If Roe v. Wade is overturned, Texas D.A. offices would become a new battleground

Protesters hold signs outside of the Starr County Jail in Rio Grande City on April 9, 2022. People protested in support of Lizelle Herrera, a woman being held at the jail on a count of murder for allegedly having a self-induced abortion. | Michael Gonzales/Texas Tribune

A few weeks ago, in the aging, sand-colored Starr County Courthouse, 12 average citizens gathered to decide whether there was reason to believe a murder may have been committed.

Grand jury proceedings are one-sided, with only the district attorney’s office permitted to offer evidence. They’re also kept secret, so it’s unknown who from the Starr County district attorney’s office handled the case and how it was presented to the jurors.

But from that hearing, the grand jury decided there was reason to charge 26-year-old Lizelle Herrera with murder for a “self-induced abortion.” Herrera was arrested on a $500,000 bond and booked into the Starr County Jail even though Texas’ murder statute explicitly prohibits bringing murder charges against a pregnant person in the “death of an unborn child.”

Three days after the initial arrest, Starr County District Attorney Gocha Ramirez said he would be exercising “prosecutorial discretion” by dropping the charges.

“In reviewing applicable Texas law, it is clear that Ms. Herrera cannot and should not be prosecuted for the allegation against her,” he wrote in a press release.

Several lawyers and advocates in Starr County — a tiny, rural county in the Rio Grande Valley — told The Texas Tribune that they believe this disastrous misstep from Ramirez’s office was born out of prosecutorial inexperience, not anti-abortion animus. Ramirez, a Democrat elected in 2020, did not respond to requests for comment.

But the case shines a light on the huge and often unchecked power that local prosecutors wield in deciding which cases to pursue, what charges to push for and what evidence to present to grand juries, a power that will become only more consequential if the U.S. Supreme Court overturns the constitutional protection for abortion this summer.

The role of district attorneys in abortion cases

Nearly 50 years after it was decided, Roe v. Wade is one of the country’s best known and most consequential Supreme Court rulings. But originally, it was just a lawsuit brought by a woman — known as Jane Roe — against a Texas district attorney, Henry Wade.

Wade was not a virulent abortion opponent; according to the Washington Post, he never even read the Supreme Court decision that bore his name.

But lawyers representing Roe needed someone to sue if they were going to get the courts to overturn Texas’ total ban on abortions.

As elected prosecutor for Dallas County, Wade had the power to bring charges against any county resident who violated the law. To block Texas’ abortion law, Roe’s lawyers would have to start by blocking Wade. So they filed a suit challenging Wade’s authority to enforce a law they alleged was overly vague and violated the right to personal privacy.

In the end, of course, this case blocked more than just one local district attorney — the U.S. Supreme Court, in a move that shocked many and stoked 50 years of controversy, ruled that there was a constitutional protection for abortion up to the point of fetal viability outside the womb, generally considered to begin at 24 weeks gestational age. No district attorney in any jurisdiction in the whole country could bring charges against someone merely because they performed or obtained a legal abortion.

But now, the U.S. Supreme Court is reconsidering that decision. If the court overturns Roe v. Wade this summer, as many believe they will, individual district attorneys may once again become responsible for deciding if and when to pursue criminal charges in abortion cases.

Texas has a “trigger” law on the books that would automatically make it a felony to “knowingly perform, induce or attempt an abortion” except to save the life of the pregnant person.

That law does not allow for the pregnant person to be prosecuted for having an abortion, but it would open up a whole world of legal questions that district attorneys, defense lawyers and medical providers would have to navigate.

“In that first, let’s say, five years of prosecution, how many mistakes get made along the way while the law is being developed?” asked Missy Owen, a North Carolina-based attorney and board member of the National Association of Criminal Defense Lawyers. “And whose lives have to pay for it?”

