A group of reproductive rights proteters stand in front of the granite Texas capitol building, holding signs such as "Bans Off Our Bodies" and "We're Mad + We'll Vote!"
Gus Bova

Before ‘Roe’—and After

What criminalized abortion looked like in Texas before 1973, and what it may look like after 2022.

by and

A version of this story ran in the July / August 2022 issue.

Photo credit: Gus Bova/The Texas Observer

In 1921, a young woman named Eunice left her northeast Texas hometown of Bonham for Dallas. She didn’t get to stay long. Police found her and brought her back. A grand jury was investigating whether the 19-year-old’s recent miscarriage was actually an abortion.

The grand jury indicted Eunice as an accomplice of the doctor who allegedly performed an illegal abortion on her. She was jailed for two weeks and not allowed to see her family. Then, officials took her from jail to a public courtroom in Fannin County to testify against the local doctor who had performed the procedure that led to her miscarriage. Abortion had been a felony crime in Texas since 1856, and this was the way it was traditionally prosecuted: Put the woman on the stand and make her give evidence against others involved.

From the stand, Eunice was pressed repeatedly to divulge invasive and intimate details about her life and her desperate efforts to end her pregnancy, according to case records from the Texas Court of Criminal Appeals that are held by the Texas State Library and Archives Commission.

Prosecutors asked for the precise words she used when she asked the doctor for the procedure. They pushed further for details about the instruments used—one was silver, she said, another copper-like. She was asked whether she knew where the womb was and where the vagina was. They asked where the instruments were inserted. 

“These instruments were placed in my womb, I guess is what you would call it, by [the doctor], and this water passed right after that,” Eunice said. 

Her trial provides a harrowing glimpse of a time when abortion was a crime in Texas and hints at what may be in store once again, a century later, for women in the state. 

Fifty years after Eunice’s indictment, a federal court in Dallas struck down the state’s expansive abortion ban, prompting the U.S. Supreme Court to affirm the ruling and establish a constitutional right to abortion in Roe v. Wade, based in the right to privacy. Now, the court appears to be on the verge of reversing that 1973 landmark decision.

In preparation, Texas Republicans have passed a “trigger law” that, if Roe is struck down, will automatically restore the state’s old criminal abortion law. What may follow is an enforcement regime that is far more aggressive, punitive, and weaponized than the one in place in 1921.  

“None of the trigger laws that are waiting in the wings impose criminal penalties directly on the individual,” said Farah Diaz-Tello, senior counsel and legal director at the reproductive justice group If/When/How. “They are all explicitly aimed at people who perform abortions.” 

Still, she expects that prosecutors in Texas and other anti-abortion states will take it upon themselves to prosecute people who end their pregnancies—even though that is prohibited by law.

Through the 19th century and most of the 20th, until the Roe decision was issued, Texas women who were believed to have had abortions were often called to testify in criminal trials. Although seldom prosecuted themselves, they were pressured to testify against doctors and others who’d been involved in arranging the procedure, baring their shame in public. They were typically the only available witnesses who could provide the necessary testimony to convict abortion providers and were often threatened with punishment if they didn’t cooperate.  

Women at the time were typically framed as the “second victim” of abortions, and prosecutors portrayed abortion bans, in part, as protecting pregnant women from being exploited.

Eunice’s case was extreme—the women themselves were rarely jailed and almost never criminally indicted for abortion crimes. Prosecution almost always targeted the person who performed or induced the abortion or helped in some way. Women at the time were typically framed as the “second victim” of abortions, and prosecutors portrayed abortion bans, in part, as protecting pregnant women from being exploited and/or pressured into dangerous, sometimes fatal procedures.

Courts in many states, including Texas, had determined by the late 1800s that their criminal abortion statutes could not be used to prosecute women for inducing their own abortions or as accomplices in the procedures. In Eunice’s case, the doctor’s attorneys argued that the state could not rely on Eunice as the sole witness to a criminal abortion in which she was also indicted as an accomplice. The doctor was convicted and sentenced to five years in prison, but the conviction was overturned on appeal. His lawyers contended that Eunice’s testimony was unduly influenced by being jailed and that she was “testifying for her freedom.”

The Texas Court of Criminal Appeals agreed. “A woman who voluntarily submits to an abortion, or advises, encourages or procures it to be done is not an accomplice” under the state’s criminal law, the court wrote. 

There is no indication in the records whether Eunice herself was ever prosecuted—or when she was released from jail. But in the meantime, her life was interrogated and torn apart in public. She was asked about her relationship with her boss at the local cotton mill where she worked. He had impregnated her, supplied her with medicine to try to self-induce, promised to pay her back for the abortion, and then fled the state when she was sick in bed. A former co-worker was summoned to further testify to their relationship. Her doctor and nurse gave details about the miscarriage. 

