A few weeks ago, in the aging, sand-colored Starr County Courthouse, 12 average citizens gathered to decide whether there was reason to believe a murder may have been committed.
Grand jury proceedings are one-sided, with only the district attorney鈥檚 office permitted to offer evidence. They鈥檙e also kept secret, so it鈥檚 unknown who from the Starr County district attorney鈥檚 office handled the case and how it was presented to the jurors.
But from that hearing, the grand jury decided there was reason to charge 26-year-old Lizelle Herrera with murder for a 鈥渟elf-induced abortion.鈥 Herrera was arrested on a $500,000 bond and booked into the Starr County Jail even though Texas鈥 murder statute explicitly prohibits bringing murder charges against a pregnant person in the 鈥渄eath of an unborn child.鈥
Three days after the initial arrest, Starr County District Attorney Gocha Ramirez said he would be exercising 鈥減rosecutorial discretion鈥 by .
鈥淚n reviewing applicable Texas law, it is clear that Ms. Herrera cannot and should not be prosecuted for the allegation against her,鈥 he wrote in a press release.
Several lawyers and advocates in Starr County 鈥 a tiny, rural county in the Rio Grande Valley 鈥 told The Texas Tribune that they believe this disastrous misstep from Ramirez鈥檚 office was born out of prosecutorial inexperience, not anti-abortion animus. Ramirez, a Democrat elected in 2020, did not respond to requests for comment.
But the case shines a light on the huge and often unchecked power that local prosecutors wield in deciding which cases to pursue, what charges to push for and what evidence to present to grand juries, a power that will become only more consequential if the U.S. Supreme Court overturns the constitutional protection for abortion this summer.
The role of district attorneys in abortion cases
Nearly 50 years after it was decided, is one of the country鈥檚 best known and most consequential Supreme Court rulings. But originally, it was just a lawsuit brought by a woman 鈥 known as Jane Roe 鈥 against a Texas district attorney, Henry Wade.
Wade was not a virulent abortion opponent; , he never even read the Supreme Court decision that bore his name.
But lawyers representing Roe needed someone to sue if they were going to get the courts to overturn Texas鈥 total ban on abortions.
As elected prosecutor for Dallas County, Wade had the power to bring charges against any county resident who violated the law. To block Texas鈥 abortion law, Roe鈥檚 lawyers would have to start by blocking Wade. So they filed a suit challenging Wade鈥檚 authority to enforce a law they alleged was overly vague and violated the right to personal privacy.
In the end, of course, this case blocked more than just one local district attorney 鈥 the U.S. Supreme Court, in a move that shocked many and stoked 50 years of controversy, ruled that there was a 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 whole country could bring charges against someone merely because they performed or obtained a legal abortion.
But now, the U.S. Supreme Court is reconsidering that decision. If the court overturns Roe v. Wade this summer, as many believe they will, individual district attorneys may once again become responsible for deciding if and when to pursue criminal charges in abortion cases.
Texas has a 鈥渢rigger鈥 law on the books that would automatically make it a felony to 鈥渒nowingly perform, induce or attempt an abortion鈥 except to save the life of the pregnant person.
That law does not allow for the pregnant person to be prosecuted for having an abortion, but it would open up a whole world of legal questions that district attorneys, defense lawyers and medical providers would have to navigate.
鈥淚n that first, let鈥檚 say, five years of prosecution, how many mistakes get made along the way while the law is being developed?鈥 asked Missy Owen, a North Carolina-based attorney and board member of the National Association of Criminal Defense Lawyers. 鈥淎nd whose lives have to pay for it?鈥
Prosecutorial discretion
Many abortion rights advocates talk about the 鈥渢wo Americas鈥 that would be created if the Supreme Court allows states to create their own abortion restrictions. About half of all states likely would ban abortion to some degree, .
