August 19, 2022

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The Legal System

Were the charges against the woman in ‘self-induced abortion’ case legal? It’s complicated

3 min read

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STARR COUNTY, Texas (Nexstar) — After charging a 26-year-old Texas woman for murder for an alleged ‘self-induced abortion’ that killed an individual last week, Starr County District Attorney Gocha Allen Ramirez announced Sunday the charges have been dropped.

Officials with the Starr County Sheriff’s Office arrested Lizelle Herrera last week after the grand jury indictment came down. Now, DA Allen Ramirez said the woman “cannot and should not be prosecuted for the allegation against her” following review of relevant Texas law.

“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 said in a statement. “…Following that oath, the only correct outcome to this matter is to immediately dismiss the indictment.”

His office said it would not be providing any more commentary about the situation on Monday.

According to the indictment obtained by Nexstar, Herrera “knowingly cause[d] the death of an individual J.A.H by self-induced abortion.”

What is still unclear is whether Hererra performed the abortion on herself or another individual. Starr County authorities have not disclosed who “J.A.H” is.

If Herrera performed it on herself, the state could have hypothetically charged her with injury to a child. According to the definition in Texas code, an “individual” means a “human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.”

Federal precedent does not allow the state to punish women who seek and obtain abortions in any state. While Texas has various restrictions when it comes to providing an abortion, its state code specifically outlines if a pregnant woman performs a self-induced abortion, she cannot be held criminally liable.

Joanna Grossman, a law professor at Southern Methodist University, said if Herrera was performing it on herself, that may explain why the charges were dropped.

“The Texas laws make very clear that self-inducing an abortion — regardless of what the rules might say about when abortion is permissible and under what circumstances — it is not a crime. And it’s certainly not the crime of murder,” she said.

Last week’s initial charges came as Texas has been in the national spotlight since Senate Bill 8 went into effect in September last year. That law allows private citizens to sue anyone who aids or abets an abortion beginning when cardiac activity is detected in the womb, which usually occurs around six weeks of pregnancy.

Grossman hypothesized it could have been an error on the district attorney’s behalf misunderstanding how the new law affects abortion, because SB8 specifically delegates the enforcement power to private citizens through civil lawsuits.

“SB8, remember, specifically does not allow the state to enforce that rule at all, not even in a civil context,” she said. “There’s no circumstance in which SB8 could have come into play here in any legitimate way.”

Following passing of SB8, a study from the University of Texas at Austin’s Texas Policy Evaluation Project found about 1,400 Texans each month were traveling to neighboring states for abortion services, including Arkansas, Colorado, Kansas, Louisiana, Mississippi, New Mexico and Oklahoma.

“The issues surrounding this matter are clearly contentious, however based on Texas law and the facts presented, it is not a criminal matter,” Ramirez wrote.

The Associated Press and KVEO contributed to this report.

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