The “self-induced abortion” saga

This was quite the journey.

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 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.

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.

The specifics of the case and the strength of the case against Hererra 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.”

I saw this story hit on Friday night but didn’t have time to delve into it. By the time I did get to it, the charges had been dismissed. I’ll get to that in a minute, but first this AP story from Saturday does some legal analysis of what was then an arrest with not a whole lot else known.

It’s unclear whether Lizelle Herrera is accused of having an abortion or whether she helped someone else get an abortion.

Herrera was arrested Thursday and remained jailed Saturday on a $500,000 bond in the Starr County jail in Rio Grande City, on the U.S.-Mexico border, sheriff’s Maj. Carlos Delgado said in a statement.

“Herrera was arrested and served with an indictment on the charge of Murder after Herrera did then and there intentionally and knowingly cause the death of an individual by self-induced abortion,” Delgado said.

Delgado did not say under what law Herrera has been charged. He said no other information will be released until at least Monday because the case remains under investigation.

Texas law exempts her from a criminal homicide charge for aborting her own pregnancy, University of Texas law professor Stephen Vladeck told The Associated Press.

“(Homicide) doesn’t apply to the murder of an unborn child if the conduct charged is ‘conduct committed by the mother of the unborn child,’” Vladeck said.

A 2021 state law that bans abortions in Texas for women who are as early as six weeks pregnant has sharply curtailed the number of abortions in the state. The law leaves enforcement to private citizens who can sue doctors or anyone who helps a woman get an abortion.

The woman receiving the abortion is exempted from the law.

However, some states still have laws that criminalize self-induced abortions “and there have been a handful of prosecutions here and there over the years,” Vladeck said.

“It is murder in Texas to take steps that terminate a fetus, but when a medical provider does it, it can’t be prosecuted” due to U.S. Supreme Court rulings upholding the constitutionality of abortion, Vladeck said.

Lynn Paltrow, the executive director of National Advocates for Pregnant Women also noted the state law exemption.

“What’s a little mysterious in this case is, what crime has this woman been charged with?” Paltrow said. “There is no statute in Texas that, even on its face, authorizes the arrest of a woman for a self-managed abortion.”

Another Texas law prohibits doctors and clinics from prescribing abortion-inducing medications after the seventh week of pregnancy and prohibits delivery of the pills by mail.

Medication abortions are not considered self-induced under federal Food and Drug Administration regulations, Vladeck said.

“You can only receive the medication under medical supervision,” according to Vladeck. “I realize this sounds weird because you are taking the pill yourself, but it is under a providers’ at least theoretical care.”

At this point, we still don’t know a lot about what happened. One hopes we will learn more starting today, and one hopes that Lizelle Herrera will collect a ton of restitution against Starr County if the facts warrant it. I’ll turn this over to Twitter to fill in the rest for now, starting with Prof. Vladeck and a reminder that stupidity is often the simplest explanation for this kind of malfeasance. Which, to be fair, doesn’t make it any less scary or damaging.

Like I said, I hope we learn a lot more soon, because this stinks and it’s scary. MSN and the Trib have more.

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3 Responses to The “self-induced abortion” saga

  1. policywonqueria says:


    RE: “It sure looks like the prosecutors just … forgot … that Texas’s murder statute expressly exempts from its scope a pregnant woman who terminates a pregnancy. [statute URL] A sobering reminder, among other things, to *always read the statute.*”


    How does Vladek conclude that prosecutors just “forgot”? Superior academic scienter? Remote mind-read from the ivory tower? And how do we immediately know that the term “a pregnancy” relates to the charged woman’s own pregnancy?

    As for the politics of it, and assuming the posted copy of the INDICTMENT is authentic, it was signed by a GRAND JURY FOREMAN. The signature looks like B.B., but is basically unintelligible. So how would we know who made a mistake, if error there was, and how it happened? More on speculations below.

    As for DA Gocha Ramirez, he is a Democrat. Does it not help him politically to move for dismissal after the story has made a national splash?

    That said, the good law professor ought to be commended for sharing the link to the actual statute. He should also take his own advice and subject it to a careful read. Plus the case law applying it.

    CITING TO THE APPLICABLE CRIMINAL STATUTE (also see –> Glenn Kirschner tweet, supra)

    The “murder statute” is found in Chapter 19 of the Texas Penal Code, which is titled “CRIMINAL HOMICIDE” and includes four separate offenses: murder, capital murder, manslaughter, and criminally negligent homicide. Based on legislative history notes, Sec. 19.02 governing MURDER was enacted by the Legislature in 1973, but the Lege didn’t just address murder then.

    Looking at the photo of the INDICTMENT, there is no mention of murder qua murder, but of intentionally and knowingly causing the death of an individual, incompletely identified as J.A.H, by a self-induced abortion. A comma seems to be missing, but note that the diseased individual is identified by initials, rather than as an “unborn child” without a name.

    Initials (and pseudonyms) are routinely used to identify minors in child protection cases under the Family Code. What if the phrase “self-induced abortion” was a mistake, or added to make the indictment legally invalid? Perhaps far-fetched, but what do we know when we know nothing else? What if the thing was set up to create a legal test case, or a media hoopla? A fund-raising opportunity perhaps?

    As long as no additional credible information is available, it’s all speculation.

    And while speculating some more … how do we know that J.A.H. is not a pregnant person (woman, girl) whose death resulted from a self-induced abortion assisted and suspected to have been caused by another person who is not a licensed physician? Perhaps she was a minor, with her identity to be protected by the Family Code. That may not be the case here, but it is a question that requires fact to determine whether it is true or not.

  2. Pingback: More on Lizelle Herrera – Off the Kuff

  3. Pingback: How the reproductive rights groups reacted to the Lizelle Herrera arrest – Off the Kuff

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