The mother sent a Facebook message to her daughter days before the teenager’s abortion, the police say. “Hey we can get the show on the road the stuff came in,” she wrote in April, adding, “The 1 pill stops the hormones and then you gotta wait 24 hour 2 take the other.”
The teenager used the pills to terminate her pregnancy at home two days later, according to police records.
Now, both mother and daughter face criminal charges. Their Facebook messages, obtained by the police through a warrant, have become key evidence in a rare prosecution over abortion.
The circumstances of the case are hardly typical. According to the police, the teenager’s medication-induced abortion occurred at the beginning of the third trimester — much later than an overwhelming majority of abortions in the United States, which happen in the first 13 weeks. Mother and daughter buried the fetal remains themselves, the police say.
All of this took place, according to the police timeline, two months before the Supreme Court overturned Roe v. Wade in June, which removed the constitutional right to abortion. The charges against the women use Nebraska laws that were in place when Roe was still in effect, including a state ban on most abortions after 20 weeks.
Still, the case raises questions about how abortion-related prosecutions will unfold in a constantly shifting legal landscape, in which enforcement of new bans is already dividing the authorities. It has inflamed debate over abortion restrictions in a post-Roe era, fueling fears that women, and those who help them, will be prosecuted for abortions, and that their private communications will be used against them.
The teenager’s use of abortion pills so late in pregnancy — long after the 10 weeks permitted by the Food and Drug Administration — has also put renewed focus on mail-order medication, which has come to be seen as a workaround as abortion restrictions tighten and clinics close.
Use of the abortion pill regimen is considered safest in early pregnancy; its efficacy declines as the pregnancy advances. According to a calculation based on the due date provided by the police, the teenager was almost 30 weeks pregnant when she terminated the pregnancy — past the 23 to 24 weeks generally accepted as the point of viability, when a fetus would most likely be able to live outside the womb.
The mother in the case, Jessica Burgess, was charged with two felonies under Nebraska’s abortion law: performing an abortion without a medical license, and performing or attempting to abort a fetus more than 20 weeks after conception. The charges carry a sentence of up to two years in prison.
Experts said neither charge could be applied to a woman who terminates her own pregnancy; Ms. Burgess’s daughter has not been charged with violating abortion law.
But both women face charges under laws independent of the state’s abortion statutes: mishandling human remains, concealing a death and false reporting. The daughter, who was 17 at the time, is being tried as an adult, meaning her case will not be shielded by privacy rules in juvenile court, and she will face stiffer sentencing if convicted.
Ms. Burgess did not respond to the charges in court; a not-guilty plea was entered on her behalf. Her daughter has pleaded not guilty.
Prosecutions of women who have abortions have been rare, in part because terminating pregnancies has until recently been constitutionally protected, and because the anti-abortion movement has generally focused on prosecuting providers and steered away from punishing women.
Read More on Abortion Issues in America
- Sensing a Shift: Since Roe v. Wade was overturned, Democrats have spent nearly eight times as much on abortion-related ads as Republicans have, with Democratic strategists believing the issue has radically reshaped the 2022 landscape.
- A First: Indiana became the first state to draw up and approve a near-total abortion ban in the post-Roe era. Some major companies in the state, including Eli Lilly, have criticized the law.
- An Uneasy Champion: President Biden, a practicing Catholic, is being called to lead a fight for abortion rights that he has sidestepped for decades. Advocates wonder if he’s up to the task.
- Safe Havens: After Roe, conservatives are seeking to expand ways that allow women to give up newborns, such as baby drop boxes. But for many experts in adoption and women’s health, they are hardly a solution.
But prosecutors have long made creative use of other laws — including those governing child abuse, feticide and improper disposal of human remains — to criminalize both miscarriages and abortions that occur outside of clinical settings, experts say.
From 2006 to 2020, more than 1,300 women were prosecuted or faced mandatory medical intervention for what the authorities said was behavior risky to their pregnancies, according to National Advocates for Pregnant Women.
Over the last two decades, at least 61 investigations have been initiated against pregnant women or individuals who aided them in self-managed abortions — defined as abortions that occur outside a clinical setting, including those that use pills, herbs, physical force or other means — according to an abortion rights group that studied the cases. Most of them were based on statutes not related to abortion.
“While we’ve seen local prosecutors prosecute people for managing their own abortions in the past, without Roe in place it’s going to become more common,” said Elizabeth Nash, the state policy analyst for the Guttmacher Institute, a research group that supports abortion rights.
Nebraska Right to Life, an anti-abortion group, commended the prosecutor for enforcing Nebraska’s 20-week law. The executive director, Sandy Danek, said in an interview that accountability should extend to providers that mail abortion pills to states that, like Nebraska, require in-person physician oversight of medication abortions.
“This disturbing act may become more commonplace as the abortion industry continues to promote the do-it-yourself abortion where there’s no medical oversight for risks and complications,” she said.
Katie Glenn, state policy director for Susan B. Anthony Pro-Life America, an anti-abortion group, agreed. “Our consistent position has been that the woman that the abortion is performed on should never be criminalized,” she said.
Since the Supreme Court put abortion policy back under state control, local prosecutors have split on enforcement. Liberal prosecutors in conservative states have pledged not to prosecute under new abortion laws; conservative lawmakers have pushed back.
