COMMENTARY: "Lizelle Herrera’s case by Tina Vasquez, published by Prism, on April 21, 2022. (Tina Vásquez is a contributing writer at Prism. She covers gender justice, workers' rights, and immigration.)
SUB-HEADING: "Cross-movement collaboration at the intersections of criminal and reproductive justice helped local organizers mobilize quickly."
GIST: "On April 8, a small news outlet covering Texas’ Rio Grande Valley published a story that sent shockwaves through the reproductive justice movement. A woman named Lizelle Herrera was arrested April 7 by the Starr County Sheriff’s Office and charged with murder for allegedly having a self-induced abortion, which is when a person chooses to perform their own abortion outside of a medical setting. According to her indictment, Herrera “intentionally and knowingly” caused “the death of an individual.” She was held at the Starr County Jail, and her bond was set at $500,000.
In the days since Herrera’s story was made public, there has been a great deal of reporting about whether her criminalization was simply “a hasty error” by a district attorney or a case that should be treated as “a warning” that “foreshadows [a] post-Roe future.” But for reproductive justice advocates in Texas who are forced to navigate some of the most restrictive abortion laws in the nation, Herrera’s case isn’t merely a sign of what’s to come; it’s a reality that low-income women of color overwhelmingly shoulder. It’s also the inevitable result of complicated, convoluted anti-abortion laws.
Herrera’s case was shocking but predictable. She is a woman of color who was criminalized for an alleged self-managed abortion in an overwhelmingly Latinx area of Texas that is disproportionately affected by the state’s anti-abortion laws. And—consistent with research done by the legal advocacy organization If/When/How: Lawyering for Reproductive Justice—Herrera’s case is part of a larger pattern. Marginalized communities under state surveillance and subjected to over-policing are the same communities most likely to be criminalized for pregnancy outcomes, including Black, Indigenous, and other people of color, disabled people, immigrants, and LGBTQ+ people.
As Prism previously reported, abortion stigma increases when it comes to self-managed abortion, and so does criminalization—especially for people of color. The public details of Herrera’s story appeared to have all of the hallmarks of a case that would drag out for months, if not years—and advocates who spoke to Prism said they were preparing for the worst.
When the news of Herrera’s case came to light, organizers began discussing potential protests outside of court hearings and were thinking through a public campaign to support Herrera in getting her charges dropped. The Frontera Fund, a Rio Grande Valley (RGV)-based abortion fund, quickly mobilized in Herrera’s defense. The group organized a protest at the Starr County Jail the morning of April 9 and urged people to call and demand Herrera’s release. However, Herrera’s case moved at breakneck speed.
By the afternoon of April 9, If/When/How’s Repro Legal Defense Fund paid Herrera’s bail, and she was released to her family. On April 10, the Starr County District Attorney, Gocha Ramirez, issued a press release, stating that Herrera’s arrest was improper. On April 11, he filed a petition to drop the charges.
On April 12, five Texas district attorneys issued a statement supporting Ramirez’s decision to drop the murder charge against Herrera while also condemning the state’s effort to criminalize abortion. In a landscape where you can potentially be charged with murder for allegedly ending a pregnancy, the outcome of Herrera’s criminalization was not expected.
Herrera has not made any public comments regarding her story, and the events that led to her criminalization are still murky. What is clear is that misconceptions, misunderstandings, and misinformation have surrounded Herrera’s case. To help set the record straight, Prism spoke to the Texas director for policy and advocacy at the National Latina Institute for Reproductive Justice, Nancy Cárdenas Peña; If/When/How senior counsel and legal director, Farah Diaz-Tello; and the Frontera Fund’s Rockie Gonzalez and Zaena Zamora, who provided insights during an April 13 press conference.
Cultural context:
Early reporting on Herrera’s case, especially in Spanish language media, mentioned that she may have obtained abortion medication in Mexico. While this remains unverified by Herrera and her attorney, advocates say it’s worth unpacking.
During a Frontera Fund press conference, executive director Zamora explained that while it’s essential to understand how abortion restrictions vary from state to state, it’s also important to understand how various communities navigate these restrictions—especially in Texas’ Rio Grande Valley (RGV).
The RGV spans four different counties and is home to more than a million people, a third of whom live below the federal poverty level and don’t have health insurance. Accessing reproductive health care in this region has never been easy, and for the region’s sizeable undocumented population, it may also come with increased risk of criminalization. The closest clinic offering abortion care is Whole Woman’s Health, located at the southern tip of the RGV in McAllen, Texas. Not only does this mean that undocumented immigrants may face Border Patrol checkpoints, but the McAllen clinic is also heavily policed because of the anti-choice protestors who harangue and surveil those seeking care.
Abortion care can also be very expensive in Texas, especially in the RGV where the starting cost for abortion medication is around $800, Zamora explained. In Mexico, the same medication costs less than $100. For those in border communities who are able to go to Mexico to access health care, cost is a primary motivating factor.
“It is culturally normal in the Rio Grande Valley to get your health care in Mexico,” said Gonzales, the Frontera Fund’s founder. “Growing up here, we didn’t go to American dentists or doctors. What we do is go to Mexico because it’s quick and because it’s cheap and because it’s good health care. We have all grown up that way. It’s very normal.”
Gonzalez expressed that it was difficult to hear how the media sensationalized the possibility that Herrera may have gone to Mexico to access abortion medication, as if it’s something “scandalous.”
