Two court cases: Texas charges a women with murder for abortion, and once again, Gibson’s versus Oberlin College

April 10, 2022 • 12:00 pm

This story was reportd by Sophie Kasakove in yesterday’s New York Times and has been reported widely elsewhere (e.g., here). Click on the screenshot to read:

Yes, it’s Texas again, which of course enacted the nation’s most stringent abortion law, and making it enforceable by private citizens instead of the state. Any individual can report others involved in helping a woman get an abortion in Texas (the woman herself can’t be fined), and then can sue those “helpers” for $10,000 each. This case, however, is a bit different, for it involves the state charging a women with murder for the death of a fetus via abortion:

A South Texas sheriff’s official said on Saturday that a 26-year-old woman had been indicted on a murder charge in connection with the “death of an individual through a self-induced abortion.”

The woman, Lizelle Herrera, 26, was arrested on Friday and detained in Starr County, the official, Maj. Carlos Delgado, said in a statement reported Saturday by The Associated Press. Ms. Herrera was released on bail on Saturday, according to a statement from the Frontera Fund, an abortion rights organization. Her bond was set at $500,000.

While circumstances of the case remain unclear — the statement did not say whether Ms. Herrera was accused of having the abortion or aiding one, or how far along the pregnancy had been — the indictment comes months after the Texas Legislature passed several restrictions on abortion.

This apparently is not a violation of the new anti-abortion law, because she’s been charged by Texas and not reported by a private individual for purposes of a lawsuit, but it’s not even clear what law the woman has violated. In fact, the charge itself seems to abrogate the law (my bold below):

It is unclear what statute Ms. Herrera is being indicted under. An abortion ban that took effect in Texas in September, known as S.B. 8, prohibits abortion after six weeks but leaves enforcement to civilians, offering them rewards of at least $10,000 for successful lawsuits against anyone who “aids or abets” an abortion.

The Texas Legislature then enacted another law, S.B. 4, which establishes a criminal violation — a state felony punishable by a $10,000 fine and up to two years in prison — for providing medical abortion pills after 49 days of pregnancy, or for providers who fail to comply with a series of new regulations and procedures. That law also exempts pregnant women from prosecution.

One section of the Texas penal code exempts expectant mothers from being charged with murder in connection with “the death of an unborn child.” Most states instead target abortion providers when an abortion is deemed illegal. In most of the country, abortion is prohibited after fetal viability, generally 22 to 24 weeks, though several states are moving to ban abortions at much earlier stages in anticipation that Roe will be overturned.

According to the statement by Major Delgado, Ms. Herrera was indicted on the murder charge after she “intentionally and knowingly” caused the death of an individual by self-induced abortion.

So if Herrera helped another woman with that woman’s abortion, she must be reported and then a civil case brought against her, which is not what happened. If Herrera had a self-induced abortion, whether through pills or some other method, she cannot be charged with murder. Yet she was.

What we have here, in fact, is a charge brought on the explicit presumption that a fetus is equivalent to a living person who’s been born. I asked reader Ken Kucec about his take on this charge, and got this response:

As for the Texas abortion/murder case, it wasn’t brought under SB8, the Texas citizen-vigilante statute, but is being prosecuted by the Starr County district attorney’s office under Texas’s murder statute. It’s a novel application of the statute, turning on the “personhood” of a fetus, but we’re talking about Texas here (which is far and away the most prolific user of capital punishment) so there’s no telling what may happen.

Indeed. And if the U.S. Supreme Court, as expected, throws out Roe v. Wade, they may leave it to the states to enact their own regulations about abortion. In that case, Texas very well could criminalize abortion at any stage as a case of murder. If the U.S. Supremes deem it proper, the states can pretty much do as they want.


The second article comes from The Bulwark, a centrist or right/center venue with an anti-Trump view.  But its politics hardly matter because I’m not going to deal with that issue. Click to read, though the headline is misleading.

I’ve long been on the side of Gibson’s Bakery against Oberlin College, as Oberlin, under false accusations of racism, defamed the bakery in 2016 and engaged in sleazy manipulations (see my many posts here; but it’s best to read the Wikipedia entry on the case).

