Late April, police in Nebraska tip received say 17-year-old Celeste Burgess had given birth to a stillborn baby and buried the body. Officers soon learned that her mother, Jessica Burgess, and a friend had helped her with transportation and burial. Police have issued a report for concealment of the death of another person and false report. But in June, they also charged Jessica performing an abortion for her teenage daughter. The police had made the find after obtaining a warrant that obliged Meta to transfer their conversations on Facebook Messenger. The messages weren’t there encryptedturned out that the two had discussed obtaining and using abortion pills.
Digital records warrants are routine in police investigations, which makes sense given the amount of time we spend online. Technology giants have for years responded to valid court orders for specific information requested by law enforcement, although some companies have done more fighting for our privacy than others. Millions of people now use apps that encrypt their calls and messages, such as Signal and WhatsAppso no one can access their messages – not even the providers themselves.
The Nebraska case isn’t the first where police have used digital data to prosecute an abortion, nor will it be the last. While digital records are rarely the primary form of evidence, prosecutors use them to paint a picture in court; by showing messages sent to friends, web searches or emails from an online pharmacy. However, as in the Burgess case, it is often people close to the woman who are the first to notify the authorities – a doctor or nurse, a relative or a friend of a friend.
When the US Supreme Court overturned Roe v. Wade last summer, it ended the constitutional right to abortion. By doing so, it gave states the power to regulate abortion or ban the procedure altogether, sparking a wave of abortion bans across the country. At least 13 states now ban abortion with few or no exceptions. Georgia recently restored a ban after six weeks of pregnancy. And in many states, the fight over access to abortion still takes place in courtrooms.
A week after the Google ruling announced it would remove location data for visits to abortion clinics and other medical facilities. Electronic Borders Foundation said we need to review our privacy settings. The Digital Defense Fund encouraged us to use encrypted messaging apps. Some suggested we remove our period tracking apps. It may seem strange to pay so much attention to digital privacy in the context of our reproductive rights. But a look at prosecutions between 2011 and 2022 illustrates why these conversations are necessary.
In May 2011, Idaho police charged Jennie McCormack with inducing her own abortion. The 32-year-old could not afford legal action. Instead, she took pills she bought online. NPR reported that McCormack confided in a friend shortly after the abortion. It was this friend’s sister who informed the police. When officers arrived at her home, they found the fetus wrapped up on her back porch.
McCormack admitted to police that she herself had an abortion after taking a pack of five pills. At trial, she told the court that the drug was “FDA-approved,” “obtained over the Internet,” and “prescribed by a doctor.” Years later, an appeals court noted that “McCormack’s sister allegedly found unspecified abortion pills online, paid $200 for them and had them shipped to McCormack in Idaho.”
At the time, McCormack risked up to five years in prison. The case was in the end turned down.
In March 2015, Indiana sentenced Purvi Patel to 20 years in prison for dependent neglect and feticide. Two years earlier, Patel had gone to the hospital with a hemorrhage after giving birth to a child at home. She first told the medical staff that she was ten to twelve weeks pregnant. But when questioned by two doctors, he admitted that he had given birth and said the baby was stillborn.
Patel told doctors she put the body in a paper bag and placed it in a dumpster behind a Target store, not far from her family’s restaurant. The hospital alerted the police, who searched the area and recovered the bag. A doctor who participated in the search said that “the baby was cold and lifeless” but was “an otherwise normal, healthy looking baby”.
Court documents show that the police have obtained a search warrant for Patel’s phone. An officer with “training in examining electronic devices” downloaded her text messages. In reviewing the records, police found that she had discussed her abortion with “at least one friend”. Patel also said she had brought and taken abortion pills from Hong Kong.
An Indiana appeals court overturned the feticide conviction in July 2016. The Court noted that when searching Patel’s iPad, “police found an email from InternationalDrugMart.com customer service.” The email confirmed that Patel ordered mifepristone and misoprostol for $72. A detective ordered the same pills, presumably to confirm it was possible. Police also discovered that Patel had visited a website titled “Abortion After Twelve Weeks.”
