No one likes an “I told you so,” whether on an elementary school playground or in arguments over reproductive rights. Still, in the wake of the passage of Texas’s Senate Bill 8 in May 2021, which effectively outlawed abortions after six weeks of pregnancy, and the overturning of Roe v. Wade by the U.S. Supreme Court last June, which triggered Texas’s law barring any abortion with limited and vague life and health exceptions, the dire warnings of pro–abortion rights Cassandras have come to pass. Now that an individual’s right to terminate a pregnancy is solely up to the state of Texas, chaos has ensued. This is not just because abortion has been outlawed, but because of the resulting chilling effect—a concept once used to describe limits on free speech but now applied to the fearful paralysis afflicting those who perform abortions, assist Texans in obtaining them, or even give advice about them.
Spreading fear has long been the strategy of abortion opponents—while the procedure was broadly legal under the Roe decision, protesters claimed, contrary to the evidence, that it could cause infertility and lifelong depression. With Roe overturned, the scare tactics and the resulting panic have intensified. Texas law does allow limited exceptions to the abortion ban; theoretically, abortion is permissible when continuing a pregnancy could cause severe injury or death. But those exceptions have, as a practical matter, been informally and powerfully narrowed by state leaders and powerful antiabortion advocates such as Texas attorney general Ken Paxton, who sued Xavier Becerra, the U.S. secretary of Health and Human Services, after Becerra tried to institute nationwide legal guidelines for emergency abortion care. Paxton’s lawsuit, along with vague and conflicting state statutes, means doctors in Texas have little to no direction on the circumstances in which abortion is legally permissible.
Traveling out of state to obtain an abortion is an option for Texans who have the money, resources, and time (a group that includes almost all state officials and many others who oppose abortions until their daughter wants one). But antiabortion activists have incited enough fear that some doctors are afraid to write referrals or transfer medical records for patients. Medication abortion, while illegal to prescribe in Texas, has still been in high demand via mail from aid groups. But access to one of the main drugs, mifepristone, has been at risk since April 7, when staunch abortion opponent Matthew Kascmaryk, appointed by Donald Trump as a federal district judge and based in Amarillo, made a decision blocking the FDA-approved pill that had been safely used in medication abortions for more than twenty years. On April 21, the U.S. Supreme Court granted a stay of the ruling, pending a decision by a panel of the U.S. Court of Appeals for the Fifth Circuit. This means distribution of mifepristone in states where abortion is legal can continue—for now.
Explains Austin Kaplan, an Austin-based attorney involved in several lawsuits concerning reproductive rights, “Now that we no longer have Roe, it’s no holds barred. The people on the other side of this issue want to drive the very concept out of existence. There is no limit to the novel and creative ways they might try to limit women’s rights to abortion.” Frightening individuals into forced pregnancies has become cheap, easy, and highly effective.
The most powerful proof of the damage done by this chilling effect can be found in hospitals across the state. A lawsuit filed March 6 on behalf of five Texas women against the state of Texas, Paxton, the Texas Medical Board, and its executive director alleges that the five women “and countless other pregnant people have been denied necessary and potentially life-saving obstetrical care because medical professionals throughout the state fear liability under Texas’s abortion bans,” and that abortion bans expose patients to “risks of death, injury and illness.”
The lawsuit, filed by Kaplan and six attorneys from the New York and Washington offices of the Center for Reproductive Rights, provides a compendium of (predictable) horror stories from women who had desperately wanted children but suffered terrible complications on the way to delivery. For instance, plaintiff Amanda Zurawski, 35, of Austin, was seventeen weeks pregnant when she was diagnosed with an incompetent cervix and told by her doctor that her baby would not survive to term. Shortly after, she suffered preterm premature rupture of membranes. Before the ban, an abortion would have been standard procedure. But the hospital refused to perform the procedure because fetal cardiac activity could still be detected. Three days later, Zurawski’s temperature rose to 103 degrees, and she became disoriented. Her terrified husband took her back to the hospital, where doctors determined she was suffering from sepsis, a condition that can be fatal, and as such fell under the Texas law’s limited exceptions to the abortion ban. Only then did the hospital induce labor. As doctors had predicted, her baby died upon delivery. Zurawski then spent three days in the intensive care unit after developing a second case of sepsis. Because of the delay in treatment, she has scar tissue on one of her fallopian tubes that could affect her ability to have more children.
