Texas Woman Lizelle Herrera’s Arrest Foreshadows Post-Roe Future

Legal experts try to make sense of why the charges against Lizelle Herrera were brought in the first place—and what this means for the future of abortion access.

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A woman carries a sign calling for access to abortion at a rally at the Texas State Capitol on Sept. 11, 2021 in Austin. (Jordan Vonderhaar / Getty Images)

On Thursday, April 7, Texas sheriffs in the Rio Grande Valley arrested a woman and charged her with murder for allegedly self-inducing an abortion last January. The Starr County Sheriff’s Department detained 26-year-old Lizelle Herrera in a jail near the Texas-Mexico border on a $500,000 bail bond.

Reproductive justice advocates in the community, led by the Frontera Fund, organized a protest at the Starr County Jail on Saturday morning and urged people to call the jail demanding the release of Herrera. Calls poured in from across the country. By Saturday afternoon, If/When/How’s Repro Legal Defense Fund paid Herrera’s bail and she was released.

Advocates then urged people to call the Starr County District Attorney Gocha Ramirez, demanding that he drop the charges. On Sunday, Ramirez issued a press release, stating that the arrest was improper and he would file a petition to drop the charges, which he did on Monday, April 11. Ramirez reportedly apologized to Herrera in a text sent to her lawyer Calixtro Villarreal on Sunday. Ramirez said she should never have been charged.

Few details have emerged about what happened leading up to the arrest. But legal experts are trying to make sense of why the charges were brought and what this means for the future.

The indictment stated that on January 7 Herrera did “intentionally and knowingly cause the death of an individual … by self-induced abortion.” The language of the indictment mirrors the Texas criminal homicide statute, Title 5, Chapter 19, of the Texas Penal Code. However, Chapter 19 explicitly exempts pregnant women from criminal charges under the law.

“There are two possibilities. Either this was a really unforgivable accident or it was a deeply malicious and cynical ploy,” said Stephen Vladeck, a law professor at University of Texas, Austin. “To the former, how did so many people miss the plain language of the law? That’s pretty sobering. But the latter is, in some respects, worse. What does that say about the power of prosecutors. That knowing what the statute says, they could still try to pull this off. What’s worse: that the prosecutors didn’t read the statute or that they did?”

Vladeck believes that the recent enactment of Senate Bill 8—and the Supreme Court allowing the law to go into effect—may have contributed to Herrera’s arrest.

S.B. 8 purports to ban abortion at roughly six weeks with no exceptions for rape or incest. The law, however, is only enforceable by private parties bringing civil suits against people who “aid and abet” women to get an abortion and the law explicitly exempts pregnant women from prosecution. The U.S. Supreme Court and the Texas Supreme Court recently dismissed lawsuits attempting to block the blatantly unconstitutional law on grounds that it is not enforceable by the state. As a result, medical providers in Texas ceased offering abortion after six weeks in the state.

What does that say about the power of prosecutors. That knowing what the statute says, they could still try to pull this off. What’s worse: that the prosecutors didn’t read the statute or that they did?

Stephen Vladeck

“The reality is that abortions have been just about unavailable in our state for six and a half months,” said Vladeck. “So in that context, where you don’t necessarily read past the headlines, I could imagine how someone who’s not necessarily following this debate may misunderstand the law.”

But for prosecutors, whose job it is to know the law, and the judge who signed off on the indictment, to be ignorant of the black letter law is a symptom of a larger problem—disregard for the rule of law.

“I continue to be deeply troubled by the universe in which so many people are willing to brush aside fairly basic propositions about how our legal system is supposed to work,” said Vladeck. “In the name of hostility to abortion, we are subverting fairly basic principles. A world in which our constitutional rights are only as good as our state legislators are willing to allow them to be is not exactly a stable federal system. Every day, we are living with the further consequences of the court’s September and December rulings in the S.B. 8 cases.”

