Arrested on suspicion of abortion: The Nebraska case that proved women can’t safely communicate on Facebook

A teenager and her mother are facing criminal charges in Nebraska for allegedly inducing an abortion. Celeste Burgess, 18, and Jessica Burgess, 41, both face felony and misdemeanor charges for allegedly procuring medication to stop a pregnancy — in other words, buying abortion pills — and disposing of the fetus after it was stillborn. They have both pleaded not guilty, meaning that, unless they strike a deal with the prosecution in the coming months, they will face trial.

The idea that a teenager would end up facing criminal charges for terminating a pregnancy is jarring, but it’s been a possibility ever since Roe v Wade was overturned. Indeed, some might say it was inevitable. And the way in which charges were brought against Celeste and Jessica is particularly notable. Facebook released private messages between the mother and daughter when access to them was requested by investigators in Nebraska, according to The Associated Press. It was only after those private messages were reviewed that those investigators believed they had enough evidence to charge the mother with the abortion-related crime. And even though the daughter was a minor when all of this occurred, the state is now choosing to prosecute her as an adult.

“In early June,” the agency wrote, “the mother and daughter were only charged with a single felony for removing, concealing or abandoning a body, and two misdemeanors: concealing the death of another person and false reporting. It wasn’t until about a month later, after investigators reviewed the private Facebook messages, that they added the felony abortion-related charges against the mother. The daughter, who is now 18, is being charged as an adult at prosecutors’ request.”

Facebook has argued it was only complying with a warrant when it gave investigators access to the Burgesses’ messages. “Nothing in the valid warrants we received from local law enforcement in early June, prior to the Supreme Court decision, mentioned abortion,” Andy Stone, a spokesman for Facebook, told the AP. “The warrants concerned charges related to a criminal investigation and court documents indicate that police at the time were investigating the case of a stillborn baby who was burned and buried, not a decision to have an abortion.”

The company has insisted its officials “always scrutinize every government request we receive to make sure it is legally valid,” adding that it “will fight back against requests that it thinks are invalid or too broad”. Not shy about providing numbers, Facebook told the AP it was asked for data by the government 59,996 times in the second half of last year, and it provided information in about 88 percent of those times.

One might point out that there was a time when Facebook showed a bit more reticence when it came to sharing its users’ information, and a bit more energy when time came to try defending it. In 2014, it fought a government request for what The New York Times described as “the contents of hundreds of Facebook accounts” stemming from a social security fraud case in New York, namely “nearly complete account data on 381 people, ranging from pages they had liked to photos and private messages.” Facebook lost the case, but damn if it didn’t fight it for years (the search warrants were signed in 2013, and the state Court of Appeals didn’t rule against Facebook until 2017).

Of course, one could argue that that case was different, and that it fell under the “too broad” requests Facebook says it may oppose. The search warrant in the Burgesses’ case only affected a couple of people, not 381. But regardless of whether you believe Facebook should have fought a bit harder to keep the mother and daughter’s information private, the case is a compelling, urgent call for women to rethink how we use technology – and to think of how it may be used against us. (The fact that Meta, Facebook’s parent company, also owns the encrypted messaging service WhatsApp and Instagram is not what I would call especially reassuring either.)

We do appear to be caught in a perfect storm of crappy legal infrastructure (as I believe the scientific parlance goes) and technological scrutiny. The allegations against Celeste and Jessica Burgess predate the overturning of Roe v Wade by the Supreme Court in June, but the prosecutor handling the case told the AP it’s “the first time he has charged anyone for illegally performing an abortion after 20 weeks”.

“Before the US Supreme Court overturned Roe v Wade in June, states weren’t allowed to enforce abortion bans until the point at which a fetus is considered viable outside the womb, at roughly 24 weeks,” the agency noted.

Do you remember when people thought that the only consequence of Roe v Wade being nuked was that women seeking abortions in red states would “simply travel somewhere else”? That was a stupid argument, obviously (travel requires funds and time, resources that are far from available to everyone), but it’s astonishing to see how short-sighted it really was. Of course the overturning of Roe is about more than “just” traveling to another state. It’s about further poisoning the well of our legal system by making it easier to prosecute women.

The allegations against Jessica and Celeste Burgess are complex, and deserved to be treated as such. The mother and daughter “allegedly enlisted the help of a 22-year-old man to bury the fetus, and later discussed via Facebook DM burning it to dispose of it,” Motherboard reported after obtaining and reviewing court documents. If anything, the case is an illustration of what happens when states impose abortion bans at 20 weeks – a limit denounced by Planned Parenthood.

“Politicians in Congress have repeatedly pushed bills that would impose a nationwide ban on abortion at 20 weeks of pregnancy. This dangerous, out-of-touch legislation is nothing more than yet another attempt to restrict access to safe, legal abortion,” Planned Parenthood wrote on its website. “Nearly 99 percent of abortions occur before 21 weeks, but when they are needed later in pregnancy, it’s often in very complex circumstances.”

When Roe was overturned, multiple social media users advised others to delete their period-tracking apps, with the idea that any data they might store on their menstrual cycle — including a potential pregnancy — could be used to prosecute them. (The New York Times pointed out that it’s hardly just your period-tracking app that can be used as digital evidence of a pregnancy or abortion.) If any evidence was needed that this is a valid concern, the Burgess case is it.

In the words of Shane Ferro, an attorney at the Legal Aid Society, a nonprofit legal aid provider in New York City: “Yeah, you should get off Facebook, stop using Instagram, use Signal or the real phone to talk about sensitive subjects, but you should also demand the government that represents you takes steps to protect your privacy, bodily, digital, and otherwise.”

Because most of us don’t have the option to leave the internet entirely — nor should we be forced to do so. For one thing, I like to communicate with my loved ones (many of whom live across the ocean from me.) For another, working online — including on social media — is a big part of my job as a journalist. Considering that, it would be nice — some might say the bare minimum — if my government could remember that I and other women are human beings, and perhaps it could do a thing or two to protect our basic rights, like the right to privacy.

For a long time, we’ve been told that free markets mean freedom for everyone. Facebook has just shown how completely untrue that is. We’ve also been told that our government is there to protect us, and that justice will be done on the Supreme Court. This case makes that look laughable, too.

In a world like this, I and women across America are left to wonder: Is anything there to protect us at all? Or was locking us up always the point?