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DA moves to dismiss a murder charge against a Texas woman accused of a self-induced abortion

Two seated women cut off on either side of a photo with a medical chair in between them.
Evelyn Hockstein
Two women from Texas talk to each other about their travel to Oklahoma as they wait in the recovery room following their abortions in December.

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Starr County District Attorney Gocha Allen Ramirez said Sunday he has filed a motion to dismiss a murder charge against a woman for performing a "self-induced abortion."

Ramirez said the case stemmed from a report made to police by a local hospital in January.

The Starr County Sheriff's Office arrested 26-year-old Lizelle Herrera on Thursday and held her in custody on $500,000 bond. By Saturday night, Herrera was released from custody after an abortion rights advocacy fund posted bail on her behalf.

Ramirez said the Starr County Sheriff's Department "did their duty in investigating the incident brought to their attention by the reporting hospital” but this was not a criminal matter under Texas law.

"In reviewing applicable Texas law, it is clear that Ms. Herrera cannot and should not be prosecuted for the allegation against her." Ramirez said.

This is a dramatic turnaround from an indictment signed March 30, 2022, stating that Herrera “did then and there intentionally and knowingly cause the death of an individual J.A.H. by a self-induced abortion.”

The specifics and strength of the case against Herrera were murky from the start.

Steve Vladeck, a professor at the University of Texas School of Law, said that based on the information available, the murder charge didn’t make sense.

“The Texas murder statute does apply to the killing of an unborn fetus," he said, "but it specifically exempts cases where the person who terminated the fetus is the pregnant woman.”

Vladeck said Herrera’s situation showed what will happen as legal protections around abortion crumble. “I think what this case really is, is an ominous portent of what things are going to look like on the ground in states that have aggressive abortion restrictions,” he added.

Jessica Brand, a former prosecutor and founder of the WREN Collective, a criminal justice nonprofit organization, agreed. “We've had a lot of wake up calls in Texas for how far people are willing to go to prosecute women to strip women of their rights,” she said.

Melissa Arjona, who co-founded South Texans for Reproductive Justice, said the arrest is a consequence of SB 8, which criminalized abortion as early as six weeks and deputized private citizens to sue anyone who provides an abortion or “aids and abets” a procedure.

“I mean, they criminalized pregnancy, basically, and abortion access," she said. "And so we knew something like this was bound to happen eventually.”

While SB8 explicitly exempts pregnant women who get an abortion from criminal repercussions, it makes it nearly impossible to access abortion services in Texas, so many people are left with little to no legal options to terminate their pregnancy.

The controversial law went into effect in September 2021. As legal challenges make their way through the courts, thousands of Texans have gone out of state to get abortions.

“Criminalizing pregnant people’s choices or pregnancy outcomes, which the State of Texas has done, takes away people’s autonomy over their own bodies, and leaves them with no safe options when they choose not to become a parent," said Rockie Gonzalez, founder and board chair of Frontera Fund, which organized a protest on Herrera’s behalf outside the Starr County jail on Saturday.

“We want people to know that this type of legislation impacts low-income people of color communities the most when state legislators put restrictions on our reproductive rights,” Gonzalez told TPR.

Lynn Paltrow, executive director of National Advocates for Pregnant Women, said it was also troubling that this incident began with hospital staff making a report to police.

“We should not be living in a country where people who get pregnant are afraid to go for help at a hospital, because somebody there will turn them in or might turn them in, and it will result in arrest,” Paltrow told TPR.

“This is a disaster not only for any hope of equality, but also for public health. Because what these kinds of prosecutions do is frighten people away from hospitals when they need them from speaking honestly to their doctors when they need them.”

This story will be updated.
Copyright 2022 Texas Public Radio. To see more, visit Texas Public Radio.

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Carolina Cuellar
Dan Katz is the news director of Texas Public Radio in San Antonio.
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