In a statement made to the Associated Press last week, the Starr County Sheriff’s Office merely stated that Herrera was charged after “intentionally and knowingly causing the death of an individual by self-induced abortion.”
On Sunday, the district attorney’s office stated that this was “not a criminal matter.”
“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.
The case was brought to the attention of the sheriff’s office by a hospital, according to Ramirez’s statement.
Calixtro Villarreal, Herrera’s attorney, declined to comment when reached by phone Sunday.
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.
But that law does not appear to have applied in this case. Herrera faced a criminal charge, not a lawsuit. Additionally, that law does not allow lawsuits to be filed against the person who had an abortion, only those who helped facilitate it.
“If [prosecutors] are literally charging her with murder under Texas law, it’s likely they either forgot about the exception for murder or they have some other theory for why this could apply,” Steve Vladeck, a professor at the University of Texas School of Law who specializes in the federal courts and has closely followed the Texas abortion ban, said Saturday.
Abortion rights organizations quickly mobilized to support Herrera. The Frontera Fund, a group that raises money for Texas patients to access abortions, organized a rally Saturday morning outside the Starr County jail and raised awareness of the case on social media.
“This arrest is inhumane,” Rockie Gonzalez, founder of the Frontera Fund, said in a statement Saturday. “We stand in solidarity with you Lizelle, if you are reading this, and we will not stand down until you are free.”
Herrera’s arrest came as Republican-led states across the country pass a flurry of antiabortion legislation ahead of a Supreme Court decision this summer that could overturn or significantly weaken Roe v. Wade, the case that has protected the constitutional right to abortion for nearly 50 years.
Her case could be an early sign of what is to come if Roe is overturned, Vladeck said.
When prosecutors charged Herrera, they might have been thinking of a pre-Roe abortion ban that is still on the books in Texas, Vladeck added, but has not been in effect since 1973 because it is unconstitutional under Roe.
Nine states still have pre-Roe bans, which could come back to life depending on what the Supreme Court decides in June.
“We could see more of this,” Vladeck said.
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