DALLAS — Last week’s arrest of a woman in the Rio Grande Valley on a murder charge for a “self-induced abortion” created confusion over what’s covered by Texas’ new abortion laws.
On Thursday, Lizelle Herrera was arrested by the Starr County Sheriff’s department on a murder charge for a self-induced abortion. But the county’s district attorney, Gocha Ramirez, announced Sunday he was dropping the charge, saying “the only correct outcome to this matter is to immediately dismiss the indictment against Ms. Herrera.” The motion to dismiss the case was filed Monday.
It’s unclear which statute was used to charge Herrera, who spent two nights in jail. Those who are pregnant are exempt from being charged with murder or lesser homicide charges for an abortion under the Texas penal code. And under state abortion laws, those who obtain an abortion are excluded from any prosecution as laws generally are directed at the provider instead.
Here is a rundown of the latest abortion laws in Texas and what’s covered and not covered.
Is violating Texas’ new abortion restrictions under Senate Bill 8 a criminal offense?
No. In September, the state enacted SB 8, which is enforced through civil private action and has no criminal penalties attached to it. Further, it is enforced through private lawsuits.
SB 8 has since survived numerous legal challenges, including at the U.S. Supreme Court.
Does SB 8 include penalties for those who obtain an abortion?
No. SB 8 allows private citizens to sue those who “aid or abet” an abortion after six weeks. The law, however, does not allow women to be penalized. The law also may not be enforced through state actors.
Lawsuits allow for those who sue to receive $10,000 plus legal fees.
“SB 8 at least as of now has been written very carefully to not do that. It’s been limited to private actors and the state has made that very clear. It could be that someone saw some of the old pre-Roe statutes that get circulated around on social media from time to time and thought that those had, for some reason, become effective again after SB 8, which is also not correct,” said David Coale, an appellate lawyer in Dallas. He was referring to Roe vs. Wade, the Supreme Court ruling in 1973 that essentially legalized abortion nationwide in a case that originated in Dallas County.
Is it illegal for someone to have a self-managed abortion in Texas?
No. “Texas law has a provision that essentially says you can’t punish women for self induced abortion period in across the board and SB 8 also doesn’t allow on the civil side, for lawsuits against women for having abortions. So not only is there no statute authorizing this, there’s an actual statute independently saying this isn’t allowed,” said Mary Ziegler, a law professor at Florida State University and a visiting professor at Harvard Law School.
Further, in the Texas penal code for criminal homicide, chapter 19.06 states that the chapter does not apply to the death of an unborn child if the “conduct [is] committed by the mother of the unborn child.” There also are exceptions for lawful medical procedures and the lawful dispensing of a drug.
What is covered under Texas’ new law regulating self-managed abortions?
In December, Texas enacted Senate Bill 4, which prohibits shipping abortion pills through the mail and limits the pills’ use to the first 49 days of gestation, and making it a criminal offense to violate the law.
The law does not have any provisions targeting those who use abortifacients, but rather those who provide them.
The Food and Drug Administration set federal guidelines in 2016 that limited use of the pills to 70 days.
The Gutmacher Institute, an organization that studies reproductive health policy, showed that medication abortion accounted for 54% of abortions in the nation in 2020, marking the first time abortion pills accounted for a majority of U.S. abortions in a year.
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