Eunice’s case was one of just two known instances where women were charged and jailed for an illegal abortion before Roe, and thus has been frequently cited by the anti-abortion movement in an attempt to downplay the legal threats to women of the pre-Roe era and to suggest that pregnant people need not fear legal repercussions if abortion is again criminalized. But just because women weren’t typically prosecuted for illegal abortion didn’t mean they weren’t routinely arrested, detained, examined, interrogated, and threatened with public exposure and ruin.

“The road to prosecutors deciding that, ‘Oops we can’t actually prosecute someone’ could be pretty rough,” said Mary Ziegler, a Florida State University law professor who studies the legal and criminal history of abortion and reproductive rights. An ominous warning for what could come after Roe came out of South Texas earlier this year. A 26-year-old woman named Lizelle Herrera was arrested and charged with murder in Starr County for an alleged self-induced abortion that had apparently been reported to police by the local hospital. The case drew national attention and she was eventually released and the district attorney dropped the charges.

While Texas criminal statutes clearly do not allow people to be charged for the outcomes of their own pregnancies, reproductive rights advocates warn that this has not always been the case, both before and after Roe was decided, and in the future after it falls.

A collection of abortion-related newaspaper clippings including "Texas Abortion Law Held Constitutional" "Three Charges After Dallas Police Raid Upon Hospital" "Irving Abortion Raid Brings Arrests of 18"

According to scholars, the medical industry—including doctors and hospitals—were among those who pushed to criminalize abortion, despite the fact that doctors were also the targets of prosecution in abortion cases. As Leslie J. Reagan, a University of Illinois professor, documents in her seminal book on the history of illegal abortion prosecution, When Abortion Was a Crime, law enforcement relied on physicians and hospitals to report suspected abortions. 

“Although some physicians voluntarily worked to enforce the criminal abortion laws, others would have preferred to have nothing to do with it,” Reagan wrote. “In illegal abortion cases, doctors found themselves caught in the middle between their responsibilities to their patients and the demands of government officials.”

Reagan, whose research focuses on Chicago from the late 1800s through the early 1900s, found that while successful convictions were rare, grand jury investigations of suspects and coroners’ inquests became more and more common. Between 1901 and 1919, the Cook County coroner investigated an average of 60 suspected abortion deaths per year, though many were found to be accidental, self-induced, or otherwise not criminalized. The women subjected to abortion investigations—often interrogated by police on their deathbeds—were most often working-class immigrants and women of color. 

In the decades immediately preceding Roe, law enforcement tactics on abortion crimes grew increasingly aggressive. By the 1940s and ’50s, police raids on suspected abortion providers’ offices and underground clinics were a key part of abortion crime enforcement, Reagan writes, akin to crackdowns on criminal rackets involving gambling, prostitution, and bootleg liquor. 

While she focused on Chicago, policing of abortion was similar throughout much of the country. In Texas cities like Dallas, police department vice squads investigated illegal abortions. The women who were caught and arrested in these raids were then pressured to flip on the providers.

In the 1970s, Henry Wade became perhaps the most famous abortion prosecutor in U.S. history in the eponymous Supreme Court case that legalized abortion.

A black and white portrait of famous abortion prosecutor Henry Wade, a white man with gray hair and a round face, looking to the right with a serious expression. He's wearing a traditional suit and tie.
Portrait of Henry Wade courtesy of the Dolph Briscoe Center for American History

Wade lost his first bid for Dallas County district attorney in 1946 to Will Wilson—a young, ambitious lawyer who set the tone for the office that Wade would later inherit. Wilson would go on to be a state Supreme Court justice, attorney general, and top appointee in Richard Nixon’s Department of Justice. But first, as the Dallas DA, he garnered a reputation as a hard-charging crusader with a penchant for staging high-profile raids. He led a tough-on-crime crackdown in the city that included aggressive prosecution of criminal abortions.  

Texas newspapers largely ignored the debates around abortion policy but provided ample coverage of illegal abortions as part of the crime beat. Front pages in Dallas and across the state would occasionally blare with sensational headlines about police raids and nefarious abortionists. 

Soon after taking office, Wilson led one such raid. In March 1947, he and a seven-man team from the Dallas police vice squad staged a raid at a suspected “abortion hospital” in Oak Cliff, breaking in while a young woman was on an operating table in the middle of a procedure. According to the Dallas Morning News, about 20 women were in the waiting room at the time of the raid; many of them were temporarily detained by police and made material witnesses. Two women who allegedly operated the clinic were arrested and charged with 10 counts of illegal abortion. One woman died before going to trial, but the other was convicted and sentenced to five years in prison. 

The case was said to have been the first abortion prosecution in Dallas County in 20 years and the first successful conviction in 30 years. The Dallas District Attorney’s Office continued to prosecute abortion crimes, including under Wilson’s successor, Wade, who took over in 1951.