“We want to pull people away from sensationalizing this, like [it’s some] horrible trek to go into Mexico to get this care behind dark alleys. No, it’s part of Sunday brunch to go to the pharmacy and get [medications] that you can’t buy over-the-counter here,” Gonzalez said.
The fact that it was a Latina from the RGV who was charged with murder and held on a half-a-million-dollar bond for allegedly self-managing didn’t come as much of a surprise to any of the reproductive justice advocates who spoke to Prism.
“We’ve been saying since the onset, every time you pass any type of abortion restriction, it’s going to affect—first and foremost—low-income people, people of color, and people [from] marginalized communities,” Zamora said.
If we take seriously the idea that people should be free to make autonomous decisions about their reproductive lives, that has to include freedom from state control.
FARAH DIAZ-TELLO
And this certainly isn’t the first time that a Latina in the state has been criminalized for accessing care. In 2015, the arrest of Blanca Borrego had a chilling effect on immigrants seeking health care. The undocumented mother went to the Northeast Women’s Healthcare Clinic in Atascocita, Texas, for an appointment with her gynecologist. She allegedly presented clinic staff with a false I.D., and a staff member called the sheriff’s department. Sheriff’s deputies placed Borrego in handcuffs and arrested her in front of her children.
Tragic stories involving Latinas are not uncommon within the reproductive health, rights, and justice movements—including the story of Rosie Jimenez. The 27-year-old single mother from McAllen died in 1977 because of complications from an illegal abortion. She was the first known woman to die because of the Hyde Amendment.
Hyde, which is still in place today, eliminates federal Medicaid funding for abortion. So while abortion was legal in 1977, the Hyde Amendment pushed low-income people like Jimenez to seek out less expensive options because of the inability to use federally subsidized insurance for abortion care. As Alexa Garcia-Ditta wrote for The Texas Observer, Jimenez’s death remains “a powerful reminder of what happens when abortion becomes inaccessible.” The hospital where Jiminez died is now the site of McAllen City Hall. Located across the street is Whole Woman’s Health, the only abortion clinic serving the Rio Grande Valley.
Lessons learned:
When it was still unclear what triggered Herrera’s criminalization and the direction her case would go in, there was a lot of chatter on social media about the need for abortion funds to work closely with bail funds and how the reproductive rights movement should join the movement to defund the police. The assumption seemed to be that this kind of cross-movement work isn’t already happening.
Organizations like If/When/How operate at the intersection of reproductive justice and criminal justice. More broadly, the reproductive justice movement was formed by Black women who recognized that the mainstream women’s rights movement, which continues to be led by middle class and affluent white women, could not defend the needs of women of color and other marginalized people. Advocates in this movement have been clear that decreasing incarceration is a matter of reproductive justice.
Cárdenas Peña said more cross-movement work could be happening, but that this work requires time—and that can be hard to come by in a state like Texas, where immigrant communities and abortion access are under constant attack.
“I will just be really honest with you, I think we’re struggling to meet the demands of the environment here in Texas where things feel like they are on fire every single day,” she said. “But we want people to know that we’re invested in this fight and we’re going to give it everything we’ve got.”
Even if people weren’t being criminalized for having abortions, criminalization, detention, deportation, and incarceration are still reproductive justice issues because they remove people from their communities, destroy families, and destroy people’s ability to make decisions about their bodies and their families, Diaz-Tello explained.
“If we take seriously the idea that people should be free to make autonomous decisions about their reproductive lives, that has to include freedom from state control,” the attorney said.
Gonzalez issued the reminder that the Frontera Fund works at the intersections of criminal justice, reproductive justice, and immigrant justice and without cross-movement organizing and relationships, it would have been impossible to provide a rapid response to Herrera’s criminalization. This was echoed by Cárdenas Peña, who said that failing to work in cross-movement collaborations isn’t an option for reproductive justice advocates in Texas.
As groups in the Rio Grande Valley scrambled to Herrera’s defense after her arrest was made public, some of the most powerful and well-fundednational reproductive rights organizations were silent about the situation unfolding in Texas. Reproductive justice advocates who spoke to Prism said that silence was disappointing, but also expected. Tensions have long existed between large reproductive rights organizations and smaller groups doing work on the ground. Cárdenas Peña said it’s her guess that national reproductive rights organizations were waiting for more information about Herrera’s case to be released before deciding to publicly comment—and that’s a luxury grassroots groups in the RGV can’t afford.
While she acknowledged that organizers in the RGV can feel protective of their work and wary of outsiders, Cárdenas Peña said it’s for good reason. There is a long history of people coming into the RGV, fundraising off of the RGV, bringing some actions, and then leaving—and organizers in the state have been left having to deliver on the promises that were made to their community members.
Still, she said it’s in everyone’s best interest to work collaboratively across movements and among local, state, and national organizations.
“The RGV is very small and very mighty, but some help would definitely take a lot of work off our backs,” Cárdenas Peña said. “Lizelle isn’t the first case like this, and she won’t be the last. As we continue to talk about this kind of criminalization, RGV voices have to be at the center and at the forefront of these conversations.”
Based on reports, Lizelle Herrera was criminalized in part because a health care provider wrongly reported her to law enforcement for self-managed abortion. Prism spoke with a Texas-based abortion care provider and advocates who shared how widespread confusion about reporting requirements and abortion laws can turn doctors into agents of the state, and what’s needed to combat the dangerous misinformation in this space. Read more about reporting requirements and the criminalization of abortion here.
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
