According to advocates, it was clear from the beginning that Herrera’s case was full of holes. “The indictment is very skimpy on the details, which is a red flag for whatever due process was executed leading up to her arrest and charges,” Zamora said.
While Starr County District Attorney Gocha Ramirez ultimately dropped Herrera’s charges, the press release announcing the dismissal of the indictment mentioned that Herrera was investigated because of an incident reported by a hospital to the Starr County Sheriff’s Department. It’s unclear where the incident took place; however, there is only one hospital in Starr County located in Rio Grande City. Rockie Gonzalez, the founder of Frontera Fund, said during a press conference that advocates have a fine line to walk between stigmatizing and demonizing any health care worker who potentially made a report and protecting them from the pressures of the law that may have made them feel obligated to report.
“We don’t know who these people are. We don’t know under what duress or personal judgment value they operated, but it’s one of the reasons why we need to make sure that at the county and the municipal level it’s made very clear to health care workers what the lines of a potential [Health Insurance Portability and Accountability Act] violation look like and make sure that they are not under duress to do that kind of reporting,” Gonzalez said.
Farah Diaz-Tello, senior counsel and legal director of If/When/How: Lawyering for Reproductive Justice, told Prism that based on news coverage, what the district attorney has said, and statements from the sheriff’s department, it seems clear there was some kind of report from the health care provider to law enforcement. If/When/How’s Repro Legal Defense Fund paid Herrera’s bond on April 9, and on April 11, Ramirez filed a petition to drop the charges. But much remains unclear about how and why Herrera was criminalized.
“Little information is publicly available about the incident itself, or how or why confidentiality was broken, but we know enough to say that whatever she told the health care provider led them to turn her over to law enforcement,” Diaz-Tello said.
Based on the law, however, there was actually no reason for a health care provider to report Herrera. Despite widespread belief to the contrary, self-managed abortion is not illegal in Texas, nor in the vast majority of other states.
‘What happened wasn’t a crime’
When news of Herrera’s arrest began to make the rounds on social media April 8, many members of the public were outraged that a health care provider may have reported a woman to law enforcement in what they presumed to be a violation of the Health Insurance Portability and Accountability Act (HIPAA). Diaz-Tello told Prism HIPAA provides exceptions for the reporting of crimes, not something a provider thinks is a crime—because Herrera didn’t commit a crime.
“Something important for folks to understand is that in many cases, health care providers are under an incorrect impression that they’re mandated to report when somebody has self-managed an abortion,” Diaz-Tello said. “That’s just not the case. They’re not required to report that to law enforcement. This whole thing could have been avoided had a report not been made. In fact, it would have been more in line with a provider’s ethical and legal obligations to protect patient privacy for the facility not to make a report.”
Oklahoma, South Carolina, and Nevada are the only states to have explicit criminal laws against self-managed abortion. However, even if self-managed abortion isn’t a crime in the vast majority of states, there are laws that can be weaponized against people who self-induce.
According to If/When/How, no state requires doctors or health care providers to report someone who self-managed an abortion to the police, and people have no legal obligation to tell a doctor or hospital staff if they’ve self-managed. According to doctors, there is also no drug test that detects the medications commonly used for abortion in the U.S., and a miscarriage prompted by use of abortion pills is indistinguishable from one that occurs spontaneously.
That means that the Starr County district attorney’s decision to drop Herrera’s charges actually wasn’t an example of prosecutorial discretion, as many have suggested; it was a matter of following the law.
“What happened wasn’t a crime, whether it was a pregnancy loss or a self-induced abortion,” Diaz-Tello said. “We applaud the DAs who have taken a public stand against prosecuting people for abortions or for the outcome of their pregnancies. That’s an important step, but we need them to do more than follow the law, which they are already obligated to do. We need them to actively work to end and remedy the many situations where their colleagues reach beyond the law to punish people.”
An ‘aura of illegality’ around self-managed abortion
Organizations have spent years providing education on self-managed abortion with pills and the ways that this option comes with increased risk of criminalization. If/When/How also provides crucial legal scaffolding to help people better understand their rights and the potential risks associated with self-managed abortion. The organization has a confidential legal helpline that provides free legal information, and their Repro Legal Defense Fund covers bail and funds defenses for people like Herrera who are investigated, arrested, or prosecuted for alleged self-managed abortion.
