The Flores Case
By Eleanor J. Bader
Z Magazine
September 2005 In the early 1970s Peggy Romberg, CEO of the Women Health and Family Planning Association of Texas, heard about women who threw themselves down stairs, douched with lye, and drank bottles of whiskey to induce a miscarriage. Then Roe v. Wade was decided, abortion clinics opened, and Romberg shoved these stories to the back of her mind until 2004 when she heard about Erica Basoria and Gerardo Flores. At the time, both Basoria and Flores were high school students in Lufkin, Texas, a quiet town of 32,000. After dating for a year, Basoria, then 17, became pregnant. According to Ryan Deaton, Flores’s lawyer, "Right away, her mom, sister, and sister-in-law approached her and talked about abortion. There was a time she considered it. Then the Flores family stepped in and said, 'No, live with us. Have the baby.' At some point after Erica moved in with them she went back to the doctor and someone in the office put a note in her file stating that she did not believe in abortion." An affidavit presented in court explains that as Basoria’s condition became apparent, her thinking changed. "When I was four months pregnant I began to show and at that time I decided that I should have gotten an abortion," the document states. She asked her doctor if she could still terminate the pregnancy. Although the cut-off in Texas is 23 weeks, Basoria’s ob-gyn said "she was too far along," Deaton reports. "This was not true." While Basoria remains unavailable to the press, news accounts and court reports reveal that as time went on she became increasingly adamant about ending the pregnancy and took matters into her own hands, punching herself in the stomach and running long distances. When she did not spontaneously abort from these tactics, she enlisted Flores’s help. He complied, repeatedly stomping on her belly. According to the Houston Press, on the evening of May 6, 2004 Basoria miscarried. Paramedics were called and retrieved two fetuses — Basoria had been carrying twins — from the toilet. Forensic pathologist Dr. Tommy J. Brown subsequently did an autopsy and listed blunt force trauma as the cause of the embryos’ death. Basoria was taken to a local hospital where personnel noticed bruises on her arms and stomach and called police. During questioning, Basoria told the officers what she and Flores had done. Flores confirmed the story and was charged with two counts of capital murder, a crime punishable by death. In June 2005 Flores, 19, was found guilty and sentenced to life in prison. Basoria was not charged since procuring an abortion, no matter the means, is not illegal. Peggy Romberg calls the case "a tragedy. These were young kids in trouble. We, as a society, failed them. We don’t provide teenagers with education about sexuality, pregnancy, or disease prevention. We make confidential access to contraception difficult. We’ve created an environment where unintended pregnancy is becoming more prevalent among teens. The lack of information in Texas is astounding. Erica and Gerardo found themselves in crisis. Why didn’t they get the education or services they needed to find a better way out of this?" Texas has the second highest rate of unplanned teen pregnancy in the U.S. The reasons are obvious. Fewer than 20 of the state’s 254 counties have an abortion provider. Abstinence is the only message public school students hear and the textbook used in sex education classes does not mention contraception or pregnancy. In addition, a slew of restrictions have been imposed. Medicaid does not pay for abortions; there is a 24-hour waiting period between scheduling the surgery and having it; mandatory "counseling" links the procedure with above-average rates of suicide, infertility, and breast cancer; minors must get their parents written consent or see a judge pre-abortion; all procedures performed after the 16th week must take place in a hospital or ambulatory surgery center, increasing the cost. What’s more, the political climate in Texas is so virulently anti-choice that in 2003 lawmakers changed the definition of person-hood in the penal and civil codes. Governor Rick Perry approved the shift, trumpeting the fact that a fetus is now considered "an individual at every stage of gestation, from fertilization to birth." This definition gave rise to the Texas Fetal Protection Law, which makes the injury or death of a fetus during the commission of a crime a capital offense; Geraldo Flores was arrested and convicted under this statute. "We opposed this legislation," says Sarah Wheat, Director of Public Affairs at Texas NARAL. "The groups that were pushing for it were all anti-choice. The bill was promoted to protect women from violence, but the violence-against-women groups were not involved." Almost immediately after the Fetal Protection Law’s passage, she continues, a zealous district attorney in Potter County sent area doctors a letter requiring them to report any pregnant woman suspected of drug or alcohol abuse. Although the attorney general eventually said that this was beyond the scope of the regulation, 15 women were arrested and one was convicted and remains in jail. "The result was to frighten women from seeking prenatal care," Wheat says. "It did nothing to safeguard them." Despite the valiant efforts of NARAL, the Religious Coalition for Reproductive Choice, the Women’s Health and Family Planning Association, and other groups, fetal protection laws are enforced in 32 states. Similarly, the Unborn Victims of Violence Act punishes anyone who kills or damages an embryo during the commission of a federal crime. Such laws give Flores the distinction of being the first person found guilty of capital murder where the victim(s) had yet to be born. Attorney Ryan Deaton has submitted a Notice of Appeal to the District Court in Beaumont and is committed to taking the case to the Supreme Court, if necessary. Despite his efforts, the horror of the situation haunts Deaton. "The appeals could take years," he admits. "Gerardo has a great family and a lot of support, but he is not doing well. Erica is a very sad person. She lost the love of her life, the person, if it were up to her, she’d be with forever. I am here for Gerardo, but it’s tragic. People should know that fetal protection laws allow situations like this to happen." -------------------------------
Eleanor Bader is a freelance writer and co-author of Targets of Hatred.
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