In 2019, when heartbeat bills were in vogue, elected prosecutors around the country — including former California Attorney General Xavier Becerra, now leading the U.S. Department of Health and Human Services — signed a letter promising not to prosecute abortion crimes. Four Texas district attorneys joined the letter: Dallas County District Attorney John Creuzot, Bexar County District Attorney Joe Gonzales, Nueces County District Attorney Mark Gonzalez, and Fort Bend County District Attorney Brian Middleton.
After a Starr County woman named Lizelle Herrera briefly faced murder charges for a self-induced abortion, the four prosecutors joined Travis County District Attorney José Garza in another letter renewing their promise.
“Using the criminal legal system and an interpretation of murder that has no grounding in the law to punish women — and leveraging confidential medical information and eroding vitally important medical provider/patient relationships in doing so — is beyond the pale and will have devastating consequences,” the five wrote.
“Women will be afraid to seek medical treatment even if they are dying. We cannot condone such cruelty or this distorted use of our criminal legal system. And we promise to continue fighting for the rights of women in this state and elsewhere and using our discretion as prosecutors to avoid these tragic results.”
District attorneys enjoy the discretion to choose which crimes to prosecute. For example, Creuzot does not prosecute most first-offense marijuana possession crimes, and Garza urges his prosecutors to seek plea deals below the statutory minimum for accused offenders.
The reversal of Roe would allow Texas district attorneys to directly prosecute anybody besides the mother herself that performs or aids an abortion. Texas passed a law in 2021 called the Human Life Protection Act which would ban elective abortions around the state, making an exception for procedures meant to save the mother from death or “substantial impairment of a major bodily function.” The law would take effect 30 days after the reversal of Roe and punish abortions as first-degree felonies.
If these district attorneys maintain the leeway they’ve promised, then abortion in these five counties, among the largest in Texas, would remain unprosecuted even after the end of Roe.
In fact, some Texas Republicans say prosecutorial discretion is the only reason why abortion funds don’t currently face charges for “furnishing the means for procuring” abortions, a crime under the state’s yet-unrepealed abortion ban.
State Rep. Briscoe Cain (R-Deer Park) has sworn to file a bill in the 2023 Texas legislature that will allow district attorneys to prosecute abortion crimes in areas outside their jurisdiction, including crimes under these older statutes.
Meanwhile, if the Supreme Court overturns Roe before the Texas legislature meets again in January, the Human Life Protection Act outlines punishments besides direct criminal prosecution.
The law makes elective abortion a civil offense as well as a felony. It authorizes the Texas attorney general to seek civil penalties of at least $100,000 from offenders for each violation.
Additionally, doctors, nurses, or other medical professionals that carry out elective abortions would lose their licenses.
Both SB 8 and the Human Life Protection Act recognize in their texts that Texas has never repealed its old abortion ban and accompanying statutes, including the ban on furnishing abortions that Cain says is currently actionable. However, while the Human Life Protection Act makes elective abortions a felony, the older statute punishes it with a maximum of five years imprisonment.
Lastly, more than 40 cities around Texas have banned abortion locally. These cities primarily enforce their bans through civil lawsuits. However, in the event that the Supreme Court overturns Roe, these cities will also authorize direct municipal penalties for anybody besides the mother herself that performs or aids an abortion within city limits. Two of these cities, Cisco and Slaton, allow lawsuits and municipal penalties against anybody that aborts an unborn resident of these towns, regardless of where the abortion takes place. Abilene voters will consider a similar ordinance in the upcoming November election.
All in all, the discretion of pro-choice district attorneys might not totally safeguard abortion in their counties. But until the Supreme Court issues a definitive decision, the Human Life Protection Act, older statutes, and local penalties will likely remain untested.
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