But even within Texas, there may be two distinct realities. Five Texas district attorneys 鈥 from Dallas, Travis, Bexar, Nueces and Fort Bend counties 鈥 have publicly promised that they will not pursue abortion-related criminal charges if Roe v. Wade is overturned. Others are expected to quietly decline to take these cases.
Travis County District Attorney Jos茅 Garza said he does not believe his office should be involved in criminalizing personal medical decisions between a pregnant person and their doctor.
鈥淲e are very focused on holding accountable people who commit acts of violence in our community,鈥 he said. 鈥淧ulling resources away from that to focus on this kind of case would be reckless and endanger the safety of our community.鈥
In other jurisdictions, though, district attorneys may take an opposite approach, either due to personal anti-abortion leanings or political pressure.
Owen, who authored on abortion-related criminalization, said there鈥檚 a useful foreshadowing in how voter fraud cases have played out in recent years.
鈥淭hese cases don鈥檛 get prosecuted evenly across the state,鈥 she said. 鈥淭hey get prosecuted selectively, often in counties where there鈥檚 a district attorney鈥檚 race going on. 鈥 It鈥檚 really up to the discretion of the particular district attorney.鈥
Prosecutorial discretion gives district attorneys a lot of power in their own jurisdiction 鈥 power to take cases or not, to decide what charges to present and to choose how to frame evidence to the grand jury.
There鈥檚 not much oversight of how prosecutors wield that discretion, said Charles 鈥淩ocky鈥 Rhodes, a professor at South Texas College of Law Houston.
鈥淓xcept that there鈥檚 always political checks on them for failing to prosecute crimes that their citizens want prosecuted,鈥 he said. 鈥淭hat鈥檚 how you get defeated next time you run for district attorney.鈥
But state Rep. , R-Deer Park, is planning to introduce legislation that could radically change that balance of power.
In a letter sent to abortion-funding nonprofits last month, Cain said he intends to introduce legislation that would allow district attorneys to prosecute abortion-related cases outside their home jurisdiction 鈥渨hen the local district attorney fails or refuses to do so.鈥
Garza, the Travis County district attorney, said Cain鈥檚 statements don鈥檛 change his thinking on these cases.
鈥淎ll I can say is that the courts and the state constitution have been very clear that elected district attorneys have sole criminal jurisdictions in their community,鈥 he said.
The next frontiers
But Cain鈥檚 proposition does point to a looming question: If Roe v. Wade is overturned and the trigger law goes into effect, what鈥檚 next?
If the trigger law goes into effect, Rhodes said it鈥檚 likely that abortion clinics will comply with the law, since Texas passed a ban on abortions after about six weeks of pregnancy. The attention, he said, will then shift to the myriad other ways people access abortion care when clinics aren鈥檛 an option.
鈥淭here are going to be some very difficult constitutional issues that we can already see,鈥 Rhodes said. 鈥淪tates may try to criminalize advocacy and [financial] assistance [for abortions] or may try to keep women from having an abortion in another state.鈥
District attorneys likely would end up on the front lines of test cases, legal challenges and new legislative efforts to rein in what鈥檚 left of abortion access in Texas.
And even though the trigger law prohibits prosecution of the person who got the abortion, many advocates worry most about the pregnant Texans who will get caught in these legal battles 鈥 perhaps without adequate defense.
鈥淢ost criminal defense lawyers don鈥檛 have any idea about fetal maternal medicine,鈥 said Owen. 鈥淭his is a dangerous situation that will be an added stress to public defenders鈥 offices, to defense bars and to prosecutors.鈥
While the details of the Herrera case remain murky, Owen said it鈥檚 a harbinger of what may play out over the coming months and years as the legal system navigates a brand-new set of rules.
鈥淲e see the damage that occurs, right at the moment of charging. While the law and the lawyers are figuring it all out, people鈥檚 lives will be marred forever,鈥 she said. 鈥淲e鈥檝e seen what happens. You and I both know Lizelle Herrera鈥檚 name.鈥