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In May 2021, Texas Gov. Greg Abbott signed his state’s version of a “heartbeat” ban, forbidding nearly all abortions after six weeks — but with a twist. The Texas bill, as The New York Times reported, also empowered “any private citizen to sue doctors or abortion clinic employees who would perform or help arrange for the procedure.”
Left unsaid was that private citizens, rather than law enforcement or other state officials, would be the only people who could enforce the ban. By empowering private actors to enforce the ban, the thinking went, abortion providers and other prospective plaintiffs couldn’t sue the state to prevent its enforcement; instead, anyone and everyone could be a prospective plaintiff, and state officials would have no role at all.
That “bounty hunter” feature of the law — designed specifically to circumvent judicial review — was the conceptual brainchild of a then-relatively unknown conservative lawyer, Jonathan Mitchell, whose admirers have praised him as a “technical magician.” And it worked. S.B. 8 took effect in September 2021, despite providers’ petition to the Supreme Court to stay its implementation. It then survived a more thorough Supreme Court review months later.
Of course, S.B. 8 has never produced an onslaught of litigation, nor did anyone expect it to. The fear of being sued (not to mention the potential liability) was the whole point. And that worked too, effectively ending abortion services in Texas even before Roe v. Wade was overturned in June 2022.
Since then, Mitchell, who clerked for the late Justice Antonin Scalia and served as Texas’ solicitor general, has become something of a conservative legal hero. In February, through a methodical, “buttoned-down presentation,” he convinced the Supreme Court to rule unanimously that former President Donald Trump should not be disqualified from appearing on Colorado’s presidential primary ballot, thereby overturning the Colorado Supreme Court’s interpretation of Section 3 of the Fourteenth Amendment.
Mitchell has never enforced S.B. 8 itself. In March 2023, Mitchell decided to mimic its bounty hunter provision by filing a lawsuit in Galveston County court on behalf of Marcus Silva, who had divorced his ex-wife, Brittni, just the month prior. Silva alleged Brittni had undergone a medication abortion during their marriage with the help of two friends, one of whom obtained abortion pills from a third woman. Silva sued all three women — but not his ex-wife — alleging they caused the wrongful death of his child and conspired “to murder Baby Silva with abortion pills.” And Silva sought more than $1 million in damages from each of them.
Further, Silva attached to his complaint screenshots of text exchanges between and among his ex-wife and the defendants. Those text chains included discussions of how and where to obtain the pills, when to take them and even how to ensure Silva never found out about her pregnancy or the abortion.
Within weeks of Mitchell’s opening legal salvo, Brittni Silva’s friends sued him too, charging that her ex-husband had invaded their privacy. Despite the defendants’ counterpunch, Marcus Silva’s suit shocked even pro-abortion advocates familiar with Mitchell’s track record. Legal commentators Dahlia Lithwick and Mark Joseph Stern, for instance, remarked that by representing Silva, Mitchell seemed to have twin aims: “to set a precedent that helps isolate pregnant people through terror and surveillance” — or what they called “spousal abuse via lawsuit” — and “to make it clear that anyone offering advice about abortion may be bankrupted in a court of law.”
But on Oct. 10, on the eve of a trial, Mitchell filed papers to terminate the case “with prejudice,” meaning Silva cannot refile his suit. Mitchell’s co-counsel, Briscoe Cain, told The Washington Post “the parties have executed a settlement agreement and all claims and counterclaims have been dismissed”; a court filing confirms “the parties’ agreed resolution.” Mitchell declined MSNBC’s request for comment.
Exactly what was behind the decision to settle is unclear, but the progress of the case gives some clues. In April, a Texas appeals court ruled that Marcus could not force Brittni to turn over communications relating to her abortion, including with the defendants. The court noted that his complaint alleges she violated “numerous state and federal criminal laws,” including the Comstock Act of 1873, which prohibits the mailing of anything “intended for producing abortion.” Even though the Biden administration does not interpret Comstock broadly as prohibiting the mailing of abortion medication, the court reasoned that to compel her to produce the communications at issue could violate her constitutional rights, notably her right against self-incrimination.
Mitchell then appealed to the Texas Supreme Court, which denied the petition in June in a three-sentence order. One justice of that court, in a concurring opinion, called out Silva’s “disgracefully vicious harassment and intimidation of his ex-wife Brittni during the course of their marriage’s demise and during this litigation,” noting that his “atrocious treatment” of her made him a “particularly unsuitable beneficiary of this Court’s discretionary” powers. (Among other things, The Washington Post reports, “Silva’s ex-wife shared with the court transcripts of recordings of the verbal abuse she said she experienced from Silva ahead of the lawsuit being filed, including threats to persecute her if she didn’t have sex with him and do his laundry.”)
And finally, we know that earlier this week, the trial judge refused Silva’s request to delay trial, which was scheduled to begin on Oct. 14.
Neither Silva nor his lawyers have explained publicly why they backed down, but without Brittni’s communications, it may be that they simply lacked the evidence to win at trial. Meanwhile, one of the defendants told the Post “[t]here was no money exchanged in connection with” the settlement.
And the ultimate irony? Despite losing her constitutional right to abortion, a woman’s other constitutional rights may have prevented the guy who wrote the country’s most infamous abortion ban from using other, facially neutral laws to accomplish the same aims.
CORRECTION (Oct. 12, 2024, 4:05 p.m. ET): A previous version of this article misidentified the law under which Silva brought the suit. The suit was brought under Texas’ wrongful death statute, not under S.B. 8, which solely concerns abortions performed by Texas-licensed physicians.