Shefali Luthra
Health journalist, 19
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A Nebraska case involving a mother who illegally gave her daughter an abortion pill has drawn attention to the role digital information and communication could play in abortion lawsuits.
In April 2022, Celeste Burgess, then 17, used drugs to terminate a pregnancy when she was past 20 weeks, which was the threshold in the state at the time. Facebook messages between her and her mother, Jessica Burgess, showed them how to get the drug, which Jessica said she acquired for her daughter. Celeste and Jessica told the court that after delivering the stillborn fetus, they burned and buried it.
Both mother and daughter pleaded guilty to felony charges. Celeste, now 18, was sentenced to 90 days in jail on Thursday. Jessica will be sentenced in September.
Although the incident took place before the cancellation of Roe v. Wade, the case became the first abortion-related lawsuit since federal abortion protections stopped relying on online consumer data. The outcome of the case could offer potential insight into how people’s digital fingerprints could be used to enforce abortion laws.
“It’s not out there yet,” said Laurie Sobel, associate director of women’s health policy for KFF, a nonpartisan health policy research organization. “It is not only dependent on the state. It’s very local. That’s what prosecutors would like to try to do.
State abortion bans generally do not target the pregnant person – only Nevada and South Carolina have active laws criminalizing the pregnant person for taking drugs to terminate a pregnancy. Yet prosecutors can use other laws like “wrongful death” statutes, targeting friends or family members who might “aid or abet” someone in pursuing an abortion — which is illegal in some states — or, as in the case of Nebraska, rely on laws that criminalize unlawful concealment of a corpse. Celeste and Jessica to plead guilty charges related to the cremation and burial of the foetus; Jessica also pleaded guilty to misrepresentation and performing an abortion after 20 weeks.
In the past year, only two cases have used unprotected consumer data to sue people related to abortion: the Nebraska case and another from Texas, in which a man sued his ex-wife’s friends, claiming they helped her get a medical abortion and that it violated the state’s wrongful death law. In this case, who will go to trial by jury next year, the allegation is based on text messages the man allegedly found on his ex-wife’s phone. The women being sued filed a counterclaim.
Lawsuits are still rare, in part because abortion opponents fear the political backlash of targeting pregnant women rather than medical providers, said Mary Ziegler, a law professor at the University of California, Davis, who studies the anti-abortion movement. For decades, the movement focused instead on prosecuting providers, aiming to frame restrictions on the procedure as an effort to protect pregnant women.
But efforts to go after individual patients or their personal support networks could become more common over time, especially as anti-abortion groups grow increasingly frustrated with people who find ways to circumvent state bans, such as ordering drugs online from services such as the European organization Aid Access, or traveling out of state to have abortions.
If that happens, Ziegler said, Internet user data could become a useful tool for law enforcement. But the amount of information online that exists means officials are more likely to search records if they have a specific reason, such as a suggestion from another party that the person involved may have requested an abortion. one way or another.
“It’s not difficult for law enforcement to know who to watch and where to look,” she said. “But if you’re in law enforcement and you’re tasked with investigating your entire childbearing age to see if they’re ordering something off the internet or leaving the state, that’s a task. Herculean. Even with tons of consumer data, you need to tip.”
Internet user data is relatively unprotected. Facebook owner Meta has already agree with the vast majority government requests — including those from law enforcement — for user information, according to company reports. This information may include unencrypted messages sent on its Messenger platform, to which the company has access. Google also complies with most government data requests; this company’s records may include access to people’s search history and location data if they visit an abortion clinic.
And this kind of digital information is just the beginning, say some digital privacy experts. The amount of non-medical information stored in people’s internet fingerprints and on their phones could also be used in future abortion lawsuits, several researchers have said.
“It’s impossible to know what kinds of cases are on the horizon,” said Aditi Ramesh, policy manager for watchdog organization Accountable Tech. “There are many, many data points that we may not even be aware of that law enforcement authorities may be able to subpoena and use.
There are ways for users to circumvent companies that may retain user data, at least to some extent: communicate over encrypted email systems, use browser extensions that block internet trackers, search for material related to abortion in private mode and, if connecting to the internet from a mobile phone, be sure to disable location services in an app if possible. It can be useful to use a virtual private network as another way to limit the extent to which phones track a person’s location or search history, said Jordan Wrigley, a researcher at the Future of Privacy Forum, a DC-based think tank. But not everyone may know how to navigate those options, she added.
“Trying to hide data about one’s health data and how to use it is impractical and can be expensive and requires a high-level understanding of these tools,” Wrigley said.
Tech companies that comply with abortion-related lawsuits and data requests can face internal backlash, noted Jordan Famularo, a cybersecurity specialist at the University of California, Berkeley. She pointed in particular to a case earlier this year, when a group of Meta shareholders hurry for business to assess how it could further protect consumer data related to reproductive health, specifically citing the Nebraska case. Their proposal was rejected at a meeting of shareholders of the company.
Currently, there is little legal protection for people who use internet platforms such as Google or Facebook and seek abortions. Washington State passed a law to protect consumer data regarding reproductive health, including patient search and location history. Similar legislation has been introduced in California, and lawmakers in Massachusetts and New York are also considering measures that would strengthen consumer data protections.
But abortion is legal in all three states, and similar protections don’t exist in the larger states that have banned abortion. Congressional Democrats introduced a bill it would limit what reproductive health information technology companies can retain or disclose, but those protections are unlikely to be enacted as long as Republicans control the U.S. House of Representatives.
For now, even the threat of being reported has another effect, Sobel said: isolating people seeking abortions from support networks they might otherwise have turned to.
“People stop talking to their neighbors about their plans,” she said. “Laws can be effective without any enforcement.”
