Questions remain after the Starr County District Attorney’s Office backpedaled Monday on an indictment they sought against a woman who they said had a “self-induced abortion,” but legal experts wonder what law gave prosecutors confidence in their initial charge.
“I don’t know what the heck they’re trying to pull out there, but that was really, really alarming,” Glenn Kirschner, a former U.S. Attorney’s Office prosecutor in charge of murder cases in D.C., said Monday.
Many suspected the new abortion law known as Senate Bill 8, which passed in May 2021, was leveraged against Lizelle Herrera, 26, of Roma, to charge her with murder following what authorities said was a “self-induced abortion.” A motion was filed to dismiss the charges on Monday, after Herrera was arrested and released from jail two days later on a $500,000 bond.
Legal analysts looked at the language used in the indictment:
“Lizelle Herrera, Defendant, or or about the 7th day of January, 2022, and before the presentment of this indictment, in Starr County, Texas did then and there intentionally and knowingly cause they death of an individual J.A.H., by self induced abortion.”
Kirschner, who said he’s seen hundreds of indictments throughout his career, said a critical piece of information was missing.
“It did not have a Texas statute that the prosecutors were alleging Ms. Herrera violated,” he said.
QUESTION OF STATUTE
Attorneys, legal advocates and pundits pontificated this weekend over which law was used to charge Herrera with murder.
“You and I, and other attorneys are left to Monday morning quarterback a very difficult decision that I’m sure had to have taken hours and hours and days and days of deliberation,” Carlos A. Garcia, a board-certified expert in criminal law from Mission, said Monday.
He said while it may not be common for a prosecutor to dismiss a case they presented, it did happen to him on a case last week.
“I imagine that Mr. Ramirez, his office and staff, before presenting such a case to a grand jury had to consider all of these things. We do not know all the facts,” Garcia stressed.
Starr County District Attorney Gocha A. Ramirez did not return multiple requests for comment from The Monitor as of Monday.
Senate Bill 8 and current law does not allow a pregnant person who had an abortion to face civil or criminal penalties, other attorneys pointed out.
“SB8 creates a civil cause of action that state entities can’t use. So, the prosecutor doesn’t even have the ability to bring a civil cause of action under SB8,” Elizabeth Sepper, a UT Austin professor specializing in health law, said Tuesday.
Legal experts questioned the DA’s decision to pursue criminal charges.
“I think what’s really jarring from a legal perspective about this case is that the Texas homicide law very expressly and explicitly says that it does not apply to formerly pregnant people who self-induced abortion. So, it’s right there in the text of the statute,” Sepper said, referring to Chapter 19, Sec. 19.06 of the state’s penal code.
“This chapter,” the code states, “does not apply to the death of an unborn child if the conduct charged is: (1) conduct committed by the mother of the unborn child.”
Garcia countered that the facts are still not known about the case.
“I don’t think it’s as simple as reading a section out of Chapter 19 and saying, well, it excludes abortions,” he said.
When the law isn’t clear, Kirschner said charges are raised in the absence of case law, but said it wasn’t the case when considering Chapter 19, Sec. 19.06.
“It’s not like there was some absence of law in Texas,” Kirschner added.
“The only thing I can think of is perhaps she actually tried and gave birth to a living child and then, thereafter, perhaps was grossly negligent in failing to render aid or seek aid quickly enough,” Kirschner explained. “That, I could see giving rise to a potential homicide charge but then in the indictment they would’ve cited the Texas statute that was violated and they didn’t. So, the whole thing to me looks beyond curious and fishy.”
The American Civil Liberties Union of Texas made similar statements.
“Starr County apparently falsely arrested a Texas woman in violation of the Constitution,” the ACLU of Texas stated in a fact sheet they released Monday.
Herrera has not commented on her case, nor has her attorney returned calls placed by The Monitor as of Monday.
Although she was released Saturday, there could still be civil lawsuits that arise from her case.
“There could be a false imprisonment civil suit brought. There could be a malicious prosecution civil suit brought when there’s no law on the books for this kind of charge to be made or this kind of arrest to be undertaken, and, in fact, there is contrary law on the books that specifically exempts from these criminal charges a woman who performs a self-abortion,” Kirschner opined. “That feels like more than just negligence from a prosecutor’s office. It feels deeply malicious.”
Garcia, who pointed to the facts unknown publicly, was more skeptical.
“I would imagine that there had to be some aggravating factors that drew the prosecutor’s office’s attention to this particular matter,” Garcia said. “Mr. Ramirez and his office are in the unenviable position to, one, bring charges, and then having to consider the facts, and also draw attention to the issue.”
Experts agreed the case highlighted an important conversation.
Sepper offered pregnant people advice if they found themselves in similar situations.
“If they need to seek medical attention after a self-induced abortion, if they have taken abortion pills by mouth, there’s not a way for medical providers to ascertain that it’s not just a natural miscarriage,” Sepper said.
She also advised them not to talk to the police, to invoke the right to remain silent and request to speak to an attorney.