The next year, a news headline announced: “Dallas Abortion Racket Revealed.” The dispatch told of police breaking up a “widespread abortion ring” and arresting an osteopath, nurse, and two other suspects on charges of “abortion by use of drugs.” The assistant DA claimed his office had information suggesting that this was one of the largest illegal abortion operations in the Southwest. Police who watched the place for weeks before the raid reported seeing cars with plates from up to 13 states. The osteopath was convicted on a single charge of illegal abortion and sent to prison for two years. 

In 1961, the DA’s office and police staged another raid of a tidy suburban home in Irving that they sensationally referred to as a “mass production abortion palace.” After months of surveillance, police surrounded the house and apprehended several women who came out. The women were taken to the sheriff’s office, where a doctor examined them. 

At 10 p.m., police broke down the door and entered the house. In the back room, they found a woman receiving an abortion. Her mother and child were in the front room, according to newspaper accounts. Another woman who’d brought a young woman to the house was pregnant herself, and after being arrested she went into labor. Three Dallas women were charged with operating the illegal “abortion racket” and all were convicted. 

However, Wade’s son Kim maintains that his tough-on-crime dad was ambivalent about prosecuting abortion cases. The Southern Baptist from Rockwall County may have even been sympathetic to the cause of abortion reform. In Joshua Prager’s new book, The Family Roe: An American Story, Kim claimed that his father “disagreed with the abortion statutes it had been his charge to defend.”

That’s not entirely unexpected. In that era, abortion was not a driving political issue, nor were voters calling out for aggressive enforcement of abortion crimes. In fact, the public was coming around to the idea that outright abortion bans should be softened.

Through the 1960s, the rising feminist movement was pushing to liberalize abortion regulations in states across the country. By the early ‘70s, several states had legalized abortion and many more reformed their laws. In the remaining states, prosecuting abortion crimes had become more difficult. In 1971, the U.S. Supreme Court raised the bar for prosecutors to prove that an abortion had not been done to protect the woman’s life. A survey by the Texas Medical Association found that between 1965 and 1969, more than 200 abortions were not clearly illegal under the state anti-abortion law, which included an exemption if the woman’s life was at risk. Some Texas politicians were considering loosening the law on abortion. Still, there was plenty of resistance. Asked what he thought should be done with an abortion reform bill in the Legislature, a state representative from Lufkin responded, “Shoot the sponsor.” 

Then came Sarah Weddington and Linda Coffee, who decided to challenge the constitutionality of abortion bans head-on. But first they had to find a client and a case to represent their argument. That turned out to be Norma McCorvey. 

McCorvey, who went under the alias “Jane Roe” in the lawsuit, lived in Dallas, where Coffee had recently begun her career. Before the suit, Coffee actually had hoped to be hired by Wade, who had earned a reputation as an extremely effective prosecutor. His office was reportedly shocked when they were served with the lawsuit papers, wrote author Marian Faux in her landmark book about the case, Roe v. Wade. Still, prosecutors took the challenge to the law seriously.

Attorneys from Wade’s office and the Texas Attorney General’s office argued the case for the state. After the trial court ruled in favor of Roe, the judge neglected to put an injunction in place to keep Wade’s office from enforcing the law while the case continued. Wade announced that his office would continue to prosecute abortion cases while appeals went through. But even at the U.S. Supreme Court, Wade himself did not personally argue the case. After the decision was handed down, he didn’t speak publicly about the verdict, which enshrined him in history as the personification of the anti-abortion system. The Washington Post reported years after Wade’s death that he never even read the decision.  

Texas was already well on its way to a new era of criminalized abortion before Supreme Court Justice Samuel Alito’s draft opinion leaked in May. A post-Roe Texas could make the pre-Roe days look quaint.

During the last session of the Texas Legislature, Republican lawmakers passed Senate Bill 8, a draconian law that effectively banned abortion through a private civil enforcement apparatus. Any private citizen can slap a civil lawsuit on anyone who is believed to have aided or abetted an abortion in the state. If the plaintiff wins, they get a $10,000 bounty and can recoup their legal fees. If they lose, the plaintiff has no obligation to cover the defendant’s attorney bills. 

The law, which the Supreme Court declined to strike down, marked an ominous threat to civil liberties. It’s also a radical expansion of civil liability by a Republican Party that has drastically reduced the ability of everyday Texans to seek the recourse of civil courts against big business. 

