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Texas Abortion Funds Work to Reduce Looming Harms of Post-“Roe” Criminalization

Texas organizers already know what it’s like to live in a post-“Roe” reality where people are prosecuted for abortion.

Austin area protesters march down Congress Avenue after rallying against the Supreme Court's potential reversal of Roe v. Wade at the state capitol on May 3, 2022 in Austin, Texas.

Abortion support networks in Texas, including nonprofit organizations that provide abortion funding to low-income and marginalized people in the state, already know what it’s like to live a post-Roe v. Wade reality.

Even before the state legislature passed its harsh six-week abortion ban in the form of Senate Bill 8, Gov. Greg Abbott issued an executive order at the onset of the pandemic in March 2020 temporarily banning any abortion not necessary to save the life of the pregnant person as a “medically unnecessary” procedure. The order remained in place for about a month as it was jockeyed in the courts, and during that time, reproductive rights advocates in Texas learned a few things about how to operate in a state in which almost all abortions were banned.

Activists are turning back to that knowledge now after a draft Supreme Court opinion overturning Roe and Planned Parenthood v. Casey was leaked Monday, bracing once again to live that reality if the high court’s final ruling triggers a state statute automatically making it a felony to “knowingly perform, induce or attempt an abortion” except to save the life of the pregnant person.

Texas-based nonprofit abortion fund staffers and grassroots abortion support organizers tell Truthout they’re ramping up efforts to support people traveling out of state for their abortion needs. They already had to step up their support and funding to send people to farther-away states after Oklahoma’s legislature passed a near-total abortion ban modeled on SB 8’s civil lawsuit enforcement mechanism last month.

If all 23 states with “trigger,” preexisting or other kinds of abortion bans go into effect in the event of Roe’s reversal, Texas organizers say they would have to regularly send abortion seekers as far as California, where Gov. Gavin Newsom’s promises of expanded access will prove crucial to accommodating an influx of abortion seekers from newly restricted states. That would prove challenging — even with their current experience and training under Texas’s harsh abortion restrictions, they say.

“It’s going to be more scarce for people to be able to get to clinics, the wait times will be longer, when people get to clinics, they’re going to be more pregnant, meaning that their procedures will be more complicated and more expensive,” says Erika Galindo, who is organizing program manager at the Texas-based Lilith Fund for Reproductive Equity, which provides abortion funding to low-income and marginalized Texans.

Abortion rights organizers say they are also working to distribute free reproductive health kits containing emergency contraception and pregnancy tests to the state’s most impoverished areas, as well as working more closely with allied networks in Mexico after the Mexican Supreme Court ruled in September that imposing punishment for abortion is unconstitutional. The decision has opened a closer option for some Texans seeking abortions, both surgical and medication-induced, amid the state’s six-week abortion ban.

Four Mexican states currently allow abortions in most circumstances. Those states would become the closest option for many in Texas and across the South if current state-level trigger and other abortion bans go into effect. Even before the passage of SB 8, abortion seekers in South Texas frequently crossed the border to go to Mexican pharmacies to buy the abortion-inducing pill misoprostol.

But travel to Mexico, or even out of state, is not an option for over-worked, poor, marginalized, and especially undocumented people, which is why abortion funds and grassroots support networks are also working to increase access to information, resources, and guidance to assist Texans with self-managed abortions using abortion-inducing pills.

The practice has long been considered safe and preferable for many people, especially those in rural areas who would have to travel hours to see a provider, and undocumented people unable to cross internal immigration checkpoints in border regions. The Food and Drug Administration’s 2016 guidelines allows practitioners to prescribe a combination of misoprostol and mifepristone up to 10 weeks’ gestation.

If Roe is overturned and abortion providers are further criminalized, activists’ role in helping abortion seekers manage their own needs outside the purview of traditional, clinic-based care will become all the more vital. Just as important would be helping women and all abortion seekers understand the potential for their own criminalization — the biggest risk associated with self-managed abortion in the modern era.

