Fastexy Exchange|Documents in abortion pill lawsuit raise questions about ex-husband's claims

A Texas man says three women helped his now-ex-wife obtain pills for an abortion last year "without his knowledge,Fastexy Exchange" and he's suing them for $1 million each.

The wrongful death lawsuit, believed to be the first of its kind since the U.S. Supreme Court curtailed abortion rights last summer, highlights concerns about digital privacy and reproductive health. And it comes as a battle over the future of access to medication abortion plays out in the federal court system.

And now, experts say a close analysis of documents related to the case appears to undercut some of the man's claims.

Pages of 'janky' text messages

Marcus Silva says that last July – just weeks after the Supreme Court overturned Roe v. Wade – three women helped his then-wife secretly get abortion pills and illegally end her pregnancy.

Silva and his lawyers have claimed repeatedly that his then-wife took the pills behind his back.

"There is a very strong issue here, that a man had a child; he did not know about it, and the child was killed," one of Silva's attorneys, Peter Breen, told NPR after the lawsuit was filed in March. "So his fatherhood of that child was terminated without even his knowledge."

Silva's legal team declined to comment for this story.

Silva made a similar claim in his lawsuit, which was filed in Galveston County, Texas, a few weeks after the couple's divorce was finalized. In the suit, Silva says he "recently learned of the defendants' involvement" and that his ex "decided to kill the unborn child without Marcus' knowledge or consent."

But several forensic and legal experts interviewed by NPR say key documents related to the case suggest that Silva may have known his wife was planning an abortion before it took place by accessing her text messages. The messages, in which the woman shares intimate details with her friends, are included as exhibits in the lawsuit.

Lana Ramjit, director of operations at the Clinic to End Tech Abuse at Cornell, which works to prevent technology-based stalking and abuse, says it's hard to know exactly when or how most of the messages were captured or who captured them. But there are some clues, she says, including a glare on the screen and what looks like a thumb, suggesting someone used another device to take pictures of the messages.

"They are pretty clearly photos of a phone," Ramjit says, describing the photos as "janky," noting the lopsided framing or cropping apparent in some of them.

Ramjit pointed to one message in particular, with a timestamp reading, "Today, 6:38 p.m.," which she says suggests someone photographed the message soon after it was sent. It comes at the end of a long exchange where the women appear to be talking about the need to hide both the pregnancy and the abortion from Silva.

"So we know those photos were taken the same day as the message," Ramjit says.

A note, a pill and a police report

Silva's lawyers have declined to say how he got access to the text messages. But a new document obtained by NPR may shed some light on that question.

A police report from League City, Texas, dated July 18, 2022, states Marcus Silva told officers that six days earlier, he found a Post-It note in his then-wife's purse with the phone number for an abortion clinic.

Silva said he went through her phone and "saw text messages between his wife and several other people" planning the abortion. The next day, July 13, Silva said he went through her purse again and found a white pill with the letters "M-F." He searched online, according to the report, and concluded it was the first pill used in the medication abortion process. In other words, mifepristone.

Silva also said he was "upset that she did not at least have this conversation with him," according to the police report.

Other police documents obtained by NPR suggest a pattern of ongoing tension between the couple. In one incident earlier this year, Silva's ex-wife called police to complain that Marcus was threatening to come to her home with the police to collect belongings she said he thought he should have received in their divorce.

League City police say after Silva's report last July, they determined that there was not enough evidence to pursue any further action.

Authorities in Galveston County also say they have no plans to press criminal charges related to Silva's abortion lawsuit.

Considerations for a potential jury

It's not clear when exactly the abortion took place; the lawsuit says only that it happened sometime in July 2022.

But if Silva knew about the abortion ahead of time, as the police report seems to suggest, that could undermine his argument that he should be awarded damages, according to Mike Golden, director of advocacy at the University of Texas School of Law.

"If the jury comes to the conclusion that he knew full well that this was going on and did nothing about it, that strongly suggests that he suffered little to no emotional distress as a result of this happening," Golden says.

Even if Silva obtained the messages without his wife's consent, Golden and other legal experts interviewed by NPR say it's very likely they are admissible in court under rules for civil lawsuits in Texas. But Golden adds that it's another factor a jury might consider unfavorably.

Virtual, but not hypothetical, risk

Whatever the outcome of this case, the fact that the women's text messages are part of it underscores how digital communication can make people legally vulnerable, said Chinmayi Sharma, a lecturer at the University of Texas at Austin School of Law and scholar in residence at UT Austin's Robert Strauss Center for International Security and Law.

"I think there should be awareness of how big of a risk this is, and how much it's not just hypothetical — it is absolutely happening," Sharma said.

Sharma noted that in one exchange, Silva's ex-wife appears to share her ovulation calendar with her friends, "which is another thing that is a big concern if you're in a state where the timing of the abortion is relevant."

Silva isn't suing his ex-wife because Texas law contains exemptions for people who terminate their own pregnancies. But others can be targeted for helping someone get an abortion.

Rusty Hardin, a Houston-based defense attorney, is representing two of the three defendants. He says it's unfortunate that his clients have been caught up in this case for trying to help a friend.

"It just shows that these are not simple matters. These are family and personal women's issues. They are not the business of the rest of the world, quite frankly," Hardin said.

Silva's lawyer, Breen, has said the lawsuit's goal is to establish that anyone who assists with an abortion in states like Texas where it's now illegal could face civil liability — or even, he hopes, criminal prosecution.

In a recent fundraising message emailed to supporters of his conservative Catholic group, the Thomas More Society, Breen tells readers the lawsuit targets women who helped Silva's former wife get an abortion "behind Marcus' back." It also describes the lawsuit as "groundbreaking."

The message asks readers to send their prayers — and their donations.