Liz Jarit, a senior staff attorney with the ACLU Abortion Criminal Defense Initiative and one of Gonzalez’s lawyers, says that the case epitomizes the problem with precedents that shield public officials who break the law. “When you have basically admitted constitutional violations and unchecked power—flagrant abuse of that power—and a court or a doctrine that shields people from any accountability, that’s a real problem,” she told me. Jarit said discovery will move forward against the county, and that Gonzalez’s legal team is still weighing its options for potential appeals.
Another attorney for Gonzalez, Cecilia Garza, underscored that qualified immunity allows bad actors to get away with things they know are illegal. “What’s hardest for Lizelle is she knows that they did wrong. They know that they did wrong. The judge has indicated in the order that they did wrong,” Garza told a local news outlet. “But they get a pass because of this legal doctrine that, I believe, exists to protect public officials.”
Wrongful abortion arrests seem to happen with increasing frequency these days. Last month, a Georgia district attorney called the malice murder charge of a woman who’d taken abortion pills problematic “on a factual and merit basis” because state legal precedents prohibit such a prosecution. The district attorney said local police didn’t consult with his office before arresting the woman, but he also told a judge that although he wasn’t planning to present the charge to a grand jury, he said he wasn’t prepared to drop it, either. The judge set a symbolic $1 bond due to his own doubts that the state could secure a conviction.
A Kentucky prosecutor admitted in January that her office made a mistake when it charged a woman who used abortion pills with fetal homicide, despite an explicit exemption in the law for pregnant people. The prosecutor even suggested that she might not have read the statute closely enough before presenting the charge to the grand jury. That charge got dropped, but the woman is facing three other charges: concealing a birth, abuse of a corpse, and tampering with physical evidence.
These women, too, had their names and faces plastered online for crimes they didn’t commit. Under a capacious reading of qualified immunity, none of the people responsible could be sued for their actions.