Abortion is legal in the U.S.—as it has been since the Supreme Court’s famous Roe v. Wade decision in 1973—so almost everyone was confounded after 26-year-old Lizelle Herrera was arrested on murder charges in Texas for what authorities called a “self-induced abortion.”
Those charges have now been dropped, but Herrera is among the first Americans to be subjected to official action that is eerily similar to the dystopian world in The Handmaid’s Tale. Although it is likely that she will not be the last.
Although abortion laws and restrictions vary by state, it was not clear which legal statute Herrera was alleged to have violated. Texas law explicitly exempts a woman from a criminal homicide charge for aborting her pregnancy.
Some states still have abortion laws that would change how women may access reproductive health care, including ways to terminate an unwanted pregnancy if Roe v. Wade were overturned.
Texas enacted a law in September that bans abortion after six weeks of pregnancy, using a novel legal strategy that empowers private citizens to enforce the law through civil litigation. The US Supreme Court faced withering criticism over its failure to stay that law—which directly contradicts the constitutional rights defined in Roe—but that law does not appear to have applied in this case.
Herrera faced a criminal charge, not a lawsuit. Additionally, that Texas law does not allow lawsuits to be filed against the person who had an abortion, only those who helped facilitate it.
The case was brought to the attention of law enforcement personnel by a hospital, but Starr County Sheriff Rene “Orta” Fuentes had no authority to have Herrera arrested on Thursday, when she was charged with murder.
According to a sheriff’s office spokesperson, Fuentes ordered Herrera arrested after it was learned she “intentionally and knowingly cause the death of an individual by self-induced abortion.”
“In reviewing applicable Texas law, it is clear that Ms. Herrera cannot and should not be prosecuted for the allegation against her,” District Attorney Gocha Allen Ramirez wrote.
After charging Herrera with murder, forcing her to spend three days in jail and drawing national attention, Starr County officials announced Sunday they would change course and move to dismiss the case.
Herrera was arrested Thursday and held in jail on a $500,000 bond, court records show despite the fact that had she done what she was accused of doing, there would still be no crime.
Herrera was released on bail Saturday, according to jail records and a local abortion fund.
The district attorney had presented the possible murder charge to a grand jury last month, leading to her indictment and arrest, before his Sunday announcement.
Ramirez, the district attorney, said in a news release that is would have been a “dereliction of their duty” for the Sheriff’s Office to ignore the incident although no crime occurred.
Herrera was arrested in Texas’ 28th Congressional District, where Jessica Cisneros is running for the Democratic nomination for the U.S. House seat now held by incumbent Henry Cuellar.
Cisneros and Cuellar are on the ballot in a Democratic primary runoff on May 24, 2022.
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