But in states like Texas that have been pummeled with anti-abortion laws over the years, there is confusion about what the laws require—even among health care providers.
SB 8, passed last year, prohibits abortion as early as six weeks and puts enforcement in the hands of civilians who can obtain rewards of at least $10,000 for successfully bringing lawsuits against anyone who “aids or abets” abortion care. SB 4, also recently passed, makes it a criminal violation to provide abortion pills after 49 days of pregnancy. Under both laws, pregnant people who get abortions are exempted from criminal repercussions.
While the specifics of Herrera’s case may not fit the confines of SB 4 and SB 8, Diaz-Tello told Prism that Herrera’s indictment wasn’t a legal consequence of these laws, but her criminalization was likely a direct result of their existence.
“People’s immediate assumption was that this was because of SB 8 and SB 4, but the truth is a little bit more complicated,” Diaz-Tello explained. “Those laws don’t impose penalties on the pregnant person for anything they do or don’t do during pregnancy, so even if somebody obtains an abortion that is in violation of SB 8 or SB 4, they are essentially insulated from being the subject of the legal proceeding.”
The issue with laws like SB 4 and SB 8 is that they also create what If/When/How’s senior legal and policy director, Sara Ainsworth, calls an “aura of illegality.”
“It’s this idea that there’s something wrong or bad or potentially suspicious and a matter for the legal system when somebody either has an abortion or presents with something that is potentially an abortion. That is going to lead to people being criminalized and the reason for that is that criminalization is only a little bit about what the law says and much more about how the law classifies and categorizes people,” Diaz-Tell said.
Dr. Ghazaleh Moayedi, an OB-GYN and abortion provider in Texas, said that while it’s true that some health care providers are guided by personal or religious beliefs when they report people who disclose they’ve self-managed, often it’s a misunderstanding of what the law is and what the provider’s role is.
“It doesn’t actually matter what the law says or doesn’t say; it’s the climate that politics and anti-abortion laws create,” Moayedi said. “What I’ve seen happen in other instances is that a health care provider thought it was a mandatory reporter scenario, and this misunderstanding coincided with law enforcement also not understanding the law.”
Even providers who are experts in pregnancy care in Texas can have a misunderstanding of abortion laws, Moayedi explained. There isn’t a book providers are given that outlines abortion laws and how to comply with them. Complicating matters further are “decades and decades” of different health and safety codes enacted by different government agencies that have been subject to lawsuits, proceedings, and other changes over the years.
“Unless the law is something you really pay attention to because you’re an abortion provider or an activist in the community, it can be really difficult to know what’s true and what’s hearsay or someone’s interpretation of the law. On top of that, it is very common for clinics, hospitals, and other medical establishments to add abortion restrictions on top of abortion laws. That’s the other thing that can become confusing for medical providers: Their institutions may have policies or practices that aren’t related to the law in the state,” Moayedi said.
What does this look like in practice? Moayedi said that hospitals across Texas are creating policies in response to SB 8 because they are afraid of becoming entangled in abortion laws and abortion-related lawsuits. For example, hospitals are applying SB 8 to spontaneous abortion or miscarriage, meaning some providers aren’t initiating treatment for people who show up to their facilities with their membranes ruptured at 17 weeks.
“That’s a miscarriage, a spontaneous abortion; that’s not an induced abortion. To manage that scenario, you induce labor to prevent the person from hemorrhage, sepsis, and death. So while SB 8 doesn’t have anything to do with miscarriage, we’re seeing it applied to miscarriage because for clinics and hospitals, it’s turned into an issue of risk mitigation. It’s about not getting sued; it’s not about applying laws correctly,” Moayedi explained.
‘We are not here to help law enforcement build cases’
Evidence suggests that when states enact highly restrictive abortion laws, more people choose to self-manage. This also means more people may be criminalized. One of the more troubling aspects of this phenomenon is that people are generally socialized to be open and forthcoming with their health care providers, which doesn’t serve their best interests in the criminal justice system.
