Over the weekend, Lizelle Herrera, a 26-year-old woman in Texas, was arrested and jailed, charged on suspicion of murder for allegedly self-inducing an abortion. The charges against Herrera were ultimately dropped on Sunday, but the damage had already been done: Yet another person was criminalized and incarcerated for the outcome of their pregnancy in the United States.
Herrera’s story quickly gained national attention and outrage, and the leadership of Black and brown activists in Texas ultimately won her freedom. But tragically, her story isn’t an anomaly: Nearly 1,300 people faced criminalization for pregnancy outcomes, including self-managed abortions, between 2006 and 2020. This number has tripled compared with the period between 1973 and 2005, according to National Advocates for Pregnant Women (NAPW). Laws like Texas’ near-total abortion ban, which incentivizes citizens to spy and sue each other, and escalating threats to Roe v. Wade that include a forthcoming case this summer have further shrouded abortion and pregnancy loss in stigma and criminal suspicion—especially as more and more people are ending pregnancies with medication abortion pills, which can’t be medically distinguished from miscarriage.
No one is ever to blame for losing a pregnancy, which is often traumatic enough in its own right, and no one is to blame, either, for facing criminal charges for this experience. But legal experts and reproductive justice advocates say there are crucial steps we can take to minimize our risk of criminalization and arrest at this increasingly dangerous time for pregnant people in the US.
“The primary risk people face when they’re self-managing an abortion is no longer medical, as was the case prior to Roe, but the risk of criminalization,” Farah Diaz-Tello, senior counsel and legal director of the reproductive justice legal advocacy group If/When/How, told Jezebel. If/When/How also runs the Repro Legal Defense Fund, which offers legal and financial support to people like Herrera. “The more people understand their rights, or how to keep their information private, the more protected people can be from criminalization.”
As Jezebel has previously reported, a pregnant person can be criminalized for eating poppyseeds and testing positive for substance use. Compounding the trauma of losing a pregnancy, someone who may have consumed alcohol and drugs can be charged with feticide, homicide, or child abuse, and arrested and incarcerated. The list of reasons some have faced arrest is virtually endless: surviving violence that results in miscarriage, experiencing stillbirth and “improperly” disposing of fetal remains, or even a home birth with complications.
That Herrera is a Latina woman can’t be ignored. People of color, who are more likely to be harmed by the criminal legal system, have disproportionately been the targets of pregnancy criminalization. It’s notable that like Purvi Patel, who was convicted of feticide in 2015 for allegedly self-inducing an abortion, Herrera was reported to the police by hospital staff. The medical system frequently colludes with law enforcement to police pregnant people; consider the prevalence of nonconsensual drug testing of pregnant patients, which has discouraged those with substance use struggles from seeking vital prenatal care. It’s why some advocates say reproductive justice requires abolition and decarceration.
The gutting of Roe, rapid spread of state abortion bans, and deterioration of our most basic privacy rights have created a perfect storm for pregnant people to be surveilled, criminalized, and incarcerated. Jezebel talked to If/When/How on how we can protect ourselves from criminalization for pregnancy loss and abortion.
Your text messages and online searches can and will be used against you.
In 2018, Lattice Fisher, a Black mother of three in Mississippi, was incarcerated shortly after she experienced a stillbirth, because prosecutors used her online searches for abortion pills as evidence of her “motive.” In Indiana, Patel was jailed and charged with feticide in 2015 for allegedly inducing an abortion, and her online purchase of abortion pills as well as her text messages with a friend were used as evidence against her.
The internet is an indispensable tool to get accurate information about pregnancy and abortion, Diaz-Tello says. To minimize your digital footprint when it comes to accessing these resources, conduct research using a computer at a public place like the library, or using a virtual private network (VPN). To text and communicate about situations involving pregnancy loss and self-managed abortion, use encrypted messaging platforms like Signal or Protonmail.
“Unfortunately, for a lot of people who come to the attention of law enforcement by being reported by health care providers, it’s possible they actually didn’t need medical attention in the first place,” Diaz-Tello said. Instead, she notes some of patients experiencing miscarriage or self-managed abortion who have been arrested “just weren’t sure if [the medication abortion] was working, or became alarmed by bleeding.”
This is why it’s crucial to know which hotlines and groups of health experts are safe to contact. The M+A Hotline, or Miscarriage+Abortion Hotline, confidentially answers all of your questions on self-managed abortion and pregnancy loss and is staffed by “pro-abortion clinicians with years of experience in caring for miscarriage and abortion.” You can call or text the hotline at 1-833-246-2632. But in order to ensure your cell phone service provider can’t access your texts and calls, you can use the Google Voice app or platforms like Cellcrypt. In the event that you do face charges or investigation for a pregnancy outcome, you can seek direct support from NAPW or If/When/How’s Repro Legal Defense Fund.
Medication abortion pills are highly safe and effective during the first 10 weeks of pregnancy—but it’s crucial to follow all instructions when using them, in order to avoid complications that could possibly require an emergency room visit, and consequent exposure to law enforcement.
Abortion care workers have noted the particular importance of taking the pills orally rather than inserting them in the vagina, as they can leave residue in the vagina that can appear during a pelvic exam or other medical exams. In contrast, no medical exam can show residue from taking the pills orally.
Again, because abortion pills end a pregnancy by inducing a miscarriage, self-managed abortion with pills can’t be medically distinguished from miscarriage. As abortion bans spread and with Roe on the line, Diaz-Tello says it’s important to know you don’t have to disclose that you induced an abortion to health care providers. However, people are still routinely criminalized for the full range of pregnancy outcomes, and not just self-managed abortion.
Cynthia Conti-Cook, technology fellow at the Ford Foundation who focuses on gender, racial and ethnic justice, and author of “Surveilling the Digital Abortion Diary,” told Jezebel that it’s critical for women and pregnant people to know their rights when it comes to talking or sharing evidence with law enforcement. Police obtain much of their evidence against someone who’s lost a pregnancy or induced an abortion through individuals “voluntarily handing their phones in,” Conti-Cook says, because they don’t know they have the option to say no.
When it comes to pregnancy criminalization, cops often rely on individuals not knowing their rights to not self-incriminate or seek legal representation. According to Diaz-Tello, when police interrogate a patient at their bedside, which is “very frequently what’s happening,” they often fail to tell people their rights or even disclose that what’s happening is an interrogation. “Pregnancy criminalization and policing exposes the total lack of fit between the health care system and criminal prosecution system,” Diaz-Tello said. “People should be able to freely provide as much information as possible to their health care providers, so their providers can give them the best care.” The collusion of these two systems, she says, instead puts patients at risk.
Today, the timing of surging abortion restrictions and cases like Herrera’s isn’t a coincidence: Both are rooted in state policing of pregnancies, forcing people to give birth, and punishing those who can’t or don’t comply.
The consequences of being criminalized and jailed for a pregnancy outcome ultimately continue even after charges are dropped. “That person is separated from their community, they’re traumatized, their mugshots are distributed online, creating a sort of indelible public record of this really dehumanizing experience, and they might be too afraid to even seek health care again,” Diaz-Tello said. “It’s not just the immediate effects someone faces—the effects are much longer term, and devastating.”