The court documents do not state what type of phone Patel had or how police accessed her messages. But the messages were at least three months old, suggesting she probably didn’t delete the texts or the email from the online pharmacy.
Indiana’s Attorney General private not appeal against the court’s decision. In September 2016, Patel was again sentenced to 18 months for child neglect, less time than she had already served. The judge then ordered Patel’s immediate release.
In April 2015, Arkansas police arrested Anne Bynum after she gave birth to a stillborn child at home. She was charged with concealing the birth and abuse of a corpse. The state also accused her friend, Karen Collins, of performing an abortion.
Bynum, who already had one child and worked a minimum wage job, never told her parents about the pregnancy. When her pregnancy became difficult to conceal, she took medication to induce labor.
In a video interview, Bynum said she delivered the baby at home alone, in the middle of the night. “She was just beautiful. Really beautiful. But close your eyes, close your mouth. Complete silence.” Bynum wrapped up the remains and went to bed. The next day, she drove to the emergency room with the remains in the front passenger seat. Bynum said she “gave birth last night, but she didn’t make it.” Medical personnel determined it was a stillbirth.
When Bynum was released from the hospital days later, she was arrested on her way home. The sheriff handcuffed her and put her in the back of the police car. Bynum’s trial was short, just two days of testimony and a few minutes of jury deliberation. The judge convicted her to six years in prison. An appeals court reversed the conviction in December 2018.
Who exactly informed the police remains unknown. The appeals court noted that “Bynum told friends, her lawyers and her priest about the pregnancy and about her intention to give the child up for adoption when it was born.” On the morning after she gave birth, Bynum texted her lawyer “advising her to see a doctor.” The lawyer also called a funeral home and “was advised to have Bynum take the fetal remains to the hospital.”
It is unclear whether Bynum shared the texts himself, or whether the police recovered them in some other way.
In January 2018, Mississippi charged Latice Fisher with murder for the death of her newborn the year before. The Washington Post reported that when paramedics arrived at her home, they found “a baby in the toilet, lifeless and blue, the umbilical cord still attached.” The baby was pronounced dead at the hospital. Fisher initially said she did not know she was pregnant, but later admitted that she had known about the pregnancy for at least a month. She also admitted that she had searched the internet for how to miscarry.
Fisher reportedly “voluntarily surrendered” her iPhone to police. Court documents show her phone’s “memory and data were then downloaded, including but not limited to Fisher’s past internet activity.” In reviewing that data, investigators learned that Fisher had been researching “buy abortion pills, mifeprison.” [sic] online, misoprostol online’ and ‘buy misoprostol abortion pill online’. Fisher had also “apparently bought misoprostol right after these searches.” Another Court documents show that police also searched her husband’s phone.
While there is no evidence that Fisher took the pills, prosecutors used her digital records to show that she intended to terminate her pregnancy. The murder charge was finally settled turned down.
Tech companies may not have much of a way to handle police search warrants, even if the investigations involve abortion. But companies can decide how much digital data they collect about people and how long they keep that information. They also get to decide whether to offer end-to-end encryption, which gives people more privacy for all their messages. After the Russian invasion of Ukraine last year, Meta announced that it is making encrypted one-on-one chats on Instagram available to adults in the two countries. And while Elon Musk said Twitter should encrypt direct messages end-to-end before acquiring the company, it is not clear whether this is really going to happen.
Last year, reporters found that Facebook and anti-abortion clinics collect sensitive information about would-be patients. The format too reported that Hey Jane, an online provider of abortion pills, used a series of online trackers that tracked users across the internet – until the journalists contacted the practice. More recently, ProPublica found it nine pharmacies that sell abortion pills also share sensitive data with Google and other third parties. All nine were recommended by Plan C, which provides information on how to get abortion pills by mail. No one responded to ProPublica’s request for comment.
In Abortion every daypublisher Jessica Valenti remembers us that “if you’re white, have money, and have the ability to travel to a state where abortion is legal—you’ll have it much easier than people from marginalized communities.” Everyone has the right to access reproductive health care. If the past decade is any indication, we will all be needed to protect essential abortion rights, from doctors, nurses and lawyers to legislators, software engineers and voters.
Sarah Mitchell-Weed contributed research.