Texas Abortion Funds Work to Reduce Looming Harms of Post-“Roe” Criminalization

Texas’ abortion support networks, including non-profit organizations that provide funding for abortions to low-income or marginalized people in Texas, already know what it would be like to live in a postnatal world.Roe v. Wade reality.

Before the state legislature passed Senate Bill 8, a six-week-long abortion ban, Gov. Greg Abbott issued an executive order at the onset of the pandemic in March 2020 temporarily banning any abortion not necessary to save the life of the pregnant person as a “medically unnecessary” procedure. The order was in effect for about a month, although it was contested in the courts. During that time, Texas reproductive rights advocates learned a lot about how to operate in a state where almost all abortions were prohibited.

Activists are now returning to this knowledge after a draft Supreme Court decision overturning it Roe Casey vs. Planned Parenthood was leaked Monday, bracing once again to live that reality if the high court’s final ruling triggers a state statute automatically making it a felony to “knowingly perform, induce or attempt an abortion” except to save the life of the pregnant person.

Texas-based staffers for non-profit abortion funds and grassroots support organizers for abortion tell Truthout they’re ramping up efforts to support people in traveling out of state for their abortion needs. They have already had to escalate travel support to farther-away states after Oklahoma’s legislature passed a near-total abortion ban modeled on SB 8’s civil lawsuit enforcement mechanism last month.

If all 24 states with “trigger” abortion bans go into effect in the event of Roe’s reversal, Texas organizers say they would have to regularly send abortion-seekers as far out as California, where Gov. Gavin Newsom’s promises of expanded access will prove crucial to accommodating an influx of abortion seekers from newly restricted states. That would prove challenging even with their current experience and training under Texas’s harsh abortion restrictions, they say.

“It’s going to be more scarce for people to be able to get to clinics, the wait times will be longer, when people get to clinics, they’re going to be more pregnant, meaning that their procedures will be more complicated and more expensive,” says Erika Galindo, who is organizing program manager at the Texas-based Lilith Fund for Reproductive Equity, which provides abortion funding to low-income and marginalized Texans.

Galindo and other abortion rights organizers say they are also working to distribute free reproductive health kits containing emergency contraception and pregnancy tests to the state’s most impoverished areas, as well as working more closely with allied networks in Mexico after the Mexican Supreme Court ruledSeptember saw the Supreme Court declare that punishing abortion was unconstitutional. The decision has opened a closer option for some Texans seeking abortions, both surgical and medication-induced, amid the state’s six-week abortion ban.

Four Mexican states allow abortions under most circumstances. These states would be the closest to Texas and the South if the current state-level bans on triggers go into effect. Before SB 8, South Texas abortion-seekers often crossed the border to purchase the abortion-inducing pills misoprostol and mifepristone from Mexican pharmacies.

Travel to Mexico or out of state is not an option for those who are over-worked, marginalized, poor, and particularly undocumented. This is why abortion funds as well as grassroots support networks work to increase access to information, resources, and guidance to help Texans with self-managed abortions using mifepristone or misoprostol.

This practice is safe and preferred by many people, especially rural residents who would need to travel long distances to see a provider. It also makes it possible for undocumented individuals to cross border immigration checkpoints. The Food and Drug Administration’s 2016 guidelines allows practitioners to prescribe the two-drug combination up to 10 weeks’ gestation.

If Roe is overturned and abortion providers are further criminalized, activists’ role in helping abortion-seekers manage their own needs outside the purview of traditional, clinic-based care will become all the more vital. Just as important would be helping women and all abortion-seekers understand the potential for their own criminalization — which has quickly become the biggest risk associated with self-managed abortion in the modern era.

Already, abortion support organizers offer legal assistance “know your rights” education and partnering with community bail funds in order to minimize the harms of existing efforts in Texas and elsewhere in the South to criminalize and punish pregnant people seeking abortions — as well as those who help them. Advocates warn that this would make the effort more effective. RoeIt has been overturned.

