A 26-year-old woman was arrested and jailed in South Texas last week over a self-induced abortion just months after the state banned most abortions and weeks before the U.S. Supreme Court could roll back 50 years of federal abortion protections.
“When you don’t have anybody else to punish, do you just punish no one and let the abortion happen? Or do you punish the woman?” asked Mary Ziegler, a law professor at Florida State University who has studied the anti-abortion movement. “I don’t know what the state’s going to do with that, but that’s going to be the scenario sometimes. And I think this is sort of a harbinger of that debate to come.
Another Texas law passed last year shortening the time frame doctors have to prescribe abortion medications from 10 weeks to seven weeks also focused on punishment of the provider, not the patient.Throughout Texas’ history, courts have said abortion criminalization laws cannot be used against pregnant women and instead have focused on those who help facilitate an abortion, said Elizabeth Sepper, a law professor at the University of Texas at Austin.
But if Roe v. Wade, the landmark Supreme Court case that legalized abortion in 1973, is overturned by the high court’s now conservative majority, Texas and other states would be free to reverse course. Sepper noted that members of the Legislature have proposed laws that would make the penalty for an abortion capital punishment.
Farah Diaz-Tello, senior legal counsel for the abortion rights group If/When/How, which has been involved in Herrera’s case, said criminal cases such as hers often “arise when somebody misunderstands their obligations with respect to patient confidentiality versus mandatory reporting.”
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