If Roe v. Wade is canceled, Texas prosecutor’s offices would become a new battleground

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A few weeks ago, in the old, sand-colored Starr County Courthouse, 12 average citizens gathered to decide if there was reason to believe a murder might have been committed.

Grand jury proceedings are unilateral, with only the district attorney’s office allowed to present evidence. They’re also being kept secret, so it’s unclear who in the Starr County District Attorney’s office handled the case and how it came to jurors.

But from that hearing, the grand jury decided there were grounds to charge 26-year-old Lizelle Herrera with murder for a “voluntary abortion.” Herrera was arrested on $500,000 bail and jailed in Starr County Jail, even though Texas murder law explicitly prohibits bringing murder charges against a pregnant person in the “death of a unborn child”.

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Three days after the initial arrest, Starr County District Attorney Gocha Ramirez said he would exercise “prosecutory discretion” in waiver of charges.

“In reviewing applicable Texas law, it is clear that Ms. Herrera cannot and should not be prosecuted for the allegations against her,” he wrote in a press release.

Several attorneys and attorneys in Starr County — a small, rural county in the Rio Grande Valley — told the Texas Tribune that they believe this disastrous misstep by Ramirez’s office was born out of prosecutorial inexperience, and not out of anti-abortion animosity. Ramirez, a Democrat elected in 2020, did not respond to requests for comment.

But the case highlights the enormous and often unchecked power that local prosecutors wield in deciding what cases to prosecute, what charges to bring and what evidence to present to grand juries, a power that will only become greater if the Supreme Court US Court strikes down constitutional abortion protections this summer.

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The Role of District Attorneys in Abortion Cases

Almost 50 years after its decision, Roe vs. Wade is one of the most well-known and important Supreme Court decisions in the country. But originally it was just a lawsuit brought by a woman – known as Jane Roe – against a Texas prosecutor, Henry Wade.

Wade was not a vocal opponent of abortion; according to the Washington Posthe never even read the Supreme Court decision that bore his name.

But the lawyers representing Roe needed someone to sue if they wanted the courts to overturn Texas’ total abortion ban.

As an elected Dallas County prosecutor, Wade had the power to prosecute any county resident who violated the law. To block Texas abortion law, Roe’s lawyers would have to start by blocking Wade. So they sued to challenge Wade’s authority to enforce a law they said was too vague and violated privacy rights.

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Ultimately, of course, this case stymied more than one local district attorney – the U.S. Supreme Court, in a decision that shocked many and stoked 50 years of controversy, ruled that he There was constitutional protection for abortion up to the point of fetal viability outside the womb, generally considered to begin at 24 weeks gestational age. No district attorney in any jurisdiction in the entire country can press charges against someone simply because they performed or obtained a legal abortion.

But now the US Supreme Court is reconsidering that decision. If the court strikes down Roe v. Wade this summer, as many believe, district attorneys could once again be tasked with deciding whether and when to pursue criminal charges in abortion cases.

Texas has a “trigger” law on the books that would automatically make it a crime to “knowingly perform, induce, or attempt an abortion” except to save the life of the pregnant person.

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This law does not allow the pregnant person to be prosecuted for having an abortion, but it would open up a whole world of legal issues that district attorneys, defense attorneys and health care providers would have to grapple with.

“In this first, say, five years of prosecution, how many mistakes have been made along the way while the law is being drafted?” asked Missy Owen, a North Carolina-based attorney and board member of the National Association of Criminal Defense Lawyers. “And to whom must life pay?”

Prosecutorial discretion

Many abortion rights advocates speak of the “two Americas” that would be created if the Supreme Court allowed states to create their own restrictions on abortion. About half of all states would probably ban abortion to some degree, according to the Guttmacher Institute.

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But even in Texas, there can be two distinct realities. Five Texas district attorneys — from Dallas, Travis, Bexar, Nueces and Fort Bend counties — have publicly promised they won’t pursue abortion-related criminal charges if Roe v. Wade was canceled. Others are expected to quietly decline to take these cases.

Travis County District Attorney Jose Garza said he doesn’t think his office should get involved in criminalizing personal medical decisions between a pregnant person and their doctor.

“We are very focused on holding accountable people who commit acts of violence in our community, he said. “Taking resources away from this to focus on these kinds of cases would be unwise and put the safety of our community at risk.”

In other jurisdictions, however, district attorneys may take the opposite approach, either because of personal leanings against abortion or political pressure.

Owen, author a report on abortion-related criminalization, said there was a useful foreshadowing of how election fraud cases have unfolded in recent years.

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“These cases are not being prosecuted evenly across the state,” she said. “They are being prosecuted selectively, often in counties where a district attorney race is going on. … It’s really at the discretion of the particular district attorney.

Prosecutorial discretion gives district attorneys a lot of power in their own jurisdiction — the power to take cases or not, decide which charges to present, and choose how to present evidence to the grand jury.

There’s not much control over how prosecutors exercise that discretion, said Charles “Rocky” Rhodes, a professor at South Texas College of Law Houston.

“Except there are still political checks on them for not prosecuting the crimes their citizens want to prosecute,” he said. “That’s how you’ll be defeated the next time you run for district attorney.”

But the state representative. Briscoe CainR-Deer Park, plans to introduce legislation that could dramatically change this balance of power.

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In a letter sent to nonprofits that fund abortion last month, Cain said he intended to introduce legislation that would allow district attorneys to prosecute abortion-related cases in outside their home jurisdiction “when the local district attorney fails or refuses to do so.”

Garza, the Travis County prosecutor, said Cain’s statements didn’t change his thinking on these cases.

“All I can say is that the courts and the state constitution have been very clear that elected district attorneys have exclusive criminal jurisdiction in their community,” he said. .

The next frontiers

But Cain’s proposal points to a looming question: whether Roe v. Wade is canceled and the trigger law goes into effect, what’s next?

If the trigger law goes into effect, Rhodes said it’s likely abortion clinics will comply with the law, as they have since Texas banned abortion after about six weeks of pregnancy. Attention, he said, will then shift to the myriad other ways people access abortion care when clinics are not an option.

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“There are going to be some very difficult constitutional issues that we can already see,” Rhodes said. “States can try to criminalize advocacy and [financial] assistance [for abortions] or may try to prevent women from having abortions in another state.

District attorneys would likely find themselves on the front lines of test cases, legal challenges and new legislative efforts to curb what remains of abortion access in Texas.

And even though the Trigger Law prohibits suing the person who had the abortion, many advocates mostly worry about pregnant Texans who will be caught up in these legal battles — perhaps without adequate defense.

“Most criminal defense attorneys have no idea about maternal-fetal medicine,” Owen said. “This is a dangerous situation that will put additional stress on public defenders’ offices, defense bar associations and prosecutors.”

While the details of the Herrera case remain unclear, Owen said it was a harbinger of what could unfold in the months and years to come as the legal system navigates a whole new set. rules.

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“We see the damage that happens, right at the time of charging. While the law and the lawyers solve everything, people’s lives will be ruined forever,” she said. “We have seen what is happening. You and I know the name Lizelle Herrera.

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