Latest Novel Lawsuit = New Anti-Abortion Tactic – Legal Analysis

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Latest Novel Lawsuit = New Anti-Abortion Tactic – Legal Analysis; Texas Wrongful Death Suit Joins Fetal Rights and Fetal Personhood

Using Novel Lawsuit As Weapon Against Abortion

WASHINGTON, D.C. (March 13, 2023) – Signaling the newest in an emerging strategy of using several different kinds of novel lawsuits as weapons against abortions, activists are suing three friends who helped a woman obtain abortion pills to end her pregnancy, notes public interest law professor John Banzhaf, who has predicted and chronicled this new strategy.

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The theory of this lawsuit, filed in Texas, is that abortion constitutes murder under an abortion ban, so that a father can bring a wrongful death action against anyone who aided his ex-wife to cause her own abortion by taking pills.

If successful, such suits could slash abortions in states where abortions are now prohibited but women avoid the ban by using pills, says Banzhaf, noting that there are several other novel lawsuits also being brought by anti-abortion activists which have largely avoided attention by pro-choice advocates. As the Washington Post reported:

"The lawsuit could signal a new phase in antiabortion strategy, with conservatives scrambling to crack down on growing abortion pill networks that have helped pregnant people access medication abortion in states where the procedure is banned. . . [Marcus] Silva’s civil case could result in the women being forced to pay over $1 million in damages."

With so much effort and attention now being focused on blocking proposed legislation which would severely restrict abortions, and learning to live with such laws where they have already been enacted, it's not surprising that abortion rights advocates have largely not yet focused on three new emerging legal threats to reproductive freedom and the rights of women, says Banzhaf, who has won over 100 legal actions battling discrimination against women.

For this reason, Banzhaf has authored a new analysis of these new legal threats:

  1. fetal personhood laws and bills,
  2. lawsuits brought on behalf of the estates of fetuses which were aborted, and
  3. lawsuits purporting to be on behalf of a still-living fetus against the still-pregnant woman

Fetal Personhood Laws 

Fetal personhood laws - which regulate pregnancy and affect pregnant women much more broadly than anti-abortion laws, are "the next battleground in the fight over abortion rights in the US" according to the Washington Post, since they grant a fetus the same legal rights (including to life) as a person.

The Boston Globe warns that these laws could "upend the meaning of equality under the law," and deny states "the authority to allow abortions in cases of rape or incest."

Potentially even more threatening, says Banzhaf, are law suits - at least two of which have already been filed - brought on behalf of the estates of fetuses which were aborted.

For example, a doctor sued by a husband, simply for prescribing abortion pills to his wife four years earlier, had her annual medical malpractice insurance rate more than doubled from $32,000 to $67,000 as a result of the filing.

The final threats are lawsuits being brought by husbands, boyfriends, or others to protect the rights of a still living fetus to prevent it from being aborted - even in states which do not criminalize such abortions - or even to prevent pregnant women for engaging in activities which might pose an unreasonable risk of harm to the fetus.


These latter two types of legal actions present a major threat to abortion rights because, unlike fetal parenthood laws, they do not require convincing legislators to act. Instead, they can be brought even in abortion-friendly states.

They can also be brought and be successful even if government officials such as prosecuting district attorneys refuse to take any actions; e.g., to enforce laws which criminalize most abortions, warns Banzhaf. As the Washington Post reported:

"These growing pill pipelines have presented a major challenge for the antiabortion movement. Many prosecutors don’t want to charge people for abortion-related crimes, while others have struggled to find cases."

All of this is explained and analyzed in a comprehensive legal report by Banzhaf published on Law&Crime entitled: How Fetal Personhood and Fetal Estate Lawsuits Threaten Abortion Rights