Abortion support organizers are already providing legal “know your rights” education and partnering with community bail funds in order to minimize the harms of existing efforts in Texas and elsewhere in the South to criminalize and punish pregnant people seeking abortions — as well as those who aid them. Advocates warn that effort would be dramatically accelerated if Roe is overturned.

Right now, Texas and other states’ trigger laws only penalize providers and clinics, not patients who obtain abortions. Still, pregnant people have faced criminal punishment for pregnancy outcomes including stillbirths and miscarriages in hundreds of cases since Roe’s protections were first put in place in 1973. According to reporting from The New Republic, National Advocates for Pregnant Women identified at least 1,600 such cases in the last 50 years involving arrests or other deprivations of liberty for pregnancy outcomes.

In some cases, police and prosecutors have pursued charges outside the bounds of the law or used creative interpretations to target pregnant people. In fact, this happened in Texas just last month in a case that offers a grim preview of the post-Roe criminal legal landscape in the South.

On April 7, 26-year-old Lizelle Herrera was charged with murder and held in a Starr County jail on a $500,000 bond in connection with what an indictment called a “self-induced abortion” stemming from a report a hospital made to police in January. South Texas reproductive rights groups including the Frontera Fund, South Texans for Reproductive Justice and If/When/How spearheaded the organizing efforts that eventually led to Herrera’s release.

Frontera Fund Co-founder and Board Director Alexis Bay tells Truthout her organization mobilized quickly around Herrera’s case, working in coalition with local reproductive rights organizations in Central and South Texas to create a legal fund for Herrera and reaching out to Central and South Texas district attorneys, who quickly issued statements condemning the arrest and calling for Herrera’s release. The pressure from other elected DAs proved critical in Starr County DA Gocha Ramirez’s decision to drop Herrera’s charges three days after her arrest.

“We should anticipate that those who seek abortion, whether it be in other states or self-induced, will face criminalization,” Bay tells Truthout. “That is the reality we are facing. [Herrera’s case] was just the tip of the iceberg.”

The rest of that iceberg may very well end up including abortion fund organizers themselves. In fact, they’re already having tough conversations about how to retool their mission if Texas passes legislation criminalizing their advocacy work assisting Texans in obtaining abortions, providing resources and information about self-managed medication abortion, or making it illegal for anyone to travel out of state for the purposes of obtaining an abortion.

Some Texas Republicans are already eyeing ways to criminally prosecute abortion seekers and those who would help them — even if it means going around local DAs. In a letter sent to abortion-funding nonprofits last month, State Rep. Briscoe Cain said he intends to introduce legislation that would allow DAs to prosecute abortion-related cases outside their home jurisdiction when the local DA “fails or refuses to do so.”

Herrera’s case, alongside this week’s Supreme Court leak, has thrown the significance of local “prosecutorial discretion” in pregnancy-related cases into sharp relief. Such discretion gives DAs the power to decide which cases to take, what charges to present and how to frame evidence to a grand jury — a power that will once again take precedence if the high court guts Roe’s privacy protections.

The decision could create a patchwork of prosecutorial approaches even just within Texas: At least five DAs have publicly promised to not pursue abortion-related criminal charges if Roe is toppled. Others may simply quietly decline to take such cases without making public pronouncements.

Travis County DA José Garza tells Truthout that if he finds himself on the front lines of an abortion or pregnancy-related test case involving the criminalization of a pregnant person or advocate, he will not use his office’s resources to pursue charges.

“From my perspective, criminalizing personal health care choices, and using resources to pursue criminal charges against people for making personal health care choices would make us less safe,” Garza tells Truthout.

Garza has previously committed to not pursuing charges against families of transgender youth who follow the advice of medical professionals to make personal health care choices amid Texas Republicans’ push to criminalize trans health care, and says he sees abortion and pregnancy-related health care choices in the same vein. But it’s “hard to fathom the depths of the cravenness” of the Texas Republican Party, he says, in terms of anticipating just how state lawmakers may legislate in opposition to the public interest and true public safety.