Prosecutorial discretion

Many abortion rights advocates talk about the “two Americas” that would be created if the Supreme Court allows states to create their own abortion restrictions. About half of all states likely would ban abortion to some degree, according to the Guttmacher Institute.

But even within Texas, there may be two distinct realities. Five Texas district attorneys — from Dallas, Travis, Bexar, Nueces and Fort Bend counties — have publicly promised that they will not pursue abortion-related criminal charges if Roe v. Wade is overturned. Others are expected to quietly decline to take these cases.

Travis County District Attorney José Garza said he does not believe his office should be involved in criminalizing personal medical decisions between a pregnant person and their doctor.

“We are very focused on holding accountable people who commit acts of violence in our community,” he said. “Pulling resources away from that to focus on this kind of case would be reckless and endanger the safety of our community.”

In other jurisdictions, though, district attorneys may take an opposite approach, either due to personal anti-abortion leanings or political pressure.

Owen, who authored a report on abortion-related criminalization, said there’s a useful foreshadowing in how voter fraud cases have played out in recent years.

“These cases don’t get prosecuted evenly across the state,” she said. “They get prosecuted selectively, often in counties where there’s a district attorney’s race going on. … It’s really up to the discretion of the particular district attorney.”

Prosecutorial discretion gives district attorneys a lot of power in their own jurisdiction — power to take cases or not, to decide what charges to present and to choose how to frame evidence to the grand jury.

There’s not much oversight of how prosecutors wield that discretion, said Charles “Rocky” Rhodes, a professor at South Texas College of Law Houston.

“Except that there’s always political checks on them for failing to prosecute crimes that their citizens want prosecuted,” he said. “That’s how you get defeated next time you run for district attorney.”

But state Rep. Briscoe Cain, R-Deer Park, is planning to introduce legislation that could radically change that balance of power.

In a letter sent to abortion-funding nonprofits last month, Cain said he intends to introduce legislation that would allow district attorneys to prosecute abortion-related cases outside their home jurisdiction “when the local district attorney fails or refuses to do so.”

Garza, the Travis County district attorney, said Cain’s statements don’t change his thinking on these cases.

“All I can say is that the courts and the state constitution have been very clear that elected district attorneys have sole criminal jurisdictions in their community,” he said.

The next frontiers

But Cain’s proposition does point to a looming question: If Roe v. Wade is overturned and the trigger law goes into effect, what’s next?

If the trigger law goes into effect, Rhodes said it’s likely that abortion clinics will comply with the law, as they have since Texas passed a ban on abortions after about six weeks of pregnancy. The attention, he said, will then shift to the myriad other ways people access abortion care when clinics aren’t an option.

“There are going to be some very difficult constitutional issues that we can already see,” Rhodes said. “States may try to criminalize advocacy and [financial] assistance [for abortions] or may try to keep women from having an abortion in another state.”

District attorneys likely would end up on the front lines of test cases, legal challenges and new legislative efforts to rein in what’s left of abortion access in Texas.

And even though the trigger law prohibits prosecution of the person who got the abortion, many advocates worry most about the pregnant Texans who will get caught in these legal battles — perhaps without adequate defense.

“Most criminal defense lawyers don’t have any idea about fetal maternal medicine,” said Owen. “This is a dangerous situation that will be an added stress to public defenders’ offices, to defense bars and to prosecutors.”

While the details of the Herrera case remain murky, Owen said it’s a harbinger of what may play out over the coming months and years as the legal system navigates a brand-new set of rules.

“We see the damage that occurs, right at the moment of charging. While the law and the lawyers are figuring it all out, people’s lives will be marred forever,” she said. “We’ve seen what happens. You and I both know Lizelle Herrera’s name.”

This article was reposted from Texas Tribune.

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CONTRIBUTOR

Eleanor Klibanoff

Eleanor Klibanoff is the women's health reporter at The Texas Tribune. She was previously with the Kentucky Center for Investigative Reporting, where she covered sexual assault, domestic violence, and policing, among other things.