We're a Country That Prosecutes Abortion Providers Again. Here's What's Different This Time.

[In It to Win It]

SLATE (Archived)

On Monday, Texas Attorney General Ken Paxton announced what is believed to be the first arrest and prosecution under an abortion ban since the reversal of Roe v. Wade. Paxton’s office announced the arrest of Maria Margarita Rojas, a Houston midwife who allegedly operated a network of clinics, for violating the state’s abortion law and practicing medicine without a license. This is almost certainly not the first prosecution that Paxton could have brought; it’s hard to believe that the attorney general’s office hasn’t uncovered a single illegal procedure in the nearly three years since the Supreme Court destroyed the right to choose abortion. Instead, Paxton likely picked Rojas for a reason: not just to send the message that “every life is sacred,” as Paxton told the press, but also to signal that midwives who provide abortions are unsafe, unqualified, and dishonest. Paxton’s strategy fits into a pattern of pre-Roe prosecutions, all while concealing the ways in which the criminal law related to abortion has become far harsher than it was before 1973.

Few details about Rojas’ case are publicly available, but Paxton arrested her and a staff member, alleging that they worked in four clinics across Texas’ Waller County. According to Paxton, Rojas and her colleague provided illegal abortions and falsely held themselves out as licensed medical professionals. (Rojas herself has been a licensed midwife since 2018, but Paxton appears to allege that she identified as a physician.)

The fact that Rojas is not a physician is central to Paxton’s strategy: He claims that the prosecution will protect women from unlicensed and presumably unsafe providers. His office seems to be hearkening back to horror stories like that of Dr. Kermit Gosnell, who was convicted of murder in 2013, and was accused of killing viable infants who were born alive, illegally dispensing opioids, and killing several patients. To date, Paxton hasn’t laid out evidence that Rojas harmed her patients beyond employing unlicensed staff.

The more we understand the history of criminal abortion laws, the less surprising Paxton’s move is. The physicians who crusaded in the 19th century to criminalize abortion throughout pregnancy claimed to protect unborn life, safeguard marriage, and ensure that white Protestant women, rather than Catholic immigrants, populated the nation. The laws these doctors championed sometimes seemed to authorize the punishment of women as well as doctors. But in and beyond the 19th century, prosecutors mostly charged providers, not patients, believing the testimony of the latter to be necessary to get enough evidence for a conviction.

[no_hypocrisy]

1. Her defense goal should be jury nullification.

[RJ-MacReady]

2. pro-choice jurors get ready

Do what you can to get on that jury and acquit no matter the evidence.