A Texas district attorney announced on Sunday that a 26-year-old woman charged with murder for a "self-induced abortion" should never have been indicted, and prosecutors will be filing a motion to dismiss the indictment on Monday.
Lizelle Herrera was arrested on Thursday by the Starr County Sheriff’s Office and held on a $500,000 bond after the sheriff's office reported that she “intentionally and knowingly cause the death of an individual by self-induced abortion.” She was held in the Starr County jail in Rio Grande City, which is on the U.S.-Mexico border, NPR reported. Now it seems District Attorney Gocha Allen Ramirez is attempting to correct the wrong by asserting in a Facebook post that “Herrera cannot and should not be prosecuted for the allegation against her.”
“Although with this dismissal Ms. Herrera will not face prosecution for this incident, it is clear to me that the events leading up to this indictment have taken a toll on Ms. Herrera and her family,” Ramirez wrote in the post. “To ignore this fact would be shortsighted. The issues surrounding this matter are clearly contentious, however based on Texas law and the facts presented, it is not a criminal matter.”
Read the district attorney’s complete Facebook post:
“Yesterday afternoon, I reached out to counsel for Ms. Lizelle Herrera to advise him that my office will be filing a motion dismissing the indictment against Ms. Herrera Monday, April 11, 2022. In reviewing applicable Texas law, it is clear that Ms. Herrera cannot and should not be prosecuted for the allegation against her.
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. Prosecutorial discretion rests with the District Attorney’s office, and in the State of Texas a prosecutor’s oath is to do justice. Following that oath, the only correct outcome to this matter is to immediately dismiss the indictment against Ms. Herrera.Although with this dismissal Ms. Herrera will not face prosecution for this incident, it is clear to me that the events leading up to this indictment have taken a toll on Ms. Herrera and her family. To ignore this fact would be shortsighted. The issues surrounding this matter are clearly contentious, however based on Texas law and the facts presented, it is not a criminal matter.Going forward, my office will continue to communicate with counsel for Ms. Herrera in order to bring this matter to a close. It is my hope that with the dismissal of this case it is made clear that Ms. Herrera did not commit a criminal act under the laws of the State of Texas.”
Stephen Vladeck, a University of Texas law professor, told NBC-affiliated KXAN-TV before the motion to dismiss that homicide "doesn't apply to the murder of an unborn child if the conduct charged is 'conduct committed by the mother of the unborn child.'"
Vladeck later tweeted of the news Sunday that it is a “sobering reminder, among other things, to *always read the statute.*”
"It sure looks like the prosecutors just … forgot … that Texas’s murder statute expressly exempts from its scope a pregnant woman who terminates a pregnancy," Vladeck said in the tweet, linking to Texas penal code.
It sure looks like the prosecutors just \u2026 forgot \u2026 that Texas\u2019s murder statute expressly exempts from its scope a pregnant woman who terminates a pregnancy.\n\nhttps://statutes.capitol.texas.gov/Docs/PE/htm/PE.19.htm\u00a0\u2026\n\nA sobering reminder, among other things, to *always read the statute.*https://twitter.com/lafronterafund/status/1513202523666063360\u00a0\u2026— Steve Vladeck (@Steve Vladeck) 1649612098
The penal code states that criminal homicide “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; (2) a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent, if the death of the unborn child was the intended result of the procedure; (3) a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent as part of an assisted reproduction as defined by Section 160.102, Family Code; or (4) the dispensation of a drug in accordance with law or administration of a drug prescribed in accordance with law.”
Herrera’s arrest seems to exemplify exactly the kind of harm abortion rights activists have been warning of following a toxic Supreme Court decision last December. That’s when the court ruled to allow a Texas ban on abortions after six weeks with the provision that abortion providers have the right to challenge the Texas law in federal court. Many considered it early evidence of the high court's inclination to overturn the groundbreaking Roe v. Wade decision protecting abortion rights.
Justice Sonia Sotomayor wrote in a 48-page dissent at the time:
“My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them.”
Reprinted with permission from Daily Kos