Lizelle Herrera is out of jail, but the arrest of the 26-year-old Texas woman last week on murder charges related to what prosecutors said was a “self-induced abortion” led to an outcry both in Starr County, Texas — where she was arrested — and across the nation.
The reality, however, is that pregnant people have faced prosecutions and other investigations related to their pregnancy for decades.
According to a brief filed in an abortion case before the Supreme Court, there have been more than 1,600 instances of state officials or workers prosecuting or otherwise investigating pregnant women on the basis of “fetal protection” in the nearly 50 years since Roe v. Wade established the right to an abortion.
In a 2001 case highlighted in the brief, “an Oklahoma judge took ‘custody’ of a pregnant woman’s fetus to prevent her release from jail.” In a 2019 case, a 28-year-old Alabama woman was charged with manslaughter “as a result of being shot in the stomach during an altercation” because she allegedly started the fight despite knowing that she was pregnant.
Roe and federal and state cases that followed have offered protection in some of these instances when the investigations or prosecutions have been challenged. The Supreme Court, however, could overturn Roe in the coming months in Dobbs v. Jackson Women’s Health Organization — a challenge to a law in Mississippi that bans abortions at 15 weeks.
Such a move would give states more leeway to take action against healthcare providers, those who otherwise aid people in securing abortions and potentially even patients seeking them. Several states have passed abortion restrictions in recent months that would likely be found unconstitutional under Roe, but that could hold up if the court strikes it down.
Though some details of Herrera’s case are not public, it is notable that the prosecutor, in announcing his decision to dismiss the charges against her, said that the case began when a hospital brought “the incident” to the attention of the sheriff’s department. The move came in the wake of the passage of Texas’ S.B. 8 — which bars abortions after about six weeks and allows private lawsuits to be brought enforcing the ban. Supreme Court rulings have not stopped that law from going into effect; other states have taken steps toward similar “tattletale” laws or policies in the time since.
On top of that, the Supreme Court’s arguments in Dobbs suggest that the court will either dramatically scale back abortion rights or overturn Roe altogether when it issues its decision in Dobbs, which will be by the end of June. That likelihood has led still other states to pass legislation further restricting abortion, either immediately or in anticipation of a ruling overturning Roe. This week alone, Republican Florida Gov. Ron DeSantis signed a bill banning abortion after 15 weeks, and Republican Oklahoma Gov. Kevin Stitt signed a “near-total abortion ban” that includes significant criminal penalties — up to 10 years in prison — for those who perform abortions.
It is against this backdrop that Herrera found herself in jail this past weekend on murder charges relating to what the indictment alleged was a “self-induced abortion” in January. After three days of protest and national coverage, the local district attorney, Gocha Allen Ramirez, said he would dismiss the charges. “In reviewing applicable Texas law, it is clear that Ms. Herrera cannot and should not be prosecuted for the allegation against her,” he said in the statement. A person who has an abortion or otherwise loses their pregnancy cannot be charged with murder under Texas’ homicide law.
Ramirez has not explained why his office presented the case to a grand jury and secured an indictment that led to Herrera’s arrest. She was jailed for three days with a bond set at $500,000 before his announcement that there was no basis for the charges and that they would be dismissed.
Herrera’s experience is not as unusual as the national outcry over it might suggest. In one of the briefs filed at the Supreme Court in the Dobbs case, the National Advocates for Pregnant Women and other organizations detailed the history of pregnant people in America facing criminal investigations or charges and consequences of those actions. Prior work, collected in the Journal of Public Health Law and Policy, identified more than 400 such instances between 1973 and 2005. The National Advocates for Pregnant Women reviewed the time since then, identifying more than additional 1,200 instances.
In describing the more than 1,600 instances of such prosecutions or other investigations, the brief states that officials have “deprived pregnant women of virtually every constitutional right, including the right to life” — pointing to a D.C. case from the 1980s in which a “judge ordered a pregnant woman to undergo caesarean surgery without her consent knowing that the operation might kill the woman,” who was dying of cancer.
Michele Goodwin, a law professor at the University of California, Irvine, and the author of “Policing the Womb: The New Race & Class Politics of Reproduction,” pointed out that many of these cases came out of political attacks on Black and brown women in the 1980s, which depicted them as “welfare queens who were just so drug-addled and addicted that they can’t take care of their babies.” Those attacks soon become policies and laws, which then led to investigations and arrests, as well as mandatory medical interventions, of these women.
“Black women, brown women were the canaries in the coal mine,” she said.
The National Advocates for Pregnant Women brief details a particularly jarring example of this in those 1,600 instances. “Alabama prosecutors have charged more than 500 women under the State’s ‘chemical endangerment’ law,” the brief explains, including instances in which the woman was taking a controlled substance with a legitimate doctor’s prescription.
Herrera’s arrest — along with all the other prosecutions and interventions detailed in the brief — took place under the theoretical protections of Roe and the 1992 case that reaffirmed Roe, Planned Parenthood of Southeastern Pennsylvania v. Casey. While some of the most aggressive of these investigations and prosecutions have, as with Herrera, been cut short when they received public scrutiny, even then, some harm — jail time, having a mug shot put out across the airwaves — is done.
Depending on the scope of the Supreme Court’s decision in Dobbs, states could end up in a position where they are free to make their own judgments on how a pregnant person’s rights are weighed against a “fetal protection” interest — or whether those who get abortions could be prosecuted.
Opponents of Roe have pushed for this change through “personhood” protection for fetuses — pointing to laws that already provide protections for fetuses or seeking to expansively read other laws to provide those protections. The Alabama Supreme Court’s current chief justice, Tom Parker, has worked — in opinions and elsewhere — to advance the personhood movement, as was detailed in an extensive ProPublica story in 2014.
Since then, the Supreme Court has become far more amenable to arguments from the right. In the Dobbs case, Texas Right to Life — represented by Jonathan Mitchell, who served as the state’s top appellate lawyer from 2010 to 2015 — argued that Roe’s discussion of a fetus as representing “potential life” is “inane.”
“A fetus inside the womb is an actual life — both as a matter of law and as a matter of scientific fact,” the Texas Right to Life brief states. “And if the Court is unwilling to overrule Roe in its entirety, it should at least repudiate the discredited phraseology of ‘potential life.’”
Such a ruling — even if it leaves Roe intact in some technical sense — would give states more freedom to take actions policing pregnant people’s decisions, whether in the form of tattletale laws, criminal laws or other attempts.
“What the Texas case shows us is a deep kind of policing that a lot of people didn’t expect,” Goodwin said. She said the series of events Herrera experienced was no fluke and will be repeated: “It’s meant to send a chilling message, which is to say, ‘Don’t you dare do this. Because if you try, this will be you.’”
Already, a Missouri lawmaker has been pushing amendments seeking to bar anyone from performing an abortion on Missouri residents, “regardless of where the abortion is or will be performed.” Pregnant people themselves could be targeted, as has happened in the past decades or in more direct ways, depending on the scope of the court’s opinion and the state where a person lives.
The stakes are high, and the consequences could be great — the one thing that all sides appear to agree on — but the outcome won’t be clear for months or even longer, long after the Supreme Court rules in Dobbs.
Thanks to Lillian Barkley for copy editing this article.