Another plaintiff, 35-year-old Lauren Miller, from Dallas, was pregnant with twins but learned that one baby had a high likelihood of miscarriage or stillbirth. Doctors told Miller that, prior to the passage of Senate Bill 8, they would have been able to perform a “fetal reduction” so that the other twin could survive. But the hospital and the medical professionals now felt hamstrung. Under the new Texas law, a doctor who performs an abortion can lose their license, face a $100,000 fine, and be punished with a prison term. Miller was advised to find a provider out of state, so she and her husband traveled to Colorado, paying thousands of dollars for what prior to the ban would have been a routine procedure in her hometown.
A third plaintiff discovered she was carrying a child with anencephaly, a condition in which a baby cannot survive outside the womb because the skull never forms properly. Her doctor advised her to go outside Texas for an abortion but refused to provide a referral or send her medical records to an abortion clinic out of state because, according to the pleadings, “no one knew how far the politicians in Texas would go to prosecute people involved in abortion care.”
Since Senate Bill 8 became law, stories such as these have proliferated. But while the dangers grow, antiabortion forces have not been interested in seeking solutions to ease the pain of these Texans. Flush with success, they have instead doubled down on their attempts to scare any Texan—and anyone who helps—from ending a pregnancy.
As with earlier attacks on abortion, current legislation suggests a profound ignorance, willful or not, about female reproductive biology. Medical professionals know that emergencies come in myriad forms that can be hard to predict. One obstetrician who is a party to the Zurawski suit noted that she has seen patients with nonviable pregnancies complicated by everything from kidney stones to bipolar disorder to hemorrhages. In many cases, abortion would be the safest and most effective course of action. But when such emergencies arise today, thanks to current restrictions, the safest way for doctors to avoid prosecution is to quietly give patients information for services out of state. Even when doctors and hospitals are willing to risk legal jeopardy in a case that seems to allow abortion under the state’s narrow exceptions, waiting for approval from hospital lawyers sometimes results in infections and fertility problems that could have been avoided if care had been delivered more quickly. “It can do real harm to real people to wait to get the clarity even if you can act,” says Kaplan.
One way to ease this crisis would be for the Texas Medical Board to clarify its definition of pregnancy-related medical emergencies that permit legal abortions. The problem is that there are three different laws that specify when an abortion can be legally performed: Texas’s pre-Roe abortion ban of 1925; House Bill 1280, which made abortion illegal thirty days after the Supreme Court overturned Roe; and Senate Bill 8, which essentially outlawed abortion after six weeks of pregnancy. All contain different versions of what is known as the Emergent Medical Condition Exception—when an emergency is dire enough to require ending a pregnancy. As the Zurawski petition puts it, those versions contain “conflicting language across the different sections regarding physician discretion and intent. This leaves physicians uncertain whether the treatment decisions they make in good faith, based on their medical judgment, will be respected or will be later disputed.”
As Kaplan explains, “Doctors aren’t lawyers. They can’t practice medicine and keep up with the latest judges’ interpretations of these procedures.” But the state medical board—made up of members appointed by antiabortion governor Greg Abbott—has refused to provide any direction since the first of several requests was made in July 2022, including one from the Texas Medical Association. That group asked the TMB to “swiftly act to prevent any wrongful intrusion into the practice of medicine.” It got no response. Nor did the TMB’s executive director, Brint Carlton, answer when state senator Bryan Hughes, who introduced Senate Bill 8, wrote a letter in August 2022 requesting that the agency issue guidance to Texas doctors and hospitals. “The legislature is in session, and they could provide clarity and fix these issues, but I don’t personally hold out any hope that this will happen,” says Kaplan. (A representative from the Texas Medical Board did not respond to an interview request.)
