How US police use digital data to prosecute abortions
In late April, police in Nebraska received a tip saying 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. The police issued citations for concealing the death of another person and false reporting. But in June, they also charged Jessica with providing an abortion for her teenage daughter. Police had made the discovery after obtaining a warrant that required Meta to hand over their conversations on Facebook Messenger. The messages, which were not encrypted, showed the two had discussed obtaining and using abortion pills.
Warrants for digital data are routine in police investigations, which makes sense, given how much time we spend online. Technology giants have for years responded to valid court orders for specific information sought by law enforcement, though some companies have done more to fight for our privacy than others. Millions of people now use apps that encrypt their calls and messages, like Signal and WhatsApp, so that no one can access their messages -- not even the providers themselves.
The case in Nebraska is not the first in which police have used digital data to prosecute an abortion, and it won't be the last. While digital data is rarely the main form of evidence, prosecutors use it to paint a picture in court; by showing messages sent to friends, internet searches or emails from an online pharmacy. As in the Burgess case, however, it's often people around the women who first notify the authorities -- a doctor or nurse, a family member or a friend of a friend.
When the U.S. Supreme Court overturned Roe v. Wade last summer, it ended the constitutional right to abortion. In doing so, it gave states the power to regulate abortion or ban the procedure altogether, triggering a wave of abortion bans nationwide. At least 13 states now ban abortion with few or no exceptions. Georgia recently reinstated a ban after six weeks of pregnancy. And in many states, the fight over abortion access is still taking place in courtrooms.
A week after the ruling, Google announced it would delete location data for visits to abortion clinics and other medical facilities. The Electronic Frontier Foundation said we should review our privacy settings. The Digital Defense Fund encouraged us to use encrypted messaging apps. Some suggested that we delete our period tracking apps. It may seem odd to dedicate 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 needed.
In May 2011, police in Idaho charged Jennie McCormack with inducing her own abortion. The 32-year-old couldn't afford a legal procedure. Instead, she took pills purchased online. NPR reported that McCormack confided in a friend shortly after the abortion. It was this friend's sister who told the police. When officers arrived at her home, they found the fetus wrapped up on her back porch.
McCormack admitted to the police that she self-induced an abortion after ingesting a pack of five pills. At trial, she told the court that the medication was "FDA-approved," "procured through the internet" and "prescribed by a physician." 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 faced up to five years in prison. The case was eventually dismissed.
In March 2015, Indiana sentenced Purvi Patel to 20 years in prison for neglect of a dependent and feticide. Two years earlier, Patel had gone to the hospital with bleeding after delivering a child at home. She first told the medical staff that she had been 10 to 10 weeks pregnant. But when questioned by two doctors, she admitted to giving birth and said the baby was stillborn.
Patel told the doctors she had 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 notified the police, who searched the area and recovered the bag. A doctor who participated in the search said "the baby was cold and lifeless" but "was an otherwise normal, healthy appearing baby."
Court documents show that police obtained a search warrant for Patel's phone. An officer with "training in examining electronic devices" downloaded her text messages. In reviewing the data, the police found that she had discussed her abortion with "at least one friend." Patel had also shared that she'd obtained and taken abortion pills from Hong Kong.
An Indiana appeals court overturned the feticide conviction in July 2016. The court noted that in searching Patel's iPad, "police found a customer service email from InternationalDrugMart.com." The email confirmed that Patel had ordered mifepristone and misoprostol for $72. A detective ordered the same pills, presumably to confirm that it was possible to do so. Police also found Patel had visited a website titled "Abortion after Twelve Weeks."
The court documents do not mention the type of phone Patel had or how police gained access to her messages. But the messages were at least three months old, suggesting that she likely did not delete the texts or the email from the online pharmacy.
Indiana's attorney general decided not to appeal the court's ruling. In September 2016, Patel was resentenced to 18 months for child neglect, less time than she had already served. The judge then ordered Patel's immediate release.
In April 2015, police in Arkansas arrested Anne Bynum after she gave birth to a stillborn child at home. She was charged with concealing birth and abuse of a corpse. The state also charged her friend, Karen Collins, with 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 hide, she took medications to induce labor.
In a video interview, Bynum said she delivered the baby at home by herself, in the middle of the night. "She was just beautiful. Really beautiful. But eyes closed, mouth closed. Complete stillness." 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 staff determined it had been a stillbirth.
When the hospital discharged Bynum days later, she was arrested on her way home. The sheriff put her in handcuffs and placed her in the back of the police car. Bynum's trial was brief, just two days of testimony and a few minutes of jury deliberation. The judge sentenced her to six years in prison. An appeals court reversed the conviction in December 2018.
Exactly who notified the police remains unknown. The appeals court noted that "Bynum told friends, her attorneys, and her priest about the pregnancy and of her intent to put the child up for adoption when it was born." On the morning after she gave birth, Bynum texted her attorney "who advised her to go see a doctor." The attorney also called a funeral home and "was advised to have Bynum take the fetal remains to the hospital."
It's unclear whether Bynum shared the texts herself, or if police recovered them another 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 didn't know she was pregnant, but later admitted that she had been aware of the pregnancy for at least a month. She also admitted to conducting internet searches for how to have a miscarriage.
Fisher reportedly "voluntarily surrendered" her iPhone to police. Court records show her phone's "memory and data were then downloaded, including but not limited to Fisher's past internet activity." While reviewing that data, investigators learned that Fisher had researched "buy abortion pills, mifeprisone [sic] online, misoprostol online," and "buy Misoprostol Abortion Pill Online." Fisher had also "apparently purchased misoprostol immediately subsequent to these searches." Another court document suggests police also searched her husband's phone.
While there is no evidence that Fisher took the pills, prosecutors used her digital data to argue that she intended to abort her pregnancy. The murder charge was eventually dismissed.
Technology companies may not have many options for handling search warrants from the police, even when the investigations relate to abortion. But companies do get to decide how much digital data they collect about people and for how long they store the information. They also get to decide whether to offer end-to-end encryption, which would give people increased privacy for all of their messages. Following Russia's invasion of Ukraine last year, Meta announced it's making encrypted one-to-one chats in Instagram available to adults in the two countries. And while Elon Musk said Twitter should end-to-end encrypt direct messages prior to acquiring the company, it's unclear if this will actually happen.
Last year, reporters found that Facebook and anti-abortion clinics collect sensitive information on would-be patients. The Markup also reported that Hey Jane, an online abortion pill provider, employed a series of online trackers that follow users across the internet -- until the journalists reached out about the practice. More recently, ProPublica found nine pharmacies selling abortion pills also sharing sensitive data with Google and other third-parties. All nine were recommended by Plan C, which provides information about how to get abortion pills by mail. None responded to ProPublica's request for comment.
In Abortion, Every Day, publisher Jessica Valenti reminds us that "if you are white, have money, and the ability to travel to a state where abortion is legal -- you will have a much easier time than those from marginalized communities." Everybody deserves access to reproductive health care. If the past decade is any indication, protecting essential abortion rights is going to require all of us, from doctors, nurses and attorneys to lawmakers, software engineers and voters.
Sarah Mitchell-Weed contributed research.