In 2019, a jury found the college guilty of “libel, slander, interference with business relationships, and interference with contracts in the Lorain County Court of Common Pleas.” The damage award to the bakery was huge: $44 million dollars in compensation and punitive damages. A judge later reduced the award to $31.5 million, with $6.5 million of that going for lawyers’ fees. That’s still a big bite for Oberlin College, which has been financially constricted since they had to put up security for that amount.

Oberlin didn’t give in but appealed. However, on April 1, the appellate court affirmed the civil verdict. The court’s 50-page finding is here. I haven’t read through the whole thing, but the upshot is that the original verdict stands. Reporter Daniel McGraw, who covered the case from the beginning, says this:

. . .  the presiding judge, John Miraldi, set a high bar for the plaintiffs, ruling before the trial that little of what the students protesting outside the business said or did was admissible, because the plaintiffs could not attach the school to their students, who were exercising their free speech.

The Gibson’s legal team needed to prove two things: (1) that the school’s post-protest actions added fuel to the defamation fire; and (2) that the school knew that these actions were wrong, but kept the racist message going in order to satisfy parts of their student body and faculty.

The appeals court verdict lays out in great detail how Gibson’s satisfied those requirements.

There was testimony that some of the school administrators were themselves at the protest and handing out fliers. Administrators also allowed students to use college equipment to make copies, bought pizza and beverages to feed the protesters, and bought mittens for protesters whose hands were cold. The racism claim from the student senate resolution was emailed to all students and posted on the wall of the student center for a full year.

The second part—proving both intent and what the Oberlin College knew in terms of the veracity of the claims—is the heavier burden.

But the lawyers for Gibson’s uncovered emails and phone messages between administrators which supplied the proof to meet this burden.

Some examples: A text from one administration official said they “hope we rain fire and brimstone on that store.” There were references to that “stupid bakery.” Another email said, “I’m baffled by [Gibson’s] combined audacity and arrogance.” And how, by fighting Oberlin College, Gibson’s “made their bed now.” One administrator suggested that restricting students’ use of their school-issued money cards at Gibson’s would be “another tool for leverage.” The dean of students was confronted with a retired professor who expressed skepticism that Gibson’s was racist. The dean’s response: “Fuck him, I’d say unleash the students.”

Oberlin was hoist with its own petard—administrators’ emails. This is an example of how the vindictivness of the woke, combined with their absolute certainty that they’re on the side of the angels, can lead them into trouble.

The error with the headline is its claim that the Oberlin matter has now “come to an end.” I didn’t see how given that Oberlin has dug in its heels about this case, so why shouldn’t they appeal to the Ohio Supreme Court? Reader Ken answered this query in a comment I didn’t see when I was traveling:

In response to my query on my own brief report on April 3:

If I know Oberlin, they’ll further bankrupt the school by appealing higher up (if they can under the law).

Ken responded:

Oberlin can still seek rehearing by the three judge panel that decided the case or rehearing from all the active judges on Ohio’s Ninth District Court of Appeals sitting en banc. Failing that, the school can seek discretionary review from the Ohio Supreme Court.

If the Ohio Supremes decline to hear the case or if that court affirms the appellate decision, Oberlin’s final recourse would be to seek a writ of certiorari from the US Supreme Court. To do so, it would have to raise a federal issue rather than an issue of Ohio state law — in this instance, presumably an issue arising under the First Amendment. (This was how The New York Times got the defamation judgment awarded against it by Alabama courts before SCOTUS in New York Times v. Sullivan.)

Review before SCOTUS on certiorari is discretionary, too, with the Court granting review of something fewer than a 100 cases a year, out of over 10,000 annual petitions for certiorari. From what I know of the Oberlin case, it doesn’t appear to present a particularly compelling case for consideration by SCOTUS.

In the meantime, the interest on the trial judgment keeps mounting.

And I asked him one more question:

Do you THINK that Oberlin will continue the appeal process?

Ken’s response:

I think Oberlin’s attitude is in for a dime, in for a dollar, so I expect the school will probably run out the string to the bitter end, even though, as a general principle, a party’s chances of success diminish the further up the appellate process it seeks relief, since the standards of review get stricter and the court’s have greater discretion to deny consideration of the case.

In the meantime, two Gibsons have died without getting dime one. As The Bulwark reports:

The coda to this story is that David Gibson and his father, Allyn, owners of the bakery, both died during the intervening years. David Gibson testified in court that his father told him before the trial started that, “In my life, I’ve done everything I could to treat all people with dignity and respect. And now, nearing the end of my life, I’m going to die being labeled as a racist.”