Right now, Texas and other states’ trigger laws only penalize providers and clinics, not patients who obtain abortions. In hundreds of cases, pregnant women have been punished for miscarriages or stillbirths in criminal court. Roe’s protections were first put in place in 1973. According to reporting from The New RepublicNational Advocates for Pregnant Women identifiedThere have been at most 1,600 cases of this nature in the past 50 year. These cases involved arrests or other deprivations.

In some cases, police or prosecutors may have used creative interpretations to target pregnant women or pursued charges that were not within the law’s limits. This happened in Texas last month, in a case that gives a grim glimpse of the future.RoeCriminal law landscape in the South

On April 7, Lizelle Herrera, 26, was charged with murder and held in a Starr County jail on a $500,000 bond in connection with what an indictment called a “self-induced abortion” stemming from a report a hospital made to police in January. South Texas reproductive rights groups including the Frontera Fund, South Texans for Reproductive Justice and If/When/How spearheaded the organizing efforts that eventually led to Herrera’s release.

Alexis Bay, Frontera Fund Board Director and Co-Founder Alexis Bay tells Truthout her organization mobilized quickly around Herrera’s case, working in coalition with local reproductive rights organizations in Central and South Texas to create a legal fund for Herrera and reaching out to Central and South Texas district attorneys, who quickly issued statements condemning the arrest and calling for Herrera’s release. The pressure from elected DAs proved critical in Starr County DA Gocha Ramirez’s decision to drop Herrera’s charges three days after her arrest.

“We should anticipate that those who seek abortion, whether it be in other states or self-induced, will face criminalization,” Bay tells Truthout. “That is the reality we are facing. [Herrera’s case] was just the tip of the iceberg.”

The rest of the iceberg could include abortion fund organizers. In fact, they’re already having tough conversations about how to retool their mission if Texas passes legislation criminalizing their advocacy work assisting Texans in obtaining abortions, providing resources and information about self-managed medication abortion, or making it illegal for anyone to travel out of state for the purposes of obtaining an abortion.

Some Texas Republicans are already eyeing ways to criminally prosecute abortion seekers and those who would help them — even if it means going around local DAs. State Rep. Briscoe Cain wrote last month to nonprofits that fund abortion. said he intends to introduce legislation that would allow DAs to prosecute abortion-related cases outside their home jurisdiction when the local DA “fails or refuses to do so.”

Herrera’s case, alongside this week’s Supreme Court leak, has thrown the significance of local “prosecutorial discretion” in pregnancy-related cases into sharp relief. Such discretion gives DAs the power to decide which cases to take, what charges to present and how to frame evidence to a grand jury — a power that will once again take precedence if the high court guts Roe’s privacy protections.

The decision could lead to a variety of prosecutorial approaches, even within Texas. At least five DAs have publicly pledged not to pursue abortion-related criminal prosecutions if they were elected. RoeIt has been thrown. Others may choose to decline to take these cases without making public pronouncements.

Travis County DA José Garza tells Truthout that if he finds himself on the front lines of an abortion or pregnancy-related test case involving the criminalization of a pregnant person or advocate, he will not use his office’s resources to pursue charges.

“From my perspective, criminalizing personal health care choices, and using resources to pursue criminal charges against people for making personal health care choices would make us less safe,” Garza tells Truthout.

Garza has previously committed to not pursuing charges against families of transgender youth who follow the advice of medical professionals to make personal health care choices amid Texas Republicans’ push to criminalize trans health care, and says he sees abortion and pregnancy-related health care choices in the same vein. But it’s “hard to fathom the depths of the cravenness” of the Texas Republican Party, he says, in terms of anticipating just how state lawmakers may legislate in opposition to the public interest and true public safety.

Garza, however, cited the Texas Constitution in response to State Representative Cain’s planned legislation to allow DAs to pursue charges outside their home jurisdiction, telling Truthout the plan “doesn’t sound it doesn’t sound like it’s in line with what the law clearly is here in the state of Texas.”

Still, anti-abortion DAs in other jurisdictions and states are primed take a hardline approach, especially under political pressure — and the vast criminal code stands ready to assist them. A National Association of Criminal Defense Lawyers reportMore than 4,450 federal crimes related to abortion are still in force, and there are tens of thousands more state-level criminal provisions. That doesn’t include state conspiracy, attempt and accomplice statutes.

