Texas is prosecuting a midwife for abortion. Its case is already falling apart.

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Since the fall of abortion rights, no abortion provider has been convicted of violating a state ban. Proceedings underway in Texas might soon change that. Last March, Ken Paxton, Texas’ Republican attorney general, filed civil and criminal charges against a Houston midwife, accusing her of performing illegal abortions and practicing medicine without a license. Texas law permits penalties of up to life in prison for performing abortions. The midwife, Maria Margarita Rojas, has responded that the state just can’t prove their case. That’s the argument she made to a Texas court this week as she appealed an order that forced the closure of three clinics where she worked while the litigation continues. This appeal concerns the civil case against Rojas. The criminal case against her is also ongoing, but the questions of inadequate proof that were front and center in Rojas’ civil appeal will play a significant role there too.

Even if an appeals court rules in her favor, Rojas likely won’t be able to reopen the three clinics because of the conditions of her bond, which prevent from her being within a certain distance of the facilities, and because of the suspension of her midwifery license. It’s also possible that the three judges on Texas’ 15th Court of Appeals won’t say that much about the caliber of the state’s evidence, instead focusing its on procedural technicalities or constitutional questions. But the hearing was a first look at whether Texas can prove its case against Rojas. And so far, the state’s case looks far from a slam dunk.

The most obvious obstacles to successful abortion prosecutions are political. Polling has shown consistent support for abortion rights, and even more so since the Supreme Court overturned Roe v. Wade. Republicans have mostly worked to draw attention away from an issue that can hurt them at the polls. The Trump administration has played for time, supposedly launching a new study on the safety of the abortion pill mifepristone and seeking delays in court. All of this, Trump officials say, could take years, and certainly will take until after the midterms. A high-profile conviction could bring attention to the issue that some Republicans don’t want, especially if a defendant can tell a sympathetic story about the care they provide.

But the Rojas case is reminder that it just isn’t that easy to prove an abortion has occurred. That has been true throughout the history of abortion criminalization in the United States.

In the 19th century, as state criminal bans on abortion spread across the country, prosecutors struggled to find enough evidence for a conviction. It wasn’t always straightforward to distinguish an abortion from a miscarriage, or even to prove that a patient had been pregnant (some states didn’t even require proof of it). Even if there was evidence of an intentional abortion, juries couldn’t always tell if that procedure was meant to preserve a patient’s life.

A conviction was easier if a patient died. Then, prosecutors could rely on autopsy evidence, or even a woman’s dying words. But in a meaningful number of cases, defendants seem to have walked because there just wasn’t enough evidence of what had happened.

The obstacles to conviction aren’t any less daunting today. Consider what’s happening in Rojas’ case. It’s been hard for prosecutors to know when abortions might be occurring in the first place, especially given the availability of telehealth procedures. This case came to the attention of the Texas attorney general because of an anonymous tip. Rojas might have been an attractive target because she is a midwife. Historically, midwives had a harder time in abortion prosecutions than did licensed physicians, and Paxton might be hoping that the same is true today.  But one of the charges she faces—that she was practicing medicine without a license—is complicated by Rojas’s own version of events, which centers on the claim that she worked with advanced practice nurse practitioners to provide telehealth services and was a licensed midwife herself.

And it won’t be easy for the state to prove that Rojas offered abortions. The state is relying on a witness who claimed that she was prescribed a low-dose of misoprostol, a drug commonly used as part of the two-pill protocol used in a majority of abortions nationwide. Investigators also recovered misoprostol when they raided Rojas’s place of business.

But simply possessing or dispensing misoprostol can’t tell prosecutors all that much. The drug is widely used to prevent ulcers caused by taking NSAIDs like ibuprofen, manage early pregnancy loss, induce labor, or address hemorrhage after childbirth.  Rojas operated a birthing center. Her attorneys stress that prosecutors can’t tell if she was using misoprostol to treat patients who had given birth or experienced miscarriage. And there were no supposedly telltale signs of abortion services present at her clinics either, such as tools used for surgical abortion or even mifepristone, a drug with multiple off-label uses that is approved by the Food and Drug Administration only for the termination of pregnancy.

It’s not clear that this evidence this will be enough to secure a conviction. In the past, prosecutors sometimes struggled with similar cases. Even if a defendant did have a drug used in abortion, prosecutors often needed additional proof, such as evidence that a person had been convicted of offering abortions in the past, or was widely recognized in the community as an abortion provider. The reason was straightforward: These medications were and are used in obstetrics and gynecology for other reasons.

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All of these obstacles to a conviction make the stakes of the Rojas trial that much higher. States know they won’t be able to find most people accessing or distributing abortion pills. It’s not clear either that they will be able to pursue physicians mailing pills from states that protect reproductive rights into ban jurisdictions. But prosecutors like Paxton hope that by making an example of someone like Rojas, they can scare others into compliance.

Even charges like the ones Rojas faces can be devastating, whether or not a jury ever convicts. Clinics where she worked have been forced to close and her midwifery license has been suspended. She had to pay a $1.6 million bond and faces years in prison. The risk of similar consequences might be enough to frighten off many providers.

If Rojas is convicted, the impact will be even greater. It might give pause not only to those who might offer abortions but anyone who might use misoprostol to manage miscarriage, hemorrhage, or any other complication. Patients in many Texas counties already lack access to maternity care. Cases like this one are likely to exacerbate the problem.

Prosecutors in places like Texas know they won’t be able to detect the vast majority of abortions. But by making an example of people like Maria Rojas, prosecutors hope that they won’t have to.

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