Texas’ criminal and civil abortion penalties do not apply to women who get abortions

Jeff Cercone
·6 min read
13
While abortion providers can be charged with a felony, and potentially face life in prison if convicted, under Texas’ 2022 abortion law, but the law explicitly states that women who have abortions won’t face legal or civil penalties.
While abortion providers can be charged with a felony, and potentially face life in prison if convicted, under Texas’ 2022 abortion law, but the law explicitly states that women who have abortions won’t face legal or civil penalties.

Instagram posts

Statement: If a woman in Texas takes “abortion pills voluntarily,” she would be “charged with murder.”

Some social media posts are using the criminal sentencing of a man in Texas to criticize the state’s strict abortion laws. But the posts mischaracterize the law’s penalties.

A Feb. 11 Instagram post shared an X post, from a Democratic Florida 2020 congressional candidate, that said a Texas man secretly gave his wife abortion pills, "severely damaging the fetus," and was sentenced to 180 days in jail.

"If she had taken the abortion pills voluntarily, she would have been charged with MURDER," the post said. "This is about controlling women."

Another Instagram post shared a similar message from a Democratic Illinois congressional candidate, who said a woman who gets an abortion in Texas can face a $10,000 fine or life in prison.

These claims are inaccurate about the penalties women who undergo abortions in Texas face.

The posts refer to Mason Herring, a Houston man who, according to news reports, drugged his wife’s drinks aiming to induce an abortion. Herring was initially charged with felony assault to induce abortion, but he pleaded guilty Feb. 7 to injury to a child and assault on a pregnant person. He was sentenced to 180 days in jail and 10 years' probation.

Texas abortion laws are among the nation’s strictest. Although abortion is essentially outlawed in the state except for rare exceptions, women who get an abortion are not subject to criminal or civil penalties, according to experts and the text of Texas’ abortion laws.

Republican Gov. Greg Abbott signed House Bill 1280, known as the Human Life Protection Act, into law in June 2021. This so-called trigger law took effect Aug. 25, 2022, two months after the U.S. Supreme Court struck down Roe v. Wade.

Under the August 2022 law, a Texas physician who provides an abortion could be charged with a first-degree felony, which is punishable by at least five and up to 99 years in prison, and up to a $10,000 fine.

An abortion provider could also face a civil penalty of at least $100,000, the law states.

But these penalties do not apply to women who undergo abortions, said Seth Chandler, a University of Houston law professor.

The trigger law added a new chapter to the state’s existing Health and Safety Code, to read:

"This chapter may not be construed to authorize the imposition of criminal, civil, or administrative liability or penalties on a pregnant female on whom an abortion is performed, induced, or attempted."

Joanna Grossman, a Southern Methodist University law professor, said, "There are no laws in Texas that criminalize self-managed (or) (self-)induced abortion."

The law that criminalizes abortion specifically refers only to providers, she said. She added that Texas’ penal code provisions on assault and homicide "both expressly state that nothing a woman does to end her own pregnancy is a crime."

"There have been cases in which people have been wrongfully charged with crimes related to self-induced abortion," Grossman said. "But that’s a problem with rogue prosecutors rather than a reflection of what the law provides."

Grossman pointed to an April 2022 case in which a Starr County woman was arrested and charged with murder after she had what authorities called a self-induced abortion. A judge dismissed the charges shortly after the woman was arrested, and the district attorney said in a statement that it’s clear the woman "cannot and should not be prosecuted for the allegation against her."

Elisabeth Smith, director of state policy and advocacy at the Center for Reproductive Rights, a group that advocates for abortion rights, said that although Texas’ abortion laws have exemptions for pregnant people, "that doesn’t mean that pregnant people in Texas have never been, or will never be, charged with a crime for ending a pregnancy or being suspected of ending a pregnancy."

Smith pointed to the Starr County case as an example, and research from before Roe v. Wade was overturned.

Also in 2021, Texas enacted Senate Bill 8, known as the heartbeat bill, which bans abortions after a fetal heartbeat is detected. Many reproductive health experts have said it’s medically inaccurate to describe sounds heard over an early ultrasound as a heartbeat. The heartbeat law doesn’t include criminal penalties, but allows anyone to sue a person who provides, induces or aids and abets an abortion.

Still, Senate Bill 8 does not apply to women who have abortions, only to providers or people who help women get abortions. "Under this law, you cannot sue someone who received an abortion," The Texas State Law Library said on a frequently asked questions webpage.

PolitiFact's ruling

An Instagram post says if a woman in Texas takes "abortion pills voluntarily," she would be "charged with murder."

Doctors who administer abortions can be charged under Texas’ 2022 abortion law that makes it a felony to provide an abortion and is punishable with up to life in prison. But the law explicitly states women who have abortions won’t face legal or civil penalties.

We rate the claim False.

Our sources

This article originally appeared on Austin American-Statesman: No, women can't be prosecuted or fined for getting abortions in Texas