In Texas, a law making it a crime to perform an abortion or “furnish the means for procuring an abortion” except to save the life of a pregnant patient is one such statute still on the books. The statute’s use of the word “procure,” some legal experts say, could extend to people seeking abortions directly.

This law was one of those lawyers who were challenged in the case which would eventually become the Supreme Court. Roe v. Wade. If Roe is overturned, Texas’s abortion criminalization statutes could again be enforced if the state legislature doesn’t remove them.

New statutes are being quickly drafted in addition to the existing penalties. A Louisiana House of Representatives legislative committee presented a bill this week which would expose a person for homicide charges if they have an abortion.

The Overturning Roe, abortion rights activists say, adds a layer of criminalization to people already targeted by the criminal legal system in the United States, generating more fear and anxiety in marginalized, vulnerable and rural communities — a reality they’re already working to prepare those communities for.

Lilith Fund’s Galindo says her organization is preparing to launch a second initiative of what they’re calling their “hype squad” effort encouraging people to share and uplift needabortion.org, which assists Texans to find an abortion clinic outside of their state. This new initiative will provide criminal legal trainings for organizers and anyone seeking abortions to help protect themselves from prosecution.

“Right now, what we really all have to be doing is thinking about how bail funds and abortion funds are going to have to work even closer together,” Galindo tells Truthout. “We’re going to have to really think hard about just who is going to be targeted and just who is going to need all of our support and protection.”

Roe’s reversal would also compound the effects of militarized enforcement and policing on undocumented people living in Texas’s border regions who have long seen their Fourth Amendment privacy rights eroded by U.S. Customs and Border Protection surveillance systems that collect biometric data including fingerprints, facial scans and blood samples, and slap undocumented people with ankle monitors that track their every movement.

The Overturning Roe, advocates in South Texas’s Rio Grande Valley say, would just provide one more reason for police to hand over undocumented folks to immigration enforcement.

“Folks who are undocumented live at this complex intersection where abortion is already criminalized enough in the state of Texas, and their immigration statuses are also criminalized,” says Nancy Cárdenas Peña, who is Texas director of policy and advocacy the National Latina Institute for Reproductive Justice. “So often the conversations that we’re having with folks is ‘Do I go to my health care appointment, or do I risk being placed into deportation proceedings? … Do I risk being separated from my family?’”

Undocumented persons held in immigration Detention Centers have been subject to violations of human rights for a long time, including forced sterilizationA lack of reproductive health services has led to miscarriages behind bars.

South Texas organizers claim they are concerned about the gutting of Roe’s privacy protections could impact people held in detention centers in particular. In the 1927 Buck v. BellThe Supreme Court ruled that a Virginia statute that allowed sterilization of people in psychiatric institutions was constitutional. This case has not been overturned. Some legal experts speculate that a state that can legally force someone to have children could also do so.

“It’s always this contradictory statement that we receive from immigration [enforcement] where immigration says they offer the full spectrum of reproductive health care, but we see, time and time again, these consistent violations and the need to campaign for people within detention,” Cárdenas Peña says. “We can talk about the conditions that immigration should be able to provide, but a cage is a cage.”

Don’t miss this opportunity to match your first year of monthly gifts! 

Millions of readers have trusted Truthout to keep them updated through extraordinary times over the past twenty years. Only a few thousand people support Truthout financially out of the millions. Now, after two decades of publishing donor-funded, independent journalism, we’re facing an existential threat to our survival.

You may already know about the difficult situation we’re in. Non-corporate news stories are being censored by big tech companies. As a result, our work is seen by fewer people every month when trustworthy journalism is most needed. To get through this time, we’re relying on support from you, our core readership – the activists, organizers, and community leaders that got us to where we are today.

Sunday’s generous Truthout supporter pledged $5,000 to match new monthly donations for the first year. This is a great opportunity to give, as your gift will go twelvefold to Truthout and independent journalism. 

Whether you’re able to make a $5 monthly donation, or give more, you’ll be making a real impact today. Please give what you are able.

Donate Now