Doctors who are too frightened to practice medicine as they have been taught to do so tend not to stick around, another unintended consequence of the new law. Anecdotal evidence suggests that physicians and other medical professionals are leaving Texas for less restrictive states, which will further increase Texas’s growing doctor shortage in rural areas. As of 2019, for example, 33 of Texas’s 254 counties had no doctor. Fifty percent had no women’s health provider.
A related issue concerns medical education. Will doctors continue to learn how to perform abortions, given current legislation? If not, will aspiring doctors, especially aspiring ob-gyns, want to study medicine here? If not, more Texans with pregnancy complications could face even greater dangers. According to Texas Health and Human Services, four out of five pregnancy-related deaths are preventable. The state’s maternal mortality rate between 2018 and 2020 was 22.9 per 100,000 live births, compared with 20.4 overall in the U.S. That came before passage of Senate Bill 8 but after the Legislature put in place greater restrictions, such as requiring a pregnant woman to submit to a transvaginal sonogram 24 hours before obtaining an abortion and demanding that abortion medications could only be prescribed by physicians. “Texans already suffer from devastating rates of maternal mortality and morbidity, a worsening health-care provider shortage, and the highest uninsured rates in the nation,” says Abby Ledoux, a spokesperson for the Planned Parenthood Action Fund. “Yet antiabortion politicians are hell-bent on plunging us deeper into this public health crisis.”
The latest front antiabortion forces have opened in their war on abortion rights can be found in another lawsuit filed just three days after the filing of Zurawski v. State of Texas, on March 9. In Marcus A. Silva v. Jackie Noyola, et al., the defendants are accused of helping Silva’s ex-wife, Brittni Silva, end her pregnancy with abortion medication.
So far, Texans cannot be criminally charged for getting abortions, nor can those who assist a person who gets one—though helpers can be sued in civil court. Hence the wrongful death claim. Silva is seeking damages of over $1 million from each woman who helped Brittni get abortion medication. Even if the lawsuit ultimately fails, the case and the publicity it has generated serve to make anyone who might help a friend end a pregnancy think twice about doing so.
Maybe it’s no wonder, then, that Silva has a battalion of lawyers, five in all. Three come from the antiabortion Thomas More Society in Chicago. Then there is Briscoe Cain, the baby-faced state representative from Deer Park, whom Texas Monthly called the Legislature’s chief bumbler in 2021, but whose far-right bona fides are impeccable.
The brains of this particular operation belong to the lawsuit’s coauthor, Jonathan F. Mitchell, whose fame and notoriety have been increasing ever since he was outed as the crafty creator of Senate Bill 8, which includes a so-called vigilante clause. That provision allows any Texan to sue anyone who aids someone in getting an abortion—and collect a $10,000 bounty if victorious. If Mitchell has been lauded, sometimes grudgingly, for creating what the National Association of Christian Lawmakers called “the most successful pro-life legislation to date,” he is not a man to rest on his laurels. There are always more people to punish in the abortion wars, and more novel ways to punish them, and Mitchell has become the go-to guy for creative sanctions.
It seems logical, then, that Silva v. Noyola et al. reads like an update of The Scarlet Letter. According to the plaintiff’s original petition, Brittni Silva, discovering she was pregnant in July 2022, “concealed this pregnancy from her husband and decided to kill the unborn child without Marcus’s knowledge or consent.” Reading between the lines, it seems the couple was on the rocks by then, with their divorce finalized seven months later, in February 2023. In accompanying group texts somehow lifted from Brittni’s phone, the petition asserts that Brittni’s friends agreed to help her find “abortion pills” through “illegal means,” from “a criminal organization that illegally ships abortion pills into Texas and other jurisdictions where abortion has been outlawed.” Then, the recounting continues, Brittni’s friend and defendant Jackie Noyola “offered to allow Brittni to use her residence for the murder.”
