Texas is Treating Abortion as Capital Murder

They're laying the groundwork to put women and doctors in jail -- or on death row -- at the same time as abortion bans are leaving miscarrying women bleeding out in ERs.

Photo by Hédi Benyounes on Unsplash

In Texas, 38-year-old Justin Banta has been charged with capital murder for allegedly putting abortion-inducing drugs in his girlfriend’s drink, causing her to miscarry. If Banta did what he is accused of doing, he is a terrible person who committed a serious crime and deserves to go to jail.

It’s telling, though, that if the state’s claims are true, then Banta committed a crime against a women — but he’s being prosecuted for an alleged crime against a six-week-old embryo, which is being treated as a person he murdered. Should Banta face criminal penalties if he did what prosecutors say? Yes, because what he did is a serious assault. But that’s a very different question than the one of whether a “pro-life” state should the state kill Banta for killing an embryo.

Or, to say it differently: If Banta murdered someone, then it’s hard to argue that women who take abortion-inducing drugs aren’t doing the same thing — ditto the fertility specialists who dispose of unused embryos. Which is of course what the anti-abortion movement argues, and what Texas prosecutors are trying to lay the legal groundwork for.

The capital murder charges are even more terrifying. There are many lesser offenses prosecutors could use to charge Banta. But they’ve spent several months building this particular case. And that’s because they are building toward a legal landscape within which they can implement the death penalty for abortion.

That Texas prosecutors seem to have not charged Banta with assaulting a pregnant woman really says it all. She’s the one whose drink was poisoned. She’s the one who suffered the pain and physical ramifications of a miscarriage. But to “pro-life” Texas prosecutors, she’s an incubator, not a person. And so they are using the power of the state to reclassify an embryo as a born human one might be executed for killing, while totally ignoring the injury that was done to the actual born person in question. And not just that — they’re so pro-life they want to kill a guy as punishment.

This really is the anti-abortion movement in a nutshell.

Texas, like many anti-abortion states, has a provision in its law to prevent women who have abortions from being prosecuted. But that’s a matter of political expedience — anti-abortion legislators know that jailing women for abortion is really, really unpopular. What’s not unpopular is jailing men who do things like slip abortion pills into their girlfriends’ drinks. And so they’re using hugely unsympathetic men like Banta to expand the outer reaches of abortion bans and fetal protection laws, working to establish a legal norm of treating even embryos and fertilized eggs as born people — even putting to death people who cause embryonic death. Texas prosecutors are also clear that they would like abortion providers treated like Banta. And at some point, abortion providers might face similar punishments (right now, they face 99 years in prison). But what would make a fertility doctor who discards unused embryos any different? What would make a woman who takes abortion pills of her own volition any different? If the woman is taken out of the equation — and Texas is certainly trying to establish a kind of independent embryonic and fetal personhood in which the woman is shaded out — then the context of who brought about embryonic death isn’t really relevant.

It is very hard to have this both ways: To say that a man who gives a woman an abortion pill is a murderer, but a woman who takes one is not. A man who gives a woman an abortion pill without her consent is a serious asshole and a criminal and an assailant, the same way a man who has sex with a woman without her consent is a rapist but a man who has consent is not. But this is a case that totally disregards the woman involved.

It’s also a vehicle through which to foment distrust in abortion pills. Abortion is banned in Texas and the anti-abortion movement supposedly got what it wanted when the Supreme Court overturned Roe v. Wade and sent abortion’s legality back to the states, but the anti-abortion movement has never really wanted this to be a state-by-state issue. That’s why they’re working to ban abortion pills nationwide. There are a bunch of strategies at play there, including using old obscenity laws that ban the mailing of abortion devices and classifying the pills as “forever chemicals.” But they’re also trying to make the case, against all evidence, that abortion pills are dangerous. In reality, the pills are safer than many widely-available medications and treatments, including Penicillin (and they are many magnitudes safer than Viagra). Cases like this, which are rare but extremely upsetting acts of domestic violence, are being used to make the case that abortion pills — not men who commit violence against women — are the problem. Texas could prosecute domestic violence and assaults against pregnant women if it wanted to. Instead, abortion opponents are arguing that abortion pills have to be banned in order to protect women, while failing or refusing to use the law to protect women — and passing bans that threaten women’s lives.

To wit: A new analysis by ProPublica finds that abortion bans like the one in Texas have made first-trimester miscarriages much more dangerous. Comparing emergency room data from before Texas’s abortion ban to data from after, ProPublica reporters found that the number of miscarrying women needing blood transfusions in the ER skyrocketed by 54%. That’s likely because, without an abortion ban, women who are miscarrying are offered what is essentially an abortion procedure to safely complete the miscarriage. Without that procedure, they risk hemorrhage — and if that happens, which it often does, women can die. At least one woman in Texas already has, after she bled out for 10 hours after a miscarriage:

What happened to Porsha Ngumezi shows how dangerous it can be to delay care, according to more than a dozen doctors who previously reviewed a detailed summary of her case for ProPublica.

When the mother of two showed up bleeding at Houston Methodist Sugar Land in June 2023, at 11 weeks pregnant, her sonogram suggested an “ongoing miscarriage” was “likely,” her doctor noted. She had no previous ultrasounds to compare it with, and the radiologist did not locate an embryo or fetus — which Ngumezi said she thought she had passed in a toilet; her doctors did not make a definitive diagnosis, calling it a pregnancy of “unknown location.” After hours bleeding, passing “clots the size of grapefruit,” according to a nurse’s notes, she received two blood transfusions — a short-term remedy. But she did not get a procedure to empty her uterus, which medical experts agree is the most effective way to stop the bleeding. Hours later, she died of hemorrhage, leaving behind her husband and young sons.

Abortion bans mean that pregnant women are simply treated as sub-human, not entitled to the same medical care and consideration as other patients. ProPublica reports on one woman, Sarah Pablos Velez, who was pregnant at 30 when her doctor saw her pregnancy wasn’t viable. But she wasn’t offered a termination; instead, she was sent home and told to come back two weeks later and check again. She wound up in the emergency room — and from there, things only got worse:

Over two visits to the emergency room, doctors told her that she could complete the miscarriage at home, even as she reported filling up three toilet bowls with blood and a nurse remarked that they needed a janitor to clean the floor, De Pablos Velez and her husband recalled. No obstetrician ever came to assess her condition, according to medical records, and while her hospital chart says “all management options have been discussed with the patient and her husband,” De Pablos Velez and her husband both told ProPublica no one offered her a D&C.

She was told to follow up with her OB at her next appointment in three days. Six hours after discharge, though, she was trying to ride out the pain at home when her husband heard her muttering “lightheaded” in the bathroom and ran to her in time to catch her as she collapsed. “She was pale as a ghost, sweating, convulsing,” said her husband, Sergio De Pablos Velez. “There was blood on the toilet, the trash can — like a scene out of a horror movie.”

An ambulance rushed her to the hospital, where doctors realized she no longer had enough blood flowing to her organs. She received two blood transfusions. Without them, several doctors who reviewed her records told ProPublica, she would have soon lost her life.

Letting pregnant women bleed out and sometimes die in the name of protecting embryos, while using the full power of the state to try to kill a guy for causing an abortion while not even bothering to prosecute him for assaulting a pregnant woman — I’m not sure I could have invented a clearer distillation of the “pro-life” movement.

xx Jill