What Nebraska’s Sentencing of a Teen Who Used Abortion Pills Might Mean in Post-Roe America

Nebraska’s criminal sentencing of a woman who used abortion pills to end her pregnancy has highlighted how prosecutors can use digital data and charge friends and family members in criminal cases related to abortion, taking on new resonance after the fall of Roe v. Wade.

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Celeste Burgess, 19, was a minor when she was pregnant and had an abortion. Earlier this year, she pleaded guilty to illegally concealing or abandoning a dead body. Last week, a Nebraska judge sentenced Burgess to 90 days in jail. Her mother was also charged; prosecutors accused Jessica Burgess, 42, of buying abortion pills online. She faces up to five years in prison and pleaded guilty to providing an illegal abortion, false reporting, and tampering with human skeletal remains.

The Burgess case began before the Supreme Court overturned Roe v. Wade last year and when Nebraska had a 20-week abortion ban in effect. Nebraska has since enacted a 12-week abortion ban. But legal experts think the Burgess case has gained new relevance in the post-Roe era, suggesting the case may be a harbinger of an increase in criminal prosecution of abortion-related cases. “I certainly think we’re going to see a lot more abortion prosecutions. I don’t think this case was going to be inspirational, but I do think it’s likely to embody trends we’re going to see elsewhere,” says Mary Ruth Ziegler, a law professor at UC Davis.

In the coming years, Republican-led states could push laws protecting the idea of the fetus as a person and imposing additional criminal penalties for those who self-manage abortion, says Rachel Rebouché, a law professor at Temple University. “This is potentially a signal of some really disturbing things to come,” she says.

These are three areas to watch after the Nebraska case, according to legal experts.

Criminalization of those assisting abortion

It’s “striking” that Celeste Burgess received jail time, says Rebouché: “The court made a point to say that this is such a serious case, that it merits a person without any criminal history… going to jail for three months.”

“The Court specifically finds that while probation is appropriate, confinement is necessary because without this confinement, it would depreciate the seriousness of the crime or promote disrespect for the law,” the judge’s order stated.

There’s also been an increased focus on “accomplices” in a post-Roe world, says Sapna Khatri, a clinical teaching fellow at the UCLA School of Law. Texas was at the forefront of this legal trend with its 2021 abortion law, which allows anyone to sue anyone who performs, aids, or intends to aid in an abortion; that may include private citizens who help a family member or a friend to get an abortion. Since Roe fell, other states have followed suit with other laws: Ziegler points to Idaho’s “abortion trafficking” law, which bans adults from helping a minor to get the procedure without parental consent. In Oklahoma, aiding or abetting someone