Vladeck says another recent Texas law may have also played a role. On December 1, 2021, Texas enacted Senate Bill 4, making it a crime for doctors to prescribe abortion pills to patients who are more than seven weeks pregnant or mail abortion pills to a patient at any time of pregnancy. The law dramatically expanded report obligations of medical providers, which may have contributed to the hospital believing they had to report Herrera’s miscarriage, says Vladeck. Violating the law is a felony punishable by up to two years in jail and a fine of $10,000. Pregnant women are explicitly exempt from criminal penalties under the law.

“Where you’ve got S.B. 4 put an onus on the medical facility to provide information to law enforcement, where that phone call triggers someone in law enforcement to actually start investigating, where S.B. 8 is the reason why medically supervised abortions weren’t available. I think it is possible this is a consequence of a whole bunch of circumstances added up to produce a legally frivolous prosecution,” said Vladeck.

Vladeck described the impact on people in Texas. “Even though this ended the right way, I think it reinforces what has been increasingly true on the ground for the last six months, which is that those people who have the means to leave the state to obtain abortion care are further incentivized to do so. And those who can’t are further placed into a very, very sticky wicket of worrying about their potential civil or criminal liability or that of anyone who helps them versus a pregnancy that they are either unable or unwilling to carry the term. That’s a burden that’s going to be borne disproportionately by the less well off in our state.”

Lizelle Herrera’s Possible Legal Resource

Experts say that Herrera may have a range of options to pursue against police, prosecutors and the hospital. She may have a claim for violation of her federal civil rights under 42 USC 1983 for malicious prosecution, false imprisonment and unreasonable search and seizure. She could also sue the hospital for a violation of the Health Insurance Portability and Accountability Act (HIPAA) for unlawful disclosure of private medical information.

One of the five prosecutors in Ramirez’s office, Judith Solis, reportedly filed a divorce petition for Herrera’s estranged husband Ismael Herrera on the same day Lizelle Herrera was arrested. Ismael’s being represented by a prosecutor in the district attorney’s office could be a conflict of interest, meaning Lizelle Herrera—who was married when she was 19 and has two children with her husband—may be able to file a complaint for prosecutorial misconduct or ethics violations with the State Bar of Texas.

Feticide Laws Criminalize Pregnant Women

Herrera’s case is part of a longstanding pattern of politically-motivated prosecutors stretching the law in order to criminally prosecute pregnant women for the outcomes of their pregnancies, says Lynn Paltrow, executive director of the National Advocates for Pregnant Women, which fights criminalization of pregnant people.

“This arrest was inevitable,” Paltrow said. “It’s been inevitable ever since Texas passed its so-called Prenatal Protection Act, which amended its murder laws to reach the ‘unborn.’ Every time a state passes one of those laws, even when it includes an explicit statement that it may not be used to arrest the pregnant woman herself.”

The Prenatal Protection Act, enacted in Texas in 2003, created a new crime of feticide by expanding the definition of  an “individual” under the criminal homicide law to include a fetus and an embryo. Advocates of the law claimed they wanted to protect pregnant women, and they explicitly exempted prosecution of women under the statute. But the laws became a way to redefine when life begins.

“What we know, whatever their intent, is that laws that equate pregnancy termination with murder, which is what the Texas Prenatal Protection Act is, are used against pregnant women, not for them,” said Paltrow.

The Texas law was part of a wave of feticide laws passed in the early 2000s in response to the murder of Laci Peterson, who was eight-months pregnant, by her husband Scott Peterson in 2002. Congress passed the “Unborn Victims of Violence Act,” signed by George Bush on April 1, 2004, creating a new federal crime for causing the death or injury to an “unborn child” during the commission of a crime against a pregnant woman. Today 38 states have feticide laws and at least 29 of these laws apply to the earliest stages of pregnancy. Most, but not all, explicitly exempt pregnant women, as the Texas law does, but prosecutors still use these laws to against them.

Laws that equate pregnancy termination with murder, which is what the Texas Prenatal Protection Act is, are used against pregnant women, not for them.

