Even as Americans anticipate a Supreme Court ruling striking down Roe v. Wade, it’s astonishing to recognize how far along the road we’ve already traveled towards the possibility that a woman who ends her pregnancy could be prosecuted for murder and face the death penalty.
The case of Lizette Herrera, a 26-year-old South Texas woman, is already well known. She was charged with murder on April 9 for “intentionally and knowingly” causing the “death of an individual by self-induced abortion,” according to the Texas Starr County Sheriff’s Office.
Her bail was set at $500,000. Three days later, the county’s District Attorney dropped the charges and released her from jail, after a statewide (and nationwide) outcry.
Yet the Herrera case is not unusual. Texas women are exempt from criminal charges under SB8, the state’s highly restrictive new anti-abortion law. Yet women around the U.S. were being charged with murder, feticide and manslaughter for abortions, miscarriages and still-born births even before that Texas law was passed in May 2021.
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- In Tennessee, in 2017, Anna Yocca spent a year and a month in jail charged with attempted murder for trying to have an abortion with a coat hanger. She pleaded to a lesser charge in exchange for her immediate release.
- In Alabama, in 2019, a woman was charged with manslaughter after she was shot in the stomach during a fight while she was pregnant. The charges were later dropped.
- In Oklahoma last year, Brittany Poolaw was sentenced to four years in prison in after a miscarriage although doctors said it was caused by a genetic abnormality and placental abruption, not methamphetamine..
- In California, also last year, a woman was charged with murder and spent more than a year in jail, after a stillborn birth. The charges were later dropped.
We can expect things to get worse if the Court rules as the leak this week suggested it will.
If the U.S. Supreme Court strikes down Roe v. Wade or weakens it, charges of “homicide, feticide, or aggravated assault” against women will follow, according to the National Association of Criminal Defense Attorneys (NACDL).
The NACDL has warned “legislative overreach” is “turning reproductive rights into criminal wrongs.”
In 2021, a Texas lawmaker filed a bill that would “abolish and criminalize abortions, leaving women and physicians who perform the procedure” to face the death penalty. The bill had no exemptions for rape or incest.
Similar bills were introduced in the Texas legislature in 2017 and 2019, according to The Texas Tribune.
But women were being charged with murder and “feticide” even after Roe v. Wade became the law of the land in 1973 although it made access to safe and legal abortion “a constitutional right.”
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- In Utah, in 2004, Melissa Ann Rowland was charged with murder after refusing to have a C-section before one of her twins was stillborn. The murder charge for her “depraved indifference to human life” was dropped. She was ultimately sentenced to 18 months’ probation for lesser counts of child endangerment.
- In Iowa, in 2010, Christine Taylor was charged with attempted feticide after she fell down the stairs at home. The charge was ultimately dropped.
- In Mississippi, in 2014, Rennie Gibbs was16 years old when she delivered a stillborn baby and was charged with “depraved-heart murder.” Medical records later showed she had a miscarriage, and the murder charge was dropped.
- In Indiana, in 2015, Purvi Patel was sentenced to 20 years in prison for feticide. Her sentence was later overturned.
In October 2021, Slate reported that “21 people” had been arrested for trying to abort themselves or helping a woman get an abortion in the U.S., and “hundreds more” were arrested after they had miscarriages.
According to the BBC, by May 2021, the Guttmacher Institute and Planned Parenthood found more than 500 abortion restrictions had been introduced in the United States. The Institute also reported that more abortion restrictions were enacted in 2021 than in any year since Roe v Wade became law in 1973.
From 1973 to 2005, 412 women were arrested for “harming fetuses,” according to an article in the Duke University Press. And “three times that number faced criminal penalties,” from 2006 to 2020. Many were African American.
Without the full force of Roe, the Center for Reproductive Rights predicts, abortion “…likely would be prohibited in 24 states and three territories.”
If Republicans retake power in the House following the midterms, a nationwide ban might follow.
Local prosecutors possess huge and often unchecked power in deciding when to press for murder charges. Those powers could become even more “consequential” if Roe ends.
And in states where the death penalty still exists, like Texas, a guilty verdict could lead to even more tragedy for women who decide to end their pregnancy.
Additional Reading: More States Shield Against Rogue Abortions Prosecutions, Pew Stateline, May 4, 2022
Jodie Sinclair is a former TV news reporter with a master’s degree in journalism from Columbia University. She is the co-author of two nationally published books about the criminal justice system written with her husband, a former Louisiana inmate on Death Row, and the author of a recently released memoir.
1 Comment
If a girl under eighteen has a stillbirth or a miscarriage, that is not suspicious, but normal. So young a body is often not physically prepared to carry a pregnancy to term. Let us not even speak of delivery, where an undeveloped pelvis can have disastrous consequences for mother and baby both.