When a woman in Texas was arrested last week for murder for what officials called “a self-induced abortion,” the United States took notice. The case generated national headlines and outrage; a California legislator called it the “future extreme anti-abortion activists want.” By Sunday, the local district attorney had announced that his office would dismiss the indictment against the woman, Lizelle Herrera.
Many of the details surrounding Herrera’s case remain unclear.
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“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,” Rickie Gonzalez, founder of Frontera Fund, said at a Saturday protest about Herrera’s case.
Although Texas last year enacted a law that bans abortion as early as six weeks into pregnancy and bulldozed abortion clinics’ ability to perform the procedure, that law is supposed to be enforced through lawsuits filed by individuals—not by state prosecution.
In a statement, Starr County District Attorney Gocha Ramirez said, “It is clear that Ms. Herrera cannot and should not be prosecuted for the allegation against her.” But, Ramirez added, “The Starr County Sheriff’s Department did their duty in investigating the incident brought to their attention by the reporting hospital.”
For some advocates, the entire saga highlighted a grim reality: With growing uncertainty over the future of abortion rights, pregnant people are likely to only become more vulnerable.
“It’s not surprising to me that this happened in the Rio Grande Valley. We’re a low-income community, we’re a large community of people of color. These restrictions seem to hit us first and hardest,” said Zaena Zamora, executive director of Frontera Fund, which helps assist Texans looking for abortions.
The national legal right to abortion may be a relic of the past within weeks: The Supreme Court is now deliberating over a case that may topple Roe v. Wade, the 1973 ruling that legalized abortion nationwide. “When you have these types of restrictions and when you see that Roe is hanging in the balance of a majority-conservative Supreme Court, it does create a lot of fear and anxiety that this is going to get worse before it gets a lot better,” Zamora said.
If Roe is overturned, states would be free to regulate abortion as they see fit; 13 states, including Texas, have laws on the books that would ban all or almost all abortions if Roe falls.
Experts say that prosecutors who are determined to find ways to criminalize pregnant people will often stretch statutes to fit the supposed crime. If/When/How, which runs a legal defense help people who are facing criminal probes for inducing their own abortions, has found that, between 2000 and the present day, more than 60 people have been criminalized for either self-managing their own abortion or helping someone else do it. (Having an abortion at home, early in pregnancy and through the use of abortion-inducing pills, is widely regarded as safe. The World Health Organization even has a recommended protocol for doing so.)
Since 1973, there have been more than 1,600 instances where women have been “arrested, prosecuted, convicted, detained, or forced to undergo medical interventions that would not have occurred but for their status as pregnant persons,” according to a legal brief filed to the Supreme Court last year by the nonprofit National Advocates for Pregnant Women.
These kinds of cases don’t always involve allegations of abortions, said Dana Sussman, the deputy executive director for National Advocates for Pregnant Women. A pregnant person can find themselves staring down law enforcement if they’ve had a miscarriage or stillbirth, or even if they give birth to a healthy baby.
In 2010, police accused a pregnant Iowa woman who tripped and fell down some stairs of feticide; local media reported at the time that an attempted feticide charge was dropped because the woman was not far enough into her pregnancy. In 2011, an Indiana woman was jailed after she attempted suicide while pregnant. In 2015, another Indiana woman was sentenced to 20 years in prison after being accused of feticide for allegedly self-managing her own abortion. And in October 2021, an Oklahoma woman was found guilty of first-degree manslaughter after she miscarried a 17-week-old fetus.
In 2019, a California woman named Chelsea Becker was charged with first-degree murder for delivering a stillborn child after consuming meth. The charge was ultimately dropped, but Becker was incarcerated from November 2019 until March 2021; during that time, her youngest son was taken into child services and adopted, she said in a 2022 statement to the California legislature.
“Experiencing the loss of my baby—alone—caused a lot of trauma for me and while I was in custody, I was unable to receive the proper counseling to help me with the grief process,” Becker said in that statement. “Even with the counselors at the jail, I was afraid anything I might have said to any of them would be used against me in court, so I suffered alone.”
Feticide laws have been passed in 38 states, according to Sussman.
“They are not infrequently used against pregnant people themselves, even when the plain language of the law does not permit that,” Sussman said. “When a fetus can be a victim of a crime…criminal laws can be applied to a pregnant person as someone who can perpetrate a crime against a fetus.”
The idea that a fetus is a separate person who is both worthy of constitutional rights and capable of being murdered is a concept that’s fundamental to anti-abortion ideology. And it’s made inroads at the highest court in the country: In December, as the Supreme Court heard arguments in the abortion case that could lead to Roe’s overturning, Justice Clarence Thomas asked whether a pregnant woman who took cocaine had a right to “bodily autonomy.”
“He was already moving beyond abortion, to questioning whether a pregnant person has bodily autonomy rights at any point in their pregnancy, which is exactly what the fetal personhood movement has wrought,” Sussman said. “They are using this idea and this principle to control and limit the bodily autonomy rights of pregnant people, their rights to medical decision-making, their right to not be criminalized for things that would not be crimes but for their pregnancy.”
If Roe falls, advocates are braced for the possibility that pregnant Texans will only come under further scrutiny from the cops and the medical establishment.
“Lizelle is not the first person for having a self-induced abortion, or for whatever situation happened with her,” said Zamora. “I do not believe she is going to be the last.”
