movement have been working toward since Roe v. Wade was overturned: stopping women from traveling out of state to end their pregnancies.”
Many people who get pregnant but do not wish to continue their pregnancies now live in Republican-controlled states, like Texas, wholly prohibiting abortion or restricting it to the point where it’s extremely difficult, if not impossible. This leaves them with only two safe (and thus far legal) options: They can either secure abortion-inducing medication through the mail or other means, or they can travel out of state to a “pro-choice” jurisdiction for the procedure.
But Mitchell, a primary architect of Texas’ harsh anti-abortion law known as SB8, has contrived a new way to intimidate anyone doing that: By compelling them through legal process to provide information under oath about how they obtained their abortion, and then using that information to sue the out-of-state abortion provider, doctor, or clinic. This serves the dual purpose of harassing and potentially humiliating the person who chose to get an abortion, while threatening abortion providers in states where it’s legal.
In other words, it’s a perfect example of the rank misogyny at the heart of the forced-birth movement.
As Kitchener reports, Mitchell’s client, Brazos county resident Collin Davis, learned that a woman who he’d impregnated after a short-term relationship intended to travel to Colorado for an abortion. Mitchell immediately issued a threat on Davis’ behalf, demanding that the woman keep all records regarding the planned procedure and advising his client would sue “anyone involved” in helping her under Texas’ wrongful death statute.
But this threat wasn’t enough; the woman clearly didn’t want to have a child with Davis. Their relationship was brief, and, in the words of her attorney, “toxic and harmful.” So immediately after Davis learned that she had actually obtained the abortion, Mitchell petitioned for a court order to compel the woman’s deposition.
As one of the “go-to” lawyers for the forced-birth lobby, Mitchell had previously filed a lawsuit on behalf of Marcus Silva, another disgruntled Texas man who sought to sue three women who’d assisted his ex-wife in legally terminating her pregnancy by providing her with abortion pills.
As Kitchener points out, in the new case filed by Mitchell on behalf of Davis, there is no suggestion that his ex-partner did anything illegal in obtaining an abortion in Colorado. The case raises serious questions about whether states with radical forced-birth laws in place can extend those laws to punish out-of-state abortion providers.
Pro-choice organizations interviewed for Kitchener’s article emphasize that, in their view, such attempts are illegal and simply “fearmongering” on the part of forced-birth fanatics. Those organizations also point out that, under current Texas law, a pregnant person cannot be sued for damages—yet.
But soon that distinction could no longer matter in the state of Texas. As Kitchener writes:
The case also illustrates the role that men who disapprove of their partners’ decisions could play in surfacing future cases that may violate abortion bans—either by filing their own civil lawsuits or by reporting the abortions to law enforcement.
As pointed out by Alessandra Freitas and Tierney Sneed for CNNthe 2022 Dobbs decision by a conservative Supreme Court majority seeded by Donald Trump is the sole reason that efforts like these to further restrict reproductive rights can even exist. Texas simply illustrates that the motivation behind that decision is—and has always been—misogyny. Only men stand to benefit if this practice is upheld by the Texas courts, while women are, by design, the primary ones victimized by it.
In fact, Mitchell himself made that intent perfectly clear:
Fathers of aborted fetuses can sue for wrongful death in states with abortion bans, even if the abortion occurs out-of-state. They can sue anyone who paid for the abortion, anyone who aided or abetted the travel, and anyone involved in the manufacture or distribution of abortion drugs.
Texas is already trying to stop its residents from leaving the state’s clutches to terminate their unwanted pregnancies.
As Kitchener reports, “Several Texas cities and counties have passed local ordinances attempting to stop women seeking abortions from using key portions of high-traffic highways.”
If Mr. Mitchell’s effort is successful, however, the state won’t even need to block its highways to prevent pregnant people from escaping. They will be terrified enough, without ever leaving their homes.
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