Allyn Gibson survived his son David’s death, but did not live to see his family’s business vindicated. He died just a few weeks ago, on February 12.

So no, this case is not yet at an end. Oberlin has decided to run out its string, and I believe that further interest accrues on the fine that was assessed.

h/t: Ginger K., Steve


27 thoughts on “Two court cases: Texas charges a women with murder for abortion, and once again, Gibson’s versus Oberlin College

  1. What is especially damaging about Oberlin’s behavior is that they provide evidence for the Right to use against any progressive candidate. In their myopic zeal they are helping to elect Trump Republicans, many of whom are actual racists.

  2. I suppose the Oberlimpets have their own motivations for bankrupting the college with an endless legal
    struggle against the judgement. But I’ll bet they are also under pressure from the nation-wide DEI nomenklatura to contest the case to the bitter end. Final imposition of the judgement against Oberlin would seriously weaken the Diversicracy’s impunity, and chasten it for its routine mode of self-righteous vindictiveness and stupidity revealed in the Oberlin Emails.

  3. Since IUDs and Oral contraceptives may work by preventing implantation by a zygote or (very) early embryo, seems like the good people and prosecutors in Texass could expand their targets to prescribers, dispensers, and users of such killing machines. And thus more opportunity for capital punishment, which those same “pro-lifers” seem to want.

    1. Since IUDs and Oral contraceptives may work by preventing implantation by a zygote or (very) early embryo,

      Actually, we now know that they do not work by preventing implantation. They prevent ovulation. That said, people don’t understand much about reproductive biology, which is why in Hobby Lobby those were included as abortifacients. We need to push back on this hard. When people say ‘conception’, ask them what they mean – fertilization or implantation? And in either case, if you want to prevent unwanted pregnancies- IUDs are the way to go. More effective than male sterilization.

    2. Since IUDs and Oral contraceptives may work by preventing implantation by a zygote or (very) early embryo

      The Texas Thought Police will be after you for distributing knowledge of these things.

      And thus more opportunity for capital punishment, which those same “pro-lifers” seem to want.

      Oh of course. They’ll be sending out their “rangers” to enforce their dictats outside the state’s borders.
      I assume that Texas doesn’t take any notice of little issues like the accused being pregnant when carrying out their death sentence.

    1. I read, and thanks for the link to Rather’s thoughtful essay, but it didn’t give me any “hope” for TX.

      1. I’m not necessarily disagreeing with you, Mark, but I’m thinking of the growing urban centers, especially Austin, that are becoming more and more solidly Democratic. This gives me some hope. What do you think?

        1. Houston is another example of a HUGE solid D. city in the state of TX. Gerrymandering and other shenanigans allows Austin and Houston and Dallas, all D. strongholds, to wield less power than their populations should wield. Feudalism? It’s another example of ruling from the minority and the politics of TX are a minority wielding Right-wing realm. The hope is that a lot of people will vote. TX is red because most Texans don’t vote. That’s where the hope lies; that the “most” who are bolstered by sidelined minorities, start to vote in a way that reflects advocates who want to help them. I hope Texas women will come out in droves to vote D., since that is where the front line is. But I’m usually disappointed by political hopes. Dems have a hard time winning on abortion rights which are generally a favorable position, the GOP has always done well winning on restricting abortion, which is an unfavorable position. Politics is about finding, and then feeding, the stupid. Too bad that’s not a recipe for success.

  4. Pretty soon, they’ll start locking up women who have a miscarriage. It follows the logic…but maybe the charge will be manslaughter and not 2nd or 1st degree murder. The more religion gets a foothold in the machinations of justice, the less justice we’ll have.

    Did anyone see that Justice Roberts sided for the first time with the dissenting liberals when the 5 ultra-conservatives gutted the Clean Water Act via the shadow docket? Kagan wrote: “The docket becomes only another place for merits determinations- except made without full briefing and argument.” This country is so very screwed.

    1. Pretty soon, they’ll start locking up women who have a miscarriage.

      I thought that ship had already sailed. But I might be confusing Texas with some barbarian third-world theocracy.

      1. I think some Central American countries punish women who have miscarriages. It’s such a depressing, Draconian topic, I don’t research it much.

