Texas Woman Lizelle Herrera's Arrest Foreshadows Post-Roe Future
(An extremely disturbing, and important, read)
Texas Woman Lizelle Herrera’s Arrest Foreshadows Post-Roe Future
4/16/2022 by Carrie N. Baker
Legal experts try to make sense of why the charges against Lizelle Herrera were brought in the first place—and what this means for the future of abortion access.
A woman carries a sign calling for access to abortion at a rally at the Texas State Capitol on Sept. 11, 2021 in Austin. (Jordan Vonderhaar / Getty Images)
On Thursday, April 7, Texas sheriffs in the Rio Grande Valley arrested a woman and charged her with murder for allegedly self-inducing an abortion last January. The Starr County Sheriff’s Department detained 26-year-old Lizelle Herrera in a jail near the Texas-Mexico border on a $500,000 bail bond. Reproductive justice advocates in the community, led by the Frontera Fund, organized a protest at the Starr County Jail on Saturday morning and urged people to call the jail demanding the release of Herrera. Calls poured in from across the country. By Saturday afternoon, If/When/How’s Repro Legal Defense Fund paid Herrera’s bail and she was released. Advocates then urged people to call the Starr County District Attorney Gocha Ramirez, demanding that he drop the charges. On Sunday, Ramirez issued a press release, stating that the arrest was improper and he would file a petition to drop the charges, which he did on Monday, April 11. Ramirez reportedly apologized to Herrera in a text sent to her lawyer Calixtro Villarreal on Sunday. Ramirez said she should never have been charged.
Few details have emerged about what happened leading up to the arrest. But legal experts are trying to make sense of why the charges were brought and what this means for the future. The indictment stated that on January 7 Herrera did “intentionally and knowingly cause the death of an individual … by self-induced abortion.” The language of the indictment mirrors the Texas criminal homicide statute, Title 5, Chapter 19, of the Texas Penal Code. However, Chapter 19 explicitly exempts pregnant women from criminal charges under the law. “There are two possibilities. Either this was a really unforgivable accident or it was a deeply malicious and cynical ploy,” said Stephen Vladeck, a law professor at University of Texas, Austin. “To the former, how did so many people miss the plain language of the law? That’s pretty sobering. But the latter is, in some respects, worse. What does that say about the power of prosecutors. That knowing what the statute says, they could still try to pull this off. What’s worse: that the prosecutors didn’t read the statute or that they did?”
Lizelle Herrera’s Possible Legal Recourse
Experts say that Herrera may have a range of options to pursue against police, prosecutors and the hospital. She may have a claim for violation of her federal civil rights under 42 USC 1983 for malicious prosecution, false imprisonment and unreasonable search and seizure. She could also sue the hospital for a violation of the Health Insurance Portability and Accountability Act (HIPAA) for unlawful disclosure of private medical information. One of the five prosecutors in Ramirez’s office, Judith Solis, reportedly filed a divorce petition for Herrera’s estranged husband Ismael Herrera on the same day Lizelle Herrera was arrested. Ismael’s being represented by a prosecutor in the district attorney’s office could be a conflict of interest, meaning Lizelle Herrera—who was married when she was 19 and has two children with her husband—may be able to file a complaint for prosecutorial misconduct or ethics violations with the State Bar of Texas.
Feticide Laws Criminalize Pregnant Women
Herrera’s case is part of a longstanding pattern of politically-motivated prosecutors stretching the law in order to criminally prosecute pregnant women for the outcomes of their pregnancies, says Lynn Paltrow, executive director of the National Advocates for Pregnant Women, which fights criminalization of pregnant people. “This arrest was inevitable,” Paltrow said. “It’s been inevitable ever since Texas passed its so-called Prenatal Protection Act, which amended its murder laws to reach the ‘unborn.’ Every time a state passes one of those laws, even when it includes an explicit statement that it may not be used to arrest the pregnant woman herself.” The Prenatal Protection Act, enacted in Texas in 2003, created a new crime of feticide by expanding the definition of an “individual” under the criminal homicide law to include a fetus and an embryo. Advocates of the law claimed they wanted to protect pregnant women, and they explicitly exempted prosecution of women under the statute. But the laws became a way to redefine when life begins. “What we know, whatever their intent, is that laws that equate pregnancy termination with murder, which is what the Texas Prenatal Protection Act is, are used against pregnant women, not for them,” said Paltrow.
Laws that equate pregnancy termination with murder, which is what the Texas Prenatal Protection Act is, are used against pregnant women, not for them.
Lynn Paltrow
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https://msmagazine.com/2022/04/16/texas-woman-lizelle-herrera-arrest-murder-roe-v-wade-abortion/