Wrongful Death Suit in Texas Poses New Threats to Medication Abortion Access

Texas has long served as a testing ground for new ways to restrict abortion, and with a new lawsuit, it is once again forging new avenues for repression.

A Texas woman filed a wrongful death lawsuit in federal court against a man she alleges covertly slipped medication abortion into her hot chocolate. According to text messages cited in the complaint, she claims that her next-door-neighbor pressured her to have an abortion that she did not want and threatened to testify against her in her ongoing custody battle with her allegedly abusive, soon-to-be ex-husband.

Let’s be clear about this: reproductive coercion is abuse. It’s seldom talked about, but it is serious and unconscionable. If what this woman alleges is true, that someone gave her medication abortion without her knowledge, that’s a crime and she obviously has grounds to try to bring that perpetrator to some form of justice.

But reporting from Garnet Henderson at Autonomy News peels back the layers of this case and allows us to see what’s going on underneath.

The plaintiff is represented by former Texas Solicitor General Jonathan Mitchell, the architect of SB8, Texas’ notorious bounty-hunter abortion ban. Mitchell is an anti-abortion fanatic; in addition to conceptualizing SB8, he has also represented men in filing suits against their former partners for having an abortion. Mitchell has embraced using the Comstock Law, an 1873 law that made it a felony to share contraceptives, abortifacients and information about either across state lines or through the mail, as a backdoor way to institute a federal abortion ban. The suit was announced on social media by Mitchell’s compatriot Mark Lee Dickson, the leader of the so-called “sanctuary cities for the unborn” movement that emboldens individual cities and towns to ban abortion within their limits.

The involvement of Mitchell and Dickson in this case makes it difficult to take this lawsuit as a good-faith effort to defend a woman’s autonomy. These men aren’t neutral arbiters — they are intentional, anti-abortion actors who both have years of experience creating new and innovative ways to undermine abortion access.

Not only that, but the anti-abortion movement has long treated women instrumentally, manipulating them and sometimes preying on their troubles to weaponize them against abortion.

Fifty years ago, in August of 1975, two male abortion opponents — Burke Balch and Thomas Mooney — executed their plan to shut down Sigma Reproductive Health Services in Rockville, Maryland. Concerned about the optics of two men impeding an abortion clinic, they instead recruited six women whom they trained to enter the clinic under the guise of being patients, and then to sit down and refuse to leave. It was the first blockade of an abortion clinic in U.S. history, and the six women were arrested. The men responsible for the chaos were not.

Then there’s the case of “Jane Roe” herself, Norma McCorvey, the woman behind the landmark Roe v. Wade case that established the constitutional right to abortion in 1973. McCorvey went on to become a prominent anti-abortion spokeswoman, trotted out by abortion opponents at every turn, to deride the right associated with her name. But on her deathbed, McCorvey finally came clean — it was all an act. The anti-abortion forces used her, plying her with money and psychological manipulation, to speak out against abortion.

Abortion opponents have shown time and again that they are willing to lie, to deceive, and to manipulate, in order to curtail abortion rights.

But this lawsuit goes one step further. The woman is also suing Aid Access, a nonprofit organization that allows abortion seekers to purchase medication abortion online and have it shipped directly to their homes. The woman claims that the defendant showed her a receipt from Aid Access on his phone. Filing a wrongful death suit against Aid Access and its founder, Rebecca Gomperts, is a backdoor attempt to eliminate online access to medication abortion — a sideways attack on a provider who is supposedly protected by shield laws.

That may be the whole point of this. So far, extradition requests from Texas lawmakers against abortion providers in shield states have gone nowhere. Now, it looks as if Mitchell, the ever-creative architect of backdoor abortion bans, has found a potentially new way to eradicate access to a major online provider of medication abortion. Instead of claiming a violation of Texas’s total abortion ban, Mitchell is now trying to claim wrongful death on behalf of an individual with the ultimate goal of shutting down Aid Access.

Even if it doesn’t work that cleanly, this lawsuit could cause a chilling effect. It could frighten other telehealth providers away from prescribing medication abortion online to folks in banned states. If found guilty of “wrongful death,” abortion providers could be forced to pay an exorbitant amount, even though that charge is not a criminal offense. And while the lawsuit can’t technically “ban” medication abortion, it could still make it even harder for folks in banned states to covertly access it through safe means.

For now, we will have to wait and see how this lawsuit plays out. But in the meantime, anti-abortion fanatics like Mitchell and Dickson will continue to find increasingly clever and absurd ways to shut down access to abortion. I fear this is only the beginning.