Legal landscape is evolving, as are the risks
Groups can help navigate the post-Roe world.
“The next link ... is helping providers understand that those types of disclosures to law enforcement aren’t required.”
Farah Diaz-Tello
In the wake of the chaos sure to follow Friday’s explosive U.S. Supreme Court decision overturning Roe v. Wade, Texans are going to need good information, legal help and creative — and courageous — prosecutors willing to use their discretion to avoid making pregnant women and their health care providers targets of criminal charges.
With the court’s disastrous opinion eliminating the federal right to an abortion, Texas and other states are free to outlaw it.
Texas’ trigger law is already on the books, and when it takes effect roughly 30 days from now it will ban nearly all abortions, except when the mother is at risk of death or serious harm. Any doctors or others convicted of “knowingly performing, inducing or attempting an abortion” could face up to life in prison.
What other legal risks exist in a post-Roe world aren’t yet entirely clear, though legal aid groups are scrambling to help provide support and answers to pregnant women in Texas.
What happens when a Texan orders abortion pills from another state? Or when a woman travels to another state for an abortion?
Will women be targeted?
Perhaps most pressingly, there remains a question of whether women themselves will face jail time over a decision to end their pregnancy. The trigger law appears to reserve prosecution for those who perform the abortions, and not women who have them. But what about when a woman chooses to manage her own abortion?
Even before Roe was struck down, in April, a young woman in Starr County found herself in jail following an alleged self-managed abortion. The prosecutor would later determine having an abortion was not a crime, and dropped the charges, but the arrest sent an unmistakable message: Once abortion is considered a crime in Texas, more women could face such charges, despite the seemingly clear intent of the trigger law to target doctors, not women.
That shouldn’t happen, Farah DiazTello, senior counsel with the national organization If/When/How: Lawyering for Reproductive Justice, told the editorial board after the Dobbs v. Jackson draft opinion was leaked.
“It is not unlawful for a person to end their own pregnancies,” Diaz-Tello said. “Prohibiting abortions doesn’t necessarily provide legal authority to charge people with a crime or civil offense for having an abortion.”
But it sometimes does — and after states make abortion itself illegal, it could happen more often.
That’s why it was so heartening to hear some prosecutors speak out after the Dobbs decision.
Harris County District Attorney Kim Ogg immediately stressed the sanctity of the relationship between women and their doctors.
“The criminalization of reproductive health will cause great harm to women in America; prosecutors and police have no role in matters between doctors and patients. As in every case, we will evaluate the facts and make decisions on a case-by-case basis.”
But across Texas, many women live in counties where prosecutors may see things very differently. That’s something that should worry all of us — particularly as some legislators gear up to empower district attorneys to act beyond their jurisdictions.
“Nothing is beyond the prosecutorial imagination,” Diaz-Tello told us, “but it is our duty to hold them accountable to the law.”
What’s needed: guidance
Everyone from pregnant women, lawyers, health care workers and others will need guidance moving forward.
Three key considerations are worth noting here.
Women who self-manage their abortion with medication and later need medical care need to know they don’t need to disclose that. And health care providers caring for women who have used such medication should know that they don’t have to report them. And finally, lawyers and individuals need to know that if pregnant women are charged, those cases are well worth fighting.
Advocates have helped highlight the benefits of self-managed medication abortions, which represent an increasing share of abortions overall.
They, too, will be banned by Texas’ trigger law, but whether women who perform them for themselves will be charged remains unclear. But just as importantly, they are not an option for everyone as barriers to accessing needed medications remain high for many.
Also true is that while self-managed medication abortions are usually safe, some people will still end up in the hospital, either because the pain is more intense than expected or because of other complications.
Those people, said Diaz-Tello, need to know that there is no way for health care providers to know whether an abortion was medically induced or experienced as a spontaneous miscarriage and that it’s not relevant to their care.
And when that information is shared with health care providers, it should remain private.
“The next link in the chain,” said Diaz-Tello, “is helping providers understand that those types of disclosures to law enforcement aren’t required.”
Finally, a word for lawyers and prosecutors.
We agree with Diaz-Tello that prosecuting the pregnant person “would be an egregious, unlawful misreading of the plain text of the law.”
Building on years of her organization’s work with public defenders, criminal defense bars and others to help train attorneys to challenge questionable charges, she wants to make sure “they can know that these are cases worth fighting.”
This is especially critical for clients who are already more at risk of being criminalized, including Black, Hispanic and low-income people.
“It’s almost perverse that the risk profile of being criminalized is almost the same risk profile for experiencing adverse pregnancy outcomes and it’s also the same risk profile for people who don’t have access” to care, said Diaz-Tello.
The need for good information
What’s clear already is that the fear prompted by Friday’s ruling is exacting its own penalty.
That’s why services such as a legal hotline are so critical right now and into the future. Given the stakes of the risks, we hope local officials will make clear that criminalizing abortion is not a priority, that medical associations and legal organizations will reach out to their members, and that organizations offering critical resources to people facing decisions about abortion care will be well supported.
Here in Texas, we have a wealth of such organizations dedicated to reproductive care that are prepared to help individuals, lawyers and health care providers alike navigate that changing post-Roe world. They provide trainings, hotlines, legal defense funds, and more.
It will take all of this and more to help soften the blow of a truly devastating decision.