Lynn Paltrow

“Vigilante prosecutors all across the country have been deliberately misusing existing law to arrest people for their pregnancy outcomes, including abortion. Whoever presented Hererra’s case to the grand jury absolutely had an obligation to know what the law says. And the law in Texas very, very clearly says on its face it does not permit prosecution of the pregnant person.”

Paltrow has published extensive research on criminal prosecution of pregnant women across the country and within the state of Texas under feticide laws as well as laws against manslaughter, child endangerment and distribution of drugs to minors (through the umbilical cord).

“Prosecutors who bring cases like this are trying to groom people in the United States to think of those who have abortions as criminals,” said Paltrow. “That stigma, eventually, is likely to stick and results in efforts to throw them in jail.”

Paltrow lauded local advocates who organized protests shortly after Herrara’s arrest. “The immediate response from Frontera Fund and South Texans for Reproductive Justice brought attention to the misuse of this law by the police and prosecutor,” said Paltrow. “That misuse of law happens often, but it’s only after a public outcry that prosecutors are prevented from abusing their authority to subject people to prosecution for nonexistent crimes.”

Paltrow also believes that the Herrera case will undermine public health. “Somebody who went for help in a medical setting was turned over to the police. The last thing we should be doing if we want to protect public health is make people afraid to go to their healthcare providers and speak honestly with them.”

Will Post-Roe Abortion Bans Exempt Pregnant Women?

While the Texas feticide law, as well as S.B. 8 and S.B. 4 explicitly exempt pregnant individuals from prosecution under these laws, that could change if the Supreme Court overturns the constitutional right to abortion established almost fifty years ago in Roe v. Wade.

“I think that has always been a political calculus by the anti-abortion supporters in the Texas Legislature,” said Vladeck. “It’s a lot easier to build consensus around these measures when the putative offenders—the villains in the story—are not the pregnant individuals, who may in many cases be pregnant for reasons beyond their control, rather than providers. The providers are much better boogeymen for the legislature than the individuals. Indeed, when S.B. 8 was going through the legislature, a sustained effort was made to say ‘we are not punishing the pregnant person.’”

But many believe that may change in the absence of Roe. The National Association of Criminal Defense Lawyers published a report last August calling attention to the dramatically increasing criminalization of reproductive health in recent years. The report highlighted current criminalization of pregnant women and the threat of increasing criminalization if the Supreme Court overturns abortion rights this summer in the currently-pending case, Dobbs v. Jackson Women’s Health Organization, involving a Mississippi 15-week abortion ban.

The providers are much better boogeymen for the legislature than the individuals. Indeed, when S.B. 8 was going through the legislature, a sustained effort was made to say ‘we are not punishing the pregnant person.’ But many believe that may change in the absence of Roe.

Stephen Vladeck

“A close analysis of existing and emerging state law belies the common perception that enforcement will be limited to abortion providers and irrefutably shows that erosion of a precedent that has stood for nearly half a century may well open the floodgates to massive overcriminalization,” wrote NACDL executive director Norman Reimer in the report’s preface. Reimer is now the Global CEO of Fair Trials.

“It’s critical for the public to understand how additional scrutiny and restriction of abortion and the criminalization of providers contributes to the criminalization of people and their pregnancies, because there’s no way to disentangle the two,” said Farah Diaz-Tello, senior counsel and legal director of If/When/How: Lawyering for Reproductive Justice. “Now the person who ended their pregnancy is likely to see punishment as well.”

On The Divide: Screening and Panel Discussion

On Sat., April 16, at 6:30 p.m. CT at the McAllen Creative Incubator (601 North Main Street, McAllen), South Texans for Reproductive Justice and Peace will host a live screening premiere of the documentary, On The Divide. The film follows three Latinx people unexpectedly connected to the last abortion clinic on the Texas-Mexico border.

Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

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About

Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor in the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at [email protected] or follow her on Twitter @CarrieNBaker.