Health Law

Texas man files legal action to probe ex-partner's out-of-state abortion

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Abortion procedure room

An unoccupied recovery area, left, and an abortion procedure room are seen in this June 30, 2022 file photo. (AP Photo/Matt York, File)

As soon as Collin Davis found out his ex-partner was planning to travel to Colorado to have an abortion in late February, the Texas man retained a high-powered antiabortion attorney—who court records show immediately issued a legal threat.

If the woman proceeded with the abortion, even in a state where the procedure remains legal, Davis would seek a full investigation into the circumstances surrounding the abortion and “pursue wrongful-death claims against anyone involved in the killing of his unborn child,” the lawyer wrote in a letter, according to records.

Now, Davis has disclosed his former partner’s abortion to a state district court in Texas, asking for the power to investigate what his lawyer characterizes as potentially illegal activity in a state where almost all abortions are banned.

The previously unreported petition was submitted under an unusual legal mechanism often used in Texas to investigate suspected illegal actions before a lawsuit is filed. The petition claims Davis could sue either under the state’s wrongful-death statute or the novel Texas law known as Senate Bill 8 that allows private citizens to file suit against anyone who “aids or abets” an illegal abortion.

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. Crossing state lines for abortion care remains legal nationwide.

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.

Under Texas law, performing an abortion is a crime punishable by up to a lifetime in prison and up to $100,000 in civil penalties. Women seeking abortions cannot be charged under the state’s abortion restrictions, but the laws target anyone who performs or helps to facilitate an illegal abortion, including those who help distribute abortion pills.

Davis’s petition—filed under Texas’s Rule 202 by Jonathan Mitchell, a prominent antiabortion attorney known for devising new and aggressive legal strategies to crack down on abortion—follows a lawsuit filed last spring by another Texas man, Marcus Silva, who is attempting to sue three women who allegedly helped his ex-wife obtain abortion pills.

“Mr. Davis is considering whether to sue individuals and organizations that participated in the murder of his unborn child,” Mitchell, widely known as the architect of Senate Bill 8, wrote in Davis’s complaint in March.

Davis’s petition includes no evidence of illegal activity. Davis’s former partner ultimately obtained her abortion in Colorado, Davis claims in the court documents. Mitchell suggests in the petition that people who helped her procure the abortion could be found liable.

Antiabortion advocates have tried various tactics to dissuade women from traveling out of state for abortions. Idaho has passed a law making it illegal for someone to help a minor leave the state for an abortion without parental consent—which is currently blocked by the courts—and Tennessee is pursuing similar restrictions. Several Texas cities and counties have passed local ordinances attempting to stop women seeking abortions from using key portions of high-traffic highways.

Mitchell said in a statement that abortions that occur outside Texas can be targets for civil litigation.

“Fathers of aborted fetuses can sue for wrongful death in states with abortion bans, even if the abortion occurs out-of-state,” he wrote. “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.”

Molly Duane, a senior staff attorney with the Center for Reproductive Rights, described Mitchell’s statement and general approach as misleading “fearmongering.”

“People need to understand that it is not a crime to leave Texas or any other state in the country for an abortion,” said Duane, who is working with lawyers from the firm Arnold & Porter to represent the woman and others targeted in the Davis case. “I don’t want people to be intimidated, but they should be outraged and alarmed.”

Duane described the woman’s relationship with Davis as “toxic and harmful.”

Davis—who claims in the petition to have helped conceive what he calls his “unborn child”—did not respond to requests for comment. Mitchell declined to comment on Duane’s description of the relationship.

Abortion rights advocates say these types of legal actions amount to “vigilante justice” designed to intimidate people who have done nothing wrong. Duane and other lawyers representing the woman asked the court to redact the names of those involved from the public court filings, out of a concern for their privacy and safety.

The judge agreed to seal the original petition with the identifying information.

“The document at issue contains confidential and sensitive information including the Respondents’ full names … and sensitive allegations about health care that the Respondents have a substantial interest in keeping confidential,” the judge in Burleson County wrote in an order signed Wednesday.

Over the past two years, many antiabortion activists have grown frustrated by what they see as a lack of enforcement of abortion bans—particularly as abortion pills become more widely available in antiabortion states because of growing online and community-based pill networks.

Some antiabortion advocates are searching for a way to crack down.

“You have laws being ignored systematically—so what are we going to do about it?” said John Seago, president of Texas Right to Life, the state’s largest antiabortion group. The pill networks, he added, “can and should be prosecuted.”

Several district attorneys in conservative areas told The Post that abortion laws are difficult to enforce in practice, largely because they have no clear way to find out about these cases.

“First you would have to have some sort of complaining party … then law enforcement would have to do a full investigation,” said Kent Volkmer, county attorney for Pinal County in Arizona, where the Republican-led legislature has voted to repeal an 1864 abortion law. “I think it’s extremely unlikely that an abortion-related criminal charge would ever be submitted to our office.”

If one of these cases did surface, Volkmer said, it would probably be reported by an employee of a doctor’s office who was aware of the abortion—or by the “purported father.”

Volkmer added that, because of his office’s policy to only prosecute cases with a reasonable likelihood of conviction, he would only anticipate prosecuting what he characterized as an “extreme” situation, such as an abortion that occurred late in the third trimester.

In the Davis case, Mitchell is attempting to depose the woman who had the abortion, along with several other people he writes may be “complicit” in the abortion. If deposed, they would be asked about others involved in the abortion, including any abortion funds or any other entities that provided financial support, according to court records. They would also have to provide all documentation relevant to the abortion.

“Mr. Davis expects to be able to better evaluate the prospects for legal success after deposing [the people listed], and discovering the identity of their co-conspirators and accomplices,” Mitchell wrote in the complaint, which he filed on March 22.

Davis is now awaiting a decision from the state district court.

While the vast majority of Texas abortion funds stopped providing funding for out-of-state abortions after Roe was overturned—concerned for their legal risk amid vague laws they worried might allow prosecutors to target them—many resumed operations in the spring of 2023, reassured by a court ruling that has temporarily blocked some prosecutors from going after people who help Texans obtain abortions across state lines.

“I want people to know we don’t think there’s anything illegal about helping someone leave the state for an abortion,” said Duane, with the Center for Reproductive Rights. “These are Jonathan Mitchell … tactics to discourage people.”

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