The women are also accused of disposing of “evidence”—Brittni’s positive pregnancy test—“in violation of Texas Penal Code § 37.09,” which makes tampering with “physical evidence” a third-degree felony. The nuttiest claim may be a photo included in the pleading that shows the women on Halloween 2022, dressed in gowns and headgear worn by characters in the Handmaid’s Tale TV series, which the petition claims shows that the women “celebrated the murder.” (The series and the novel upon which it was based center on the subjugation of women in a dystopian police state, but it would appear that the plaintiff’s lawyers aren’t big readers of feminist literature.)
Punishing the women is embedded into the pleadings. Humiliation, for instance, seems to be the point of the plaintiff’s lawyers revealing phone texts in which Brittni regrets her last sexual encounter with her soon-to-be-ex-husband, while also serving as a warning to other women that their intimate conversations could end up spread around the world. The texts also feature heavy use of the f-word as the women frantically try to navigate the brave new world of procuring medication for an abortion, language that could suggest, to a conservative judge, say, that the women are ill-mannered lowlifes. How did Marcus Silva’s lawyers get those texts? That is not explained. “I don’t believe twelve people in the criminal world or ten people in the civil world are going to agree with them,” Rusty Hardin, the famed trial attorney recently hired by two women in the case, said about Silva and his lawyers. He plans to file a response to Marcus Silva’s claims on May 1.
But the threats contained in this lawsuit are not merely aimed at the alleged coconspirators. Mitchell has also sent a letter to the executive director of the National Latina Institute for Reproductive Justice (the “criminal organization” cited above) regarding plaintiff Aracely Garcia, who, while employed by that organization as a field coordinator, the letter reads, “procured the illegal abortion pills that were used in the murder.” The letter puts the nonprofit organization on notice to preserve any “attorney-client communications concerning these illegal activities.” In addition, employees, officers, board members, and donors “must preserve and retain all documents” regarding Garcia and the organization’s involvement with obtaining abortion medication, “including the abortion pills that were used to murder baby Silva.” Failure to do so, the letter says, “could subject you and your colleagues to severe civil and criminal penalties.” A nearly identical letter was sent to the president of the small Houston bookkeeping business that employed the friends who helped Brittni obtain the abortion medication.
That kind of harassment is not unusual. In some of Mitchell’s other cases, he has been taking full advantage of what is known as a Rule 202 petition, which, in Texas, allows plaintiffs to ask for limited discovery before filing a lawsuit. He is currently using this tactic to investigate groups that help Texas women get abortions in and outside the state. (The discovery phase of a case, in which both sides exchange information about the evidence and witnesses they intend to use at trial, typically takes place after a suit has been filed.) Mitchell casts a wide net in his requests, not only seeking information from the executives at these nonprofits, but also from their employees.
The plaintiffs in these cases, cast as ordinary citizens who are so opposed to abortion that they have volunteered to be enforcers for Senate Bill 8, sometimes seem unclear on their role in the process. For instance, a woman named Sadie Weldon, a sometime barrel racer who lives in Jacksboro, northwest of Fort Worth, sought to depose the deputy director of the abortion rights group Lilith Fund, among others. In a deposition filed in yet another suit, this one by pro–abortion rights advocates, Weldon did not know what kind of document had been filed on her behalf at the county courthouse, nor had she read it before agreeing to sue an abortion provider “so that the Texas Heartbeat law would be upheld.”
Texas’s far-right legislators have also followed Mitchell’s lead. First it was Briscoe Cain, who last year threatened to retaliate against corporations that paid for employees’ out-of-state abortions. With the Silva case, Cain recently declared that “anyone involved in distributing or manufacturing abortion pills will be sued into oblivion. That includes CVS and Walgreens if their abortion pills find their way into our state.” His Freedom Caucus colleagues in the Legislature have become equally strident, dispatching a threatening trial balloon last summer to the law firm of Sidley Austin, warning that members could face felony criminal prosecution and disbarment for any decision to “reimburse the travel costs of employees who leave Texas” to get abortions, or to help employees take abortion medication “after receiving the drugs from an out-of-state provider.”
Freedom Caucus members posted their letter on their myriad social media platforms. Just to make sure other law firms got the message.