The investigation of the Burgesses did not begin as an abortion case. In late April, the police in Norfolk, Neb., a two-hour drive northwest of Omaha, began looking into “concerns” that a 17-year-old had given birth prematurely to a stillborn baby and that she and her mother had buried it, according to court documents. Detective Ben McBride subpoenaed medical records from early March showing that the teenager had been pregnant with a due date of July 3.
When he interviewed the Burgesses, they said the baby had been stillborn in the bathtub and showed him where they had buried it.
The detective said he later learned that the women had actually buried the remains and then dug them up, drove them north of town and buried them again. Finally, they moved the remains a third time. At some point, a man who helped them told the police, the women tried to burn the fetus. The remains were exhumed and showed signs of “thermal injuries,” the detective wrote.
In cases where the police become involved in a miscarriage or stillbirth, often the biggest question is whether the baby was born alive. If so, the woman involved can face more serious charges. In the Burgess case, the final autopsy listed the cause of death as undetermined. “The findings were consistent with the fetus being stillborn,” but the fetus had been put in a plastic bag, raising the possibility of suffocation, the detective wrote.
Jessica Burgess’s lawyer declined to comment on the case. The public defender’s office, which is representing the daughter, and the prosecutor’s office did not respond to requests for comment.
The county prosecutor, Joseph Smith, a Republican, told The Lincoln Journal Star that he had never filed charges connected to performing an illegal abortion in his 32 years on the job.
The investigation might have ended there, but when the detective asked the daughter for the exact date the pregnancy ended, she consulted her Facebook messages.
The Burgesses were charged with concealing a stillbirth, but the detective went on to obtain a warrant of all of the mother and daughter’s correspondence on Facebook Messenger.
He found evidence of a medically induced abortion, writing that the daughter “talks about how she can’t wait to get that ‘thing’ out of her body.”
In an exchange dated April 20, the daughter writes, “Remember we burn the evidence.” The mother replies, “Yep.”
The Facebook message time stamps suggest that the pills took at least three weeks to arrive in the mail, raising the possibility that the family intended to terminate the pregnancy earlier. The mother says the order that arrived on April 20 was placed in March.
The nearest abortion clinic is about 60 miles away, though it is unknown whether the Burgesses sought care at a clinic.
The cost of mail-order abortion pills varies widely and can be heavily subsidized for those able to navigate the system. But one expert said they would normally cost at least $200. In court papers filed after her arrest, the mother said she had only $400 in her bank account and could not afford a lawyer. “I lost my job due to this situation,” she wrote.
The Nebraska law that limits abortion after 20 weeks from conception passed in 2010 and targeted a provider of late-term abortions who then moved that portion of his practice out of state, Ms. Nash of the Guttmacher Institute said. In many states, such restrictions did not hold up under court scrutiny because Roe prohibited pre-viability bans, but the Nebraska law was never challenged, she said. Recently, efforts to enact a 12-week ban in Nebraska stalled.
The abortion charges against Ms. Burgess were brought only after the Facebook evidence was turned over, and after a friend of the daughter came forward to say she had seen the teenager take the first of two pills. The friend declined a request for comment.
The news caused an outcry against Facebook, which had vowed to protect its own employees’ access to abortions. Privacy experts have warned that prosecutors could serve warrants to tech companies requesting location data, messages or search history to help corroborate whether someone had or aided an abortion. They have also warned that apps, such as those used by many women to track their menstrual cycles, could be used to reveal personal medical histories.
But tech companies may have little choice but to comply with court orders. Meta, the parent company of Facebook, said the company “received valid legal warrants from local law enforcement on June 7, before the Supreme Court’s decision,” on abortion. The warrants did not mention abortion, the company said, but noted that the police were investigating “the alleged illegal burning and burial of a stillborn infant.”
Dana Sussman, the acting executive director of the National Advocates for Pregnant Women, said that was not an uncommon approach. “What we have been saying consistently is that it will almost never say ‘abortion’ in the search warrant that you receive,” she said, adding, “It’s feticide charges, it’s manslaughter charges, it’s murder charges, child abuse, felony child neglect.”
Meta has said that it fights against requests it believes are invalid or too broad. According to a transparency report published by the company, covering the second half of 2021, the company gave investigators information in about 88 percent of the 59,996 times when the government requested data.
Meta has announced that it is working on the global rollout of end-to-end encrypted messages by 2023, which would help ensure that no outside party, including Meta, could access message contents.
Before Roe v. Wade legalized abortion in 1973, a majority of prosecutions focused on providers. In more recent times, pregnancy loss has been criminalized in a variety of ways.
In a case from 2010 in Iowa, a woman who fell down the stairs in her second trimester told hospital staff members that she had considered an abortion or adoption earlier in her pregnancy. She was arrested and detained. In Utah in 2004, a woman pleaded guilty to child endangerment after one of her twins was stillborn. She had declined a recommendation to have a C-section. In Texas in April, a woman was briefly charged with murder in connection with a “self-induced abortion”; the charges were dismissed as a mistake after a public outcry.
A recent report by the National Association of Criminal Defense Lawyers notes that even if new laws do not target abortion recipients, they could still face conspiracy and accomplice charges that generally apply to any crime.
An advocacy group called If/When/How: Lawyering for Reproductive Justice has analyzed the 61 cases in 26 states that dealt specifically with self-managed abortions.
Forty-five percent of the cases were first reported by medical providers or social workers, but another 25 percent were reported by friends, parents or intimate partners.