        1. I think may have also dawned on Texas that this type of state enforcement of anti-abortion laws would expose it to precisely the type of judicial scrutiny and enjoinment that its artfully drafted citizen-vigilante statute was designed to avoid.

  5. A Texas woman who was charged with murder on Friday for a self-induced abortion will have her charges dropped. “Yesterday afternoon, I reached out to counsel for Ms. Lizelle Herrera to advise him that my office will be filing a motion dismissing the indictment against Ms. Herrera,” Gocha Allen Ramirez, the district attorney for Starr, Jim Hogg, and Duval counties, said in a statement Sunday. “In reviewing applicable Texas law, it is clear that Ms. Herrera cannot and should not be prosecuted for the allegation against her.” Herrera was charged by the Starr County Sheriff’s Office on Friday for the “illegal” abortion, a procedure Texas has managed to ban after six weeks. “The issues surrounding this matter are clearly contentious, however based on Texas law and the facts presented, it is not a criminal matter,” Ramirez wrote Sunday.

  6. Some of you will remember the case of Jodi Shaw at Smith College from almost 2 years ago that Dr. Coyne wrote about. It became a national story as well.

    I had not heard anything about it in months, and today saw this in my facebook feed:

    “Jodi Shaw
    Update on my ongoing battle with Smith College (hereafter known as “The College”):
    1) In December 2021 I filed a federal suit against The College.
    2) The College responded to my claim, denying a vast majority of the allegations. Significantly, it did not file a motion to dismiss.
    3) We are now preparing for discovery and depositions.

    I am asking of the college the same things I have asked since the beginning, as follows:
    1) Issue a public apology to all staff it has harmed in its wholly disingenuous obsession with maintaining the *illusion* of a commitment to so-called “social justice” (including its response to the July 31, 2018 incident and the racially hostile environment that ensued as a result of said behavior).
    2) Meaningfully modify the policies and practices under question with the goal of transforming the current climate of fear and toxicity into one of connection, empathy, and compassion.
    And now I add one more thing:
    3) Make all staff it has harmed whole again.

    These are not unreasonable requests. It is my hope that The College will do the right thing.”

    1. “… transforming the current climate of fear and toxicity into one of connection, empathy, and compassion.”

      I would add an emphasis on fairness, proportionality and justice, ideas the SJWs have twisted out of all recognition. What the SJWs did was unjust, as well as unlawful. Compassion and empathy, sure, but “first do no harm”.

      “Make all staff it has harmed whole again. ”

      That seems rather a tall order, but I agree that starting with the notion of harms done is right. Then after recognizing the harms done – including to the students who deserve better examples to follow – focus on fixing the problem and never letting it happen again.

      Or maybe they fear that if they back down in this way they’ll be torn to shreds by SWJ media mobs elsewhere.

  7. I have read the decision in the Gibson case. While the Oberlin College administration acted badly, the decision also held that the College was culpable for the actions of the student Senate. I’m not sure it’s a good idea to hold colleges responsible for the actions of the student government. If they are responsible, there are two ways this could go: colleges could muzzle their student governments; or colleges could be held liable for things the college itself never approved of.

    As they say, IANAL, so perhaps I’ve misunderstood this. If a lawyer-reader reads the decision, perhaps they could weigh in.


  8. RE abortion: this Funny or Die video (2 mins) is pretty, uh, funny:
    Republicans, Get In My Vagina! [Let the Oval Office take care of Your oval office]

    1. Re. Gibson’s bakery: For years now (beginning before the incident that provoked the demonstrations), my wife and I have made a point of stopping in Oberlin twice each summer to walk our dogs (and give the cat some shady rest) on our cross country jaunts. We always buy some baked goods and coffee at Gibsons. From our experience, the staff is unfailingly friendly to us and to all customers–customers of various backgrounds. Going to Oberlin and to Gibsons is a treat.

    2. Funny ad. Personally, I wouldn’t have used pictures of Mitt Romney- an R who sometimes shows real courage. The only R senator to vote for T’s impeachment, and to both vote for and applaud KBJ at her SCOTUS confirmation. There were plenty- plenty- of pictures of more truly vile white male R’s to choose from.

      1. Pretty sure the video dates to the 2012 presidential election, when Mitt Romney was the GOP’s standard bearer.

        Were it made today, I suspect more odious abortion-rights’ opponents would be the object of the comedic ire.

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