A Texas woman alleged to have obtained an illegal abortion through non-prescribed medication won’t need to produce evidence to her ex-husband, a Texas appeals court ruled, overturning a trial court in holding that she has a “reasonable fear of prosecution.”
The 14th Court of Appeals said a trial court’s order requiring the production of records has the potential to violate Brittni Silva’s Fifth Amendment right against self-incrimination. The evidence sought could “furnish a link in the chain of evidence needed to prosecute” Silva, the appeals court said.
Silva isn’t a party in this wrongful death lawsuit, and she hasn’t conceded in the case that she obtained an abortion or was even pregnant. Her ex-husband, Marcus Silva, sued three women he says helped his then-wife obtain medication to facilitate an abortion. The alleged termination is said to have happened in July 2022, when in Texas only a medical provider could prescribe medication for the purposes of an abortion. The state’s near-total abortion ban hadn’t yet taken effect.
Marcus Silva made seven requests for evidence from his ex-wife, including a copy of all communications she had with anyone—including the defendants—about efforts to acquire abortion-inducing drugs. He also sought all abortion-inducing drugs in her possession. Brittni Silva refused to turn over any evidence, citing concerns with potential prosecution.
However, in October 2023, a trial court said she must turn them over, giving her 30 days to comply. She appealed.
Holding that the trial court abused its discretion, the Houston-based appeals court said evidence Silva might have produced could be used to prosecute her under three separate federal statutes. One of the statutes, the Comstock Act, prohibits arranging for the transportation of abortion pills in interstate commerce.
Though cases are rarely prosecuted under the Comstock Act, “there is no guaranteeing what future prosecutors will do,” the appeals court said.
A trial in state court is set for May 13.
Brittni Silva is represented by Alex Wolf of Steptoe. Marcus Silva is represented by former Texas solicitor general Jonathan Mitchell and Texas state Rep. Briscoe Cain (R).
The case is In Re Brittni Silva, Tex. App., 14th Dist., No. 14-23-00834-cv, 4/9/24
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