A diverse crowd of protesters chants while holding signs with a variety of reproductive rights slogans like "Bodily Autonomy Should Not Be An Anomaly" "Abortion Saves Lives" and "Here To Overy-Act".
An abortion rights protest at the state capitol in Austin, May 2022 Gus Bova/The Texas Observer

SB 8 gives standing to any private citizen to bring a suit, and could potentially be applied not only against the person who performs the procedure, but someone who gives their friend a ride to the clinic; an employer or insurer that covers the cost of reproductive healthcare; and organizations that help Texans pay for the costs of accessing abortion out of state. Some Republican lawmakers have already taken to social media to publicly threaten criminal prosecution of people who’ve made public their financial support for abortion options. 

The law’s civil enforcement mechanism was a legal innovation aimed at avoiding federal injunctions that have stymied the GOP’s past attempts at strict abortion laws and ultimately served as a temporary solution until the newly installed conservative majority on the high Court got the chance to do away with the constitutional right to abortion. 

Like many other Republican-dominated states, Texas passed a “trigger” law that would automatically criminalize abortions within 30 days of a Supreme Court ruling that returned abortion regulation to the realm of states’ rights. Under the law, it would be a felony to “knowingly perform, induce, or attempt an abortion.” An unsuccessful attempt could mean at least two years in jail; a successful abortion would be a first-degree felony, subject to a mandatory minimum of 5 years in prison. 

Diaz-Tello, the legal director for If/When/How, said that abortion providers and those who help provide access to abortion will be the main targets. 

“Those are the people that [abortion prosecutors] are really looking to terrorize, to chill them from getting people the care they need,” she said. “In the hopes that, because the state doesn’t actually have jurisdiction over the individual body to keep them from having an abortion, that they can cut them off from any source of care or support that they need to be able to get an abortion.”

Under the state’s trigger law, as was true before Roe, the only exception would be if a licensed physician deems a woman’s pregnancy to be life threatening or threatening “a serious risk of substantial impairment of a major bodily function.” That exemption wouldn’t apply to a woman who, for instance, threatened to take her own life or to make a dangerous attempt to self-induce an abortion. Further, any doctor suspected of performing an illegal abortion would become a target of Ken Paxton’s Attorney General’s Office, which is empowered to seek civil penalties of “not less than” $100,000 for each violation. The Legislature also restricted access to abortion-inducing medications and made it a crime to prescribe abortion by medicines through mail or telehealth services, cutting off other avenues for women.

Under the law, it would be a felony to “knowingly perform, induce, or attempt an abortion.”

While current Texas law explicitly prohibits the prosecution of women for their pregnancies, that hasn’t kept zealous prosecutors from going after them anyway. And reproductive rights lawyers are concerned that this will accelerate under draconian abortion ban laws in states like Texas. Since Roe, people have been increasingly policed and prosecuted for ending their pregnancies. From 1973 to 2005, there were 413 cases in which a pregnancy led to attempted prosecution and incarceration, according to a 2013 report by the National Advocates for Pregnant Women. 

In 2003, Texas passed a feticide law. Three weeks later, the district attorney in Potter County issued a letter to all practicing physicians in the Panhandle county warning that the law requires them to report all women who are using or have used narcotics during pregnancy. As a result, more than 50 women were reported, charged with crimes, and in many cases, incarcerated. The Court of Criminal Appeals ruled in 2006 that the law did not allow for the prosecution of pregnant women. By that point, some women had been locked up for years as their cases worked through legal appeals.

Over the past several years, the dominant Republican Party in Texas has ceded more and more ground to the demands of the far right, especially on abortion. Right-wing lawmakers and activists are now calling for laws that would make receiving an abortion a capital crime. State Representative Briscoe Cain, a Deer Park Republican, has already promised to introduce legislation in the 2023 regular session that would empower district attorneys and the state attorney general to investigate and prosecute alleged abortion crimes in any Texas jurisdiction. 

The aim would be to undercut the power of the growing number of liberal district attorneys in some of the state’s most populous counties, including Travis, Bexar, Dallas, and Harris. Several of those district attorneys have, in response to Alito’s leaked draft opinion, pledged not to enforce the state’s criminal abortion laws if Roe is overturned. 

Cain and 13 other GOP legislators have issued a warning to companies like Tesla and Lyft that they will push legislation to kick them out of the state if they follow through on promises to cover employees’ costs to access abortion care outside of Texas. 

Today, the tools available to zealous prosecutors are also far more powerful than they were in the early 21st century as law enforcement is able to weaponize troves of internet data in criminal investigations.  “In the decades since Roe, smartphone and other surveillance technology has been introduced and is available to individuals, anti-abortion advocates, employers, and the government, making pregnant people vulnerable to surveillance of their whereabouts, their physical health, and their decision-making process regarding their bodies in multiple new ways,” Cynthia Conti-Cook, a civil rights lawyer and technologist, wrote in a 2021 report.

For years, a driving force of the conservative movement and the Republican Party has been to overturn Roe v. Wade. Now that they are on the edge of success, the question becomes: What now?