Garza, however, cited the Texas Constitution in response to State Representative Cain’s planned legislation to allow DAs to pursue charges outside their home jurisdiction, telling Truthout the plan “doesn’t sound it doesn’t sound like it’s in line with what the law clearly is here in the state of Texas.”

Still, anti-abortion DAs in other jurisdictions and states are primed take a hardline approach, especially under political pressure — and the vast criminal code stands ready to assist them. A National Association of Criminal Defense Lawyers report finds more than 4,450 abortion-related federal crimes and tens of thousands of state-level criminal provisions remain on the books. That doesn’t include state conspiracy, attempt and accomplice statutes.

In Texas, a law making it a crime to perform an abortion or “furnish the means for procuring an abortion” except to save the life of a pregnant patient is one such statute still on the books. The statute’s use of the word “procure,” some legal experts say, could extend to people seeking abortions directly.

This law was among those lawyers challenged in the case that would go on to become Roe v. Wade. If Roe is overturned, Texas’s abortion criminalization statutes could again be enforced if the state legislature doesn’t remove them — including some pre-Roe statues dating back to the 1850s that directly criminalize the person getting the procedure, which the legislature never repealed.

In addition to penalties already on the books, new statutes are quickly being drafted: A legislative committee in the Louisiana House of Representatives advanced a bill this week that would expose a person to homicide charges if they receive an abortion.

Overturning Roe, abortion rights activists say, adds a layer of criminalization to people already targeted by the criminal legal system in the United States, generating more fear and anxiety in marginalized, vulnerable and rural communities — a reality they’re already working to prepare those communities for.

Lilith Fund’s Galindo says her organization is preparing to launch a second initiative of what they’re calling their “hype squad” effort encouraging people to share and uplift, which helps Texans find an abortion clinic out of state. The new initiative will help provide organizers and those seeking abortions with criminal legal trainings in order to guard against prosecution.

“Right now, what we really all have to be doing is thinking about how bail funds and abortion funds are going to have to work even closer together,” Galindo tells Truthout. “We’re going to have to really think hard about just who is going to be targeted and just who is going to need all of our support and protection.”

Roe’s reversal would also compound the effects of militarized enforcement and policing on undocumented people living in Texas’s border regions who have long seen their Fourteenth Amendment due process and privacy rights eroded by U.S. Customs and Border Protection surveillance systems that collect biometric data including fingerprints, facial scans and blood samples, as well as slap undocumented people with ankle monitors that track their every movement.

Overturning Roe, advocates in South Texas’s Rio Grande Valley say, would just provide one more reason for police to hand over undocumented folks to immigration enforcement.

“Folks who are undocumented live at this complex intersection where abortion is already criminalized enough in the state of Texas, and their immigration statuses are also criminalized,” says Nancy Cárdenas Peña, who is Texas director of policy and advocacy the National Latina Institute for Reproductive Justice. “So often the conversations that we’re having with folks is ‘Do I go to my health care appointment, or do I risk being placed into deportation proceedings? … Do I risk being separated from my family?’”

Additionally, undocumented people held in immigration detention centers have long been subject to human rights violations including forced sterilization and a lack of reproductive health services that have resulted in miscarriages behind bars.

In fact, South Texas organizers say they are worried about how the gutting of Roe’s privacy protections could impact people held in detention centers in particular. In the 1927 Buck v. Bell case, the Supreme Court found that a Virginia statute that allowed for the sterilization of those held in psychiatric institutions was not unconstitutional. The case has never been overturned, and some legal experts have speculated that a state that can legally force a person to give birth could also compel the opposite.

“It’s always this contradictory statement that we receive from immigration [enforcement] where immigration says they offer the full spectrum of reproductive health care, but we see, time and time again, these consistent violations and the need to campaign for people within detention,” Cárdenas Peña says. “We can talk about the conditions that immigration should be able to provide, but a cage is a cage.”