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Lizelle Herrera's Texas arrest is a warning

Even mistakes quickly resolved or retracted can have a chilling effect.
Image: Abortion rights advocates hold signs during a protest in support of Lizelle Herrera in Los Angeles on April 14, 2022.
Abortion rights advocates at a protest to support Lizelle Herrera in Los Angeles on April 14.Jae C. Hong / AP

Almost as soon as news broke last week that a Texas woman had been charged with murder for allegedly inducing her abortion, prosecutors acknowledged there was no legal basis for the charges.

Details in the case remain sparse, but it’s likely medical professionals treating Lizelle Herrera at a Texas hospital reported her to law enforcement. Then the Starr County Sheriff’s Office charged her with murder for “intentionally and knowingly causing the death of an individual by self-induced abortion.”

But there never was a legal justification for these charges, a fact highlighted by the Democratic district attorney’s apology.

But there never was a legal justification for these charges, a fact highlighted by the Democratic district attorney’s apology. True, Texas last year passed SB 8, a now-notorious bill that allows anyone to sue a doctor who performs an abortion, or anyone who “aids or abets” a person seeking one. But SB 8 authorized lawsuits, not criminal charges, and it specifically exempted women, and other people who can get pregnant, from lawsuits. Texas’s murder statute explicitly prohibits anyone from prosecuting women or other pregnant people for abortion.

Indeed, many (but not all) of the states that have recently introduced strict anti-abortion laws have stressed they are not planning to punish women for disobeying them.

In practice, it’s never been so simple. States have already sometimes punished people for their behavior during pregnancy, especially people of color with fewer resources. But states’ formal position still make a difference: The more red state lawmakers claim that they won’t punish women, the more constraints there should be on prosecutors who target them.

Arrested for abortion?

April 12, 202205:05

It would be easy to dismiss what happened to Herrera as the error of a rogue district attorney. But the case also suggests something bigger may be happening in the anti-abortion movement that could reshape the legal landscape if the Supreme Court reverses Roe v. Wade. The anti-abortion movement has begun to fragment, with breakaway groups, lone legislators and even local prosecutors having more power than ever. In this climate, even mistakes quickly resolved or retracted can have a chilling effect.

It wasn’t always this way. The anti-abortion movement mobilized in the 1960s as states began to reform criminal abortion laws. Most early anti-abortion organizations had ties to local Catholic dioceses, and the struggle was intensely local, with different state anti-abortion groups pursuing different strategies. But after the Supreme Court decided Roe in 1973, the anti-abortion movement nationalized, with groups like the National Right to Life Committee creating powerful political action committees and coordinating litigation in federal court. By the 1990s, conservative states passing abortion laws were often working from a single playbook — and passing strikingly similar laws, many of them written by lawyers working miles away in Washington, D.C.

The creation of this anti-abortion establishment was no accident. Wealthier anti-abortion groups had a master plan to reverse Roe — one that involved a partnership with the GOP and a bid to control the Supreme Court. These groups often identified themselves as incrementalists — organizations seeking to identify restrictions that the Supreme Court would uphold while hollowing out the right to choose. That meant that the most politically connected anti-abortion groups tried to keep a unified, top-down strategy. Rogue sheriffs or prosecutors could damage the anti-abortion movement’s political influence or chances of making progress in the Supreme Court.

But discipline in the anti-abortion movement began to break down in earnest after 2018.

But discipline in the anti-abortion movement began to break down in earnest after 2018, when the Senate voted to confirm Justice Brett Kavanaugh to the Supreme Court. State lawmakers began to listen to activists who had once been on the anti-abortion movement’s fringe, like the activists behind so-called heartbeat bills, which banned abortion when a doctor could detect fetal cardiac activity — before some people would even realize that they were pregnant.

Others came up with ideas of their own, like clearly unconstitutional blanket abortion bans, which proposed that women who ended pregnancies face the death penalty, and even criminalized the treatment of ectopic pregnancy (in which a fertilized egg implants outside the uterus), which can never result in a viable pregnancy.

With a conservative Supreme Court majority, some states saw no reason to listen to the anti-abortion establishment. Conservative lawmakers thought that if the court would inevitably reverse Roe, their goal should be to create the perfect legislative vehicle to get rid of abortion rights as soon as possible. Besides, the Republican Party had been upended by populists, from those who put the tea party in office in 2010 to those who proclaimed their loyalty to President Donald Trump. (Trump, who supported abortion access until around 2011, moved hard to the right while president, eventually pushing for judges to overturn Roe.)

The anti-abortion movement was having its own anti-establishment moment, with many seeing the anti-abortion strategies of earlier decades as apologetic, cowardly and counterproductive. That populist streak was even more visible after Justice Amy Coney Barrett’s confirmation. The Supreme Court now seemed to have a bulletproof conservative majority — even if one conservative justice had second thoughts about reversing Roe, there were five others who would likely vote to undo abortion rights.

And so rather than passing laws that would force the court to reconsider Roe, state lawmakers are increasingly acting as if Roe is already gone. States seem less and less bothered by what the law actually says. The rule of law is giving way to a game of predictions based on the justices’ jurisprudential approach — and the political commitments of the presidents who nominated them.

In this new world, there is no single organization calling the shots. That opens the door to extreme bills — and to potentially more cases like Lizelle Herrera’s. This is especially true given the spread of abortion pills. As states criminalize abortion, abortion clinics will close down. People seeking abortions will be even more likely to use pills (already the leading method early in pregnancy); some will travel out of state to get pills; others will order pills online from overseas.

In Herrera’s case, there may not have been a political agenda at work. But women will see this story — and that may change the way they talk to their doctors and their medical providers. This chilling effect could drive more and more of these decisions underground.

Meanwhile, states say they only want to punish doctors and those who aid or abet women — including parents, partners and abortion funds — while leaving women alone. But when someone takes pills, the doctor may be operating in a blue state — or outside the United States. If states like Texas can’t punish these doctors, and abortions appear to be continuing, they may reconsider who should be punished.