Policing Pregnancy
Newsletter for April 12, 2022
Last Thursday, 26-year-old Lizelle Herrera was charged with murder for a “self-induced abortion,” taken into custody, and had a judge set her bail at $500,000. According to the Starr County Sheriff’s Office, “Herrera was arrested and served with an indictment on the charge of Murder after Herrera did then and there intentionally and knowingly cause the death of an individual by self-induced abortion.”
While most of the case details haven’t been released (I contacted the sheriff’s office but have heard nothing back), the indictment shows that the prosecutor brought the case before a grand jury, which returned an indictment on March 30 for causing death through “self-induced abortion.” Thus far, the story seems to be that Ms. Herrera went to the Starr County Hospital and someone there reported her to law enforcement based on something she said.
The Starr County District Attorney Allen Ramirez dropped the charges on April 10, after a protest at the jail and much lobbying by local groups, and released Ms. Herrera from jail saying it was “not a criminal matter.”
It’s not clear how law enforcement got to the original charges—or how the DA could have been unaware of such a novel and obviously controversial charging decision by a prosecutor in his office. The first explanation that springs to mind — SB 8—doesn’t get you there. It’s a civil right of action that deputizes private individuals to act as bounty hunters but only through civil means. Criminal laws surrounding abortion do not target women seeking medical care; they are specifically excluded from prosecution. Despite this, Texas Governor Greg Abbott’s commentary surrounding SB 8 as well as the law’s intent – to outlaw abortions entirely – point to a reasonable lay assumption that, as Abbot said, “every unborn child with a heartbeat will be saved from the ravages of abortion.” And, in an about-face from times gone by, anti-abortion groups are pushing criminalization, at least in spirit, by portraying women who get abortions as criminal actors rather than victims of a rapacious industry.
The post-Roe landscape is looking rough for all women. The Rio Grande Valley, the home of Starr County, is already a place where women are underserved through a lack of clinics. Many states like Texas, Florida, Oklahoma, Missouri, Idaho, and Mississippi have statutes in place that make abortions difficult to access in an uncertain legal landscape. SCOTUS seems poised to overrule Roe v. Wade in whole or in part. For low-income women, medical abortion never felt within reach, and cases like Herrera’s have been prosecuted before. In 2016, Indiana prosecutors charged a woman for feticide when she performed a medical self-abortion and went to the ER for blood loss. (Her conviction was overturned on appeal.)
Sheriffs, who skew politically conservative, are like most other elected officials in that they take political positions to suit their interests. You’d think reproductive justice would be outside of their political wheelhouse. But, you’d be wrong. Because it just isn’t American law enforcement without someone telling people what to do with their ladyparts.
Ex-Maricopa Sheriff Joe Arpaio was famously anti-abortion. He made it impossible for women in his jail to get one by demanding a court order for each abortion, which is absolutely ridiculous and not legal. When a number of criminal justice nonprofits sued over the court order requirement, Arpaio began to require prepayment of transportation and security costs before allowing incarcerated people to schedule an abortion. This, too, was ruled illegal, although Arpaio continued to follow his unconstitutional policy for years after the settlement.
Sheriff Mark Lamb in Pinal County is a more recent sheriff to campaign on a number of conservative issues, including his staunch opposition to abortion. He told me in our interview that he was strongly anti-abortion even though, he said, he was criticized for saying so during the campaign. And, regardless of what sheriffs say, there are a lot of them who kill pregnant women in jail. Take Tarrant County Sheriff Bill Waybourne, who let a woman give birth in a jail cell on the floor, alone. Her actual live infant died 10 days later.
As more states pass laws that criminalize reproductive health care, law enforcement will be left to exercise their own discretion on whether and how to arrest people who seek such care. Women have been and are arrested for alleged injuries to their unborn fetuses, generally because of drug use. In 2014, Tennessee passed what’s popularly known as a “fetal assault law,” which criminalized women who were using illegal substances for potential injuries to the fetus. It was generally considered the harshest law of its type in the country. State lawmakers allowed the law to expire, but before it did, women were charged for both drug use and for attempted self-performed abortions under the statute.
Before Roe v. Wade, police raids on abortion providers were common. In the 1950s, Pennsylvania state troopers raided a clinic and arrested women and doctors. According to historian Leslie J, Reagan, “[S]tate troopers put the women in police cars and brought them to a male doctor to determine whether a ‘surgical procedure’ had been performed. Late on a Friday night, the women submitted to a vaginal examination by the doctor, who then named them and testified about their bodies in court.”
Barring the outlawing of abortion access, sheriffs already exercise extraordinary discretion over reproductive health when people are in custody. While most states have various laws protecting the pregnant and guaranteeing some basic level of care, many jails do not. The Texas Commission on Jail Standards now requires reporting on the pregnant people booked into jail, and there are some basic medical guidelines, like offering prenatal vitamins and more food. However, most sheriffs leave the whole business to their medical provider – often a contractor – and do no more than minimally required. Some rural jails don’t have an OB that will treat people in jail. And, because there are always fewer women than men in jail, some jails have so little experience with incarcerated pregnant people that they don’t have protocols in place or any experience on how to keep women safe.
Even without laws that limit the types of medical care women can receive, the criminal system limits bodily autonomy by denying women proper health care in jail and prison. It separates women from their children, forces sterilization procedures on women, and, in some cases, forces women to give birth by denying them abortion procedures. Absolutely zero materials speak to the reproductive health of women who are not pregnant at the time of booking, even though we know women can become pregnant while incarcerated. (To my understanding, most jails don’t offer contraception. Jails that do often provide either IUDs or other long-term forms of contraception, which people who want to get pregnant later often do not want. Remember, not everyone in jail is there for a long time, like pretrial detainees who are exonerated or plead out to time served.)
The truth is that birth control methods are highly personal and require maintenance. And why would someone trust a jail health care provider to do what they say they will do, given a history of acts like sterilizing women without their consent? Plus, once outside of jail, what sort of services or promises are there where someone can get continuing care, like the removal of an IUD, etc? In a series of interviews with women at Rikers, many talked about their fears of being unable to reverse birth control (by removing an IUD, etc), a bad health outcome, or a jail health care provider who just didn’t care that much and was sloppy.
The criminal legal system can only be an enemy to bodily autonomy. Under chattel slavery, Black women were often impregnated against their will. Family ties were ignored, and children enslaved at birth. For many women who were disabled or not white, sterilization was seen as beneficial to society, regardless of individual desire. Even in recent times, some judges have required women to use birth control or consent to sterilization as part of their “treatment” in drug court; children are removed when parents go to prison. Pregnant women run the risk of being criminalized for behaviors that would normally not be scrutinized. And, once they give birth, women again face criminalization for poverty or a failure to meet certain middle-class expectations in terms of child-rearing or housing.
** Frontera Fund is collecting money for the legal defense and economic relief of Lizelle Herrera. Donate here.
***Note: I use “women” and “pregnant people” somewhat interchangeably, but this is not intended to exclude any individuals who also face threats to their bodily autonomy.