“On the one hand, people seeking health care are told to be honest and disclose as much information as possible so their provider can give them the care that they need. That’s exactly in opposition to the rights that people have when they are accused of a crime or investigated for a crime. All of our Fourth, Fifth, and Sixth Amendment protections that are crucial for protecting ourselves from unjust criminalization are in opposition to how we’ve been taught to behave in a health care setting,” Diaz-Tello said.
Moayedi told Prism this is a dynamic she “really struggles with.” While everyone deserves to be able to be fully transparent with their health care providers so that they can get individualized health care, as a person of color and a physician, she also understands that members of many communities can’t confide in a health care professional and trust the response that they’re going to get.
“The reality for many communities—communities of color, immigrant communities, queer communities, disabled communities—is that having to protect yourself from the health care industry is, to some extent, a part of life,” Moayedi said. “I came into medicine to really dismantle these very structures, but I recognize that I’m a part of them too. I am very forthright with patients and let them know that I am their physician; that I’m there to take care of them; and that I don’t care what they tell me. If they seem concerned, I let them know directly the only things I’m mandated to report are child abuse and elder abuse. It shouldn’t have to be on patients to vet who is and isn’t safe, but those are some ways I can flag to patients that they can trust me.”
Some of the most trusted professional associations for physicians have taken a public stand on self-managed abortion, asserting that providers should protect patient autonomy, confidentiality, and the integrity of the patient-physician relationship. The American College of Obstetricians and Gynecologists (ACOG) released a position statement in 2017 opposing the prosecution of pregnant people for conduct alleged to have harmed their fetus, including the criminalization of self-induced abortion. ACOG said the threat of prosecution may result in negative health outcomes by deterring people from seeking needed care, including care related to complications after abortion.
“ACOG also opposes administrative policies that interfere with the legal and ethical requirement to protect private medical information by mandating obstetrician-gynecologists and other clinicians to report to law enforcement [those] they suspect have attempted self-induced abortion,” the statement said.
There are ways that physicians can push back against practices that can lead to criminalization. Moayedi said that a truly clarifying moment happened when she was a fellow working at a hospital and caring for someone who had just given birth and disclosed they had a history of drug use. Another physician caring for the woman’s newborn told Moayedi that she needed to order a drug test.
“There was no reason to order a drug test for this person’s medical care; she already told us that she did certain drugs and that they were going to be in her system,” Moayedi said. “When I asked why we needed to order a drug test, I was told, ‘We have to build a case.’ That was a very important moment. The notion that I needed to order a drug test to build a case against someone really went against why I became a physician.”
Moayedi said that it’s in these seemingly small moments that providers can take a stand.
“I really think it’s our duty as physicians to speak about these moments when they happen and to be transparent about them with residents and medical students to help them understand what criminalization can look like, and that we are not here to help law enforcement build cases against people,” Moayedi said.
Nancy Cárdenas Peña, the Texas director for policy and advocacy at National Latina Institute for Reproductive Justice, said it’s “an unfortunate reality” that providers can act as agents of the state—whether they realize it or not. The Latina Institute is one of a small group of reproductive justice organizations that quickly organized on Herrera’s behalf.
Cárdenas Peña told Prism she’s been thinking a lot about the health care facility that may have reported Herrera and why whoever did the reporting felt empowered to do that. What about this hospital environment made them feel safe criminalizing a person who came in for a complication or whatever the case may have been?
“It isn’t always an act of aggression when reporting people for abortion; I also think it’s a symptom of the legislature that creates confusion,” Cárdenas Peña said. “We have providers who shouldn’t operate in these gray areas about what to report and what not to report. I’m pretty sure this isn’t the last we hear about what happened in [Herrera’s] case. There seems to be a lot of momentum to figure out why this happened, who was responsible, and what happens next.”
Herrera’s case also shined a light on the localized impact of restrictive abortion access in Texas’ Rio Grande Valley, where organizers and advocates told Prism about the critical importance of cross-movement collaboration between criminal justice and reproductive justice organizers. Read more about cross-movement collaboration here.
Tina Vásquez is a contributing writer at Prism. She covers gender justice, workers' rights, and immigration. Follow her on Twitter @TheTinaVasquez.
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