A Starr County, Texas, grand jury last month indicted a 26-year-old woman, Lizelle Herrera, on one count of murder in connection with "a self-induced abortion." As Starr County District Attorney Gocha Allen Ramirez conceded yesterday, no such charge exists under state law. Yet somehow Ramirez's office presented that chimerical charge to the grand jury, which resulted in Herrera's unlawful arrest last Thursday. She spent two nights in jail before she was released on Saturday after posting a $500,000 bond.
In a press release he posted on Facebook yesterday, Ramirez announced that he would "immediately dismiss the indictment against Ms. Herrera," because "it is clear that Ms. Herrera cannot and should not be prosecuted for the allegation against her." He reached that conclusion after "reviewing applicable Texas law," which you might think his office would have done before seeking an indictment. Its failure to do so, aside from its implications for the abortion debate, was an egregious example of prosecutorial misconduct that flouted the rule of law and violated Herrera's constitutional rights.
The March 30 indictment against Herrera says she "intentionally and knowingly cause[d] the death of an individual" on or about January 7 "by a self-induced abortion." The indictment does not cite the statute that supposedly authorized this charge, but the language tracks with Title 5, Chapter 19 of the Texas Penal Code, which deals with "criminal homicide." It defines "intentionally or knowingly" causing an individual's death as murder, a first-degree felony punishable by life in prison.
Crucially in this context, Chapter 19 says it "does not apply to the death of an unborn child if the conduct charged is…conduct committed by the mother of the unborn child." Evidently the prosecutor who presented the charge against Herrera did not read that far, and the grand jurors did not bother to check the statute under which they ostensibly indicted Herrera. It looks like they applied their own moral intuition that self-induced abortion is tantamount to murder, even though Texas law explicitly says it is not.
At a protest on Saturday outside the jail where Herrera was being held, Rockie Gonzalez, founder of the abortion rights group La Frontera Fund, said "she miscarried at a hospital and allegedly confided to hospital staff that she had attempted to induce her own abortion, and she was reported to the authorities by hospital administration or staff." Ramirez said "it is clear that the Starr County Sheriff's Department did their duty in investigating the incident brought to their attention by the reporting hospital." But since it should have been clear from the outset that "the incident" was not a crime under Texas law, what was there to investigate?
If the sheriff's office had done its duty, it would have quickly determined that the allegation against Herrera did not amount to a crime. Instead it referred the matter to local prosecutors, who likewise failed to do their duty and instead presented the case to grand jurors, who failed to do their duty and instead approved a baseless criminal charge. As Lynn Paltrow, executive director of National Advocates for Pregnant Women, told the Associated Press when it covered the case on Saturday, "There is no statute in Texas that, even on its face, authorizes the arrest of a woman for a self-managed abortion."
There are only two possibilities here. Either the sheriff's office, the district attorney's office, and the grand jury did not know that, which is appalling enough, or they willfully disregarded the law, which is worse.
"Although with this dismissal Ms. Herrera will not face prosecution for this incident," Ramirez said yesterday, "it is clear to me that the events leading up to this indictment have taken a toll on Ms. Herrera and her family. To ignore this fact would be shortsighted. The issues surrounding this matter are clearly contentious, however based on Texas law and the facts presented, it is not a criminal matter."
That is not exactly an apology to Herrera, who was deprived of her liberty, had to hire a lawyer and raise bail (with help from La Frontera Fund), and had her life upended for no valid legal reason. In fact, Ramirez's statement can be read as an apology to abortion opponents who might wish that her conduct was a crime. The contentiousness of abortion has nothing to do with the question of whether Herrera did anything that justified her arrest. The answer to that question should have been obvious to everyone who had a hand in putting Herrera through this ordeal.
The homicide statute's exception for women who obtain or induce an abortion is of a piece with the general approach that Texas has taken to this issue. S.B. 8, which took effect last September, authorizes "any person" (except for government officials) to sue "any person" who performs or facilitates an abortion after fetal cardiac activity can be detected (typically around six weeks into a pregnancy). But the law explicitly says it does not authorize lawsuits against women who obtain prohibited abortions.
S.B. 4, enacted last July, made it a felony to provide abortion pills outside the restricted circumstances in which Texas allows their use. That law likewise says "a pregnant woman on whom a drug-induced abortion is attempted, induced, or performed in violation of this subchapter is not criminally liable for the violation."
As a matter of policy, in other words, the Texas legislature has decided that pregnant women who obtain or induce prohibited abortions are not civilly or criminal liable for doing so. Some abortion opponents—evidently including the hospital staff member(s) who reported Herrera, the sheriff's office investigators who received that report, at least one prosecutor in Ramirez's office, and the grand jurors who approved the indictment—may disagree with that policy. But that is the law in Texas, and their personal convictions are not a license to pretend otherwise.