Supporters of those who seek or provide abortions should recognize that law enforcement and reactionary politicians don’t need the courts or the law.
News of Lizelle Herrera’s arrest in Texas last week sent a chill down the spines of everyone dreading the destruction of reproductive protections around the country. The 26-year-old was arrested in connection to a “self-induced abortion” and indicted on a murder charge for “intentionally and knowingly” causing the death of “an individual.” Within two days, with scant public details and confusion spreading about what possible murder statute could apply, the district attorney of Starr County announced — thankfully — that the charge would be dismissed.
The prosecutor’s decision was not a show of active support for reproductive justice. There was quite simply no basis to proceed with the charge because there is no statute on the books in Texas — yet — under which pregnant people can be charged with murder in connection with “the death of an unborn child.” The related criminal charges would instead be aimed at abortion providers. (The state’s new abortion ban unconstitutionally prohibits the procedure after six weeks by enabling legalized vigilantes to bring civil, not criminal, cases.)
Even with the charges dropped, Herrera’s horrifying ordeal tells us much about the current shape of the war on reproductive freedoms. From local law enforcement agencies to governors’ offices, anti-abortion crusaders are already acting as though Roe v. Wade is dead and abortion is fully criminalized. A post-Roe reality has been the de facto status quo for years in dozens of states where abortion can’t be accessed. What we’re observing now is an escalation in which abortion-seekers and providers are terrorized as violent criminals, even prior to the act being formally criminalized.
The case that we cannot rely on the courts to protect reproductive rights is only made stronger when examining this campaign of terror against seekers and providers of abortions: Those who would deny these people’s autonomy or block their access to reproductive health care are carrying out their campaign by employing tactics beyond the law. This isn’t just about judges ruling in favor of one side or the other.
The forces at work here go beyond the criminalization of abortions — this is about how policing works. Other examples abound: Daily harassment of young Black people and other people of color by police, consistently without legal grounds, serves to to control and immiserate entire marginalized communities. State forces mark certain people as surplus, as criminal. The fascist campaign against reproductive rights has placed pregnant people — particularly pregnant people of color without resources — within that category.
When it comes to abortion rights, right-wing Christian fanatics have the country’s highest court on their side, but the campaign of terror doesn’t hew to the law itself. Indeed, political leaders act in brazen contravention of existing constitutional protections, which the Supreme Court has not yet undone. And they know exactly what they’re doing: These Republicans have an acute awareness that the disciplinary functions of law enforcement go beyond what existing laws determine on paper to be legal.
It happens all the time; there was a striking recent example in Texas. When state Attorney General Ken Paxton asserted earlier this year in an opinion, endorsed by Gov. Greg Abbott, that gender-affirming health care constitutes child abuse, he did not change any existing laws on the books. He simply directed the state’s child protective services to treat supportive parents of trans kids as abusers. Abbott didn’t need to sign a new law to enforce a new legal reality. Families are already being investigated under the directive, even though it is being challenged in court.
On Wednesday, Oklahoma Gov. Kevin Stitt, a Republican, signed a near-total abortion ban into law, which threatens prison for providers. “I know this bill will be challenged immediately by liberal activists from the coast,” Stitt said. And he’s correct, because his law is not merely morally hideous, it is also patently unconstitutional. Or more precisely, it is unconstitutional for now.
The courts do not offer a way out of this violent status quo and neither, at present, does our spineless legislature.
With the likely felling of Roe in the Supreme Court this year, 26 states are ready with laws to enact abortion bans. Republicans like Stitt, though, are already forging this reality. The local prosecutor who charges a woman with murder for a self-induced abortion is helping create this world too, whether the charges hold up or not. Just examine how Herrera ended up in the sights of law enforcement: This new reality spurred hospital employees to report her case to the police in the first place.
The courts do not offer a way out of this violent status quo and neither, at present, does our spineless legislature. Organizing, support networks, knowledge sharing, and resource and abortion pill provisions are the strongest tools we have. When such actions are deemed illegal, the fight for reproductive justice will demand taking risks.
With the post-Roe reality already emerging, we need to lend our support to those on front lines of the struggle. Herrera’s ordeal points to where we can help. When she was held on $500,000 bail, it was not a major, national nonprofit that raised the money for her release. It was local organizers, led by women of color. It’s obvious whose lead we should be following.