In a Monday statement, Starr County District Attorney Gocha Allen Ramirez announced he was filing a motion to dismiss the murder charge against 26-year-old Starr County resident Lizelle Herrera, saying that “In reviewing applicable Texas law, it is clear that Ms. Herrera cannot and should not be prosecuted for the allegation against her.”
Herrera was arrested on Thursday on accusations she had “intentionally and knowingly cause the death of an individual by self-induced abortion,” as Sheriff's Major Carlos Delgado put it at the time. She was released on a $500,000 bond on Saturday.
It’s unclear under what law she was charged with murder. Lynn Paltrow, executive director of National Advocates for Pregnant Women, told The Guardian on Sunday that “there is no law in Texas that authorizes treating people who have miscarriages, still births or abortions as murderers.”
In fact, Texas law specifically prevents women from being charged with murder for aborting their own pregnancy.
“In reviewing this case, 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. To ignore the incident would have been a dereliction of their duty,” Ramirez continued. “Prosecutorial discretion rests with the District Attorney’s office, and in the State of Texas a prosecutor’s oath is to do justice. Following that oath, the only correct outcome to this matter is to immediately dismiss the indictment against Ms. Herrera … The issues surrounding this matter are clearly contentious, however based on Texas law and the facts presented, it is not a criminal matter.”
The Lone Star State’s conservative-dominated government aroused fury in April of last year, when it passed the country’s most restrictive abortion law, banning abortions after six weeks of pregnancy based on the ability to detect a so-called “fetal heartbeat.” The law has a novel third-party enforcement mechanism designed to frustrate attempts to strike the law down, which has inspired copycat bills in other states, such as Idaho.
The law, SB 8, has sharply curtailed abortions in the state and was complemented by a second law in September 2021, SB 4, that banned people "from providing an abortion-inducing drug to a pregnant woman without satisfying the applicable informed consent requirements for abortions."
Texas SB 8 has stood up to several court challenges, including a request at the US Supreme Court level to block it from taking effect on September 1, 2021. In December, the high court punted on the question of SB 8’s constitutionality but said abortion providers could continue to bring challenges in lower courts, and in January rejected an appeal to revive the litigation.
In a second abortion case heard by the Supreme Court in December, Dobbs vs. Jackson Women’s Health Organization, the Mississippi state government asked the high court to also reconsider the validity of its ruling in Roe vs. Wade, a 1973 case in which the Supreme Court recognized a woman’s right to abortion access and laid out a framework for regulating it. The situation has alarmed liberals, and in response, the Democrats mounted an ill-fated attempt to make legal abortion access a part of the US law code.
Herrera isn’t the first in the US to face jail in connection with an ended pregnancy, either: in nearby Oklahoma, a Native American woman was convicted of first-degree manslaughter in October 2021 in connection with a miscarriage she suffered in January 2020. The fetus was between 15 and 17 weeks old, according to the medical examiner’s report - nowhere near old enough to survive outside the womb.
According to the National Advocates of Pregnant Women (NAPW), a pro-choice advocacy group, the state's murder and manslaughter laws don't apply to those who suffer miscarriages. Despite what the law says, the NAPW has tracked about 1,600 such cases between 1973 and 2020, with the vast majority of them happening in the last 20 years.
Pro-abortion rights activists have pointed out that banning abortion doesn’t end abortions, it only ends safe abortions. Two 2017 reports by the Guttmacher Institute found that the rates at which women abort pregnancies is roughly equal between countries that have and have not banned abortions, but that botched abortions are responsible for a far higher percentage of maternal deaths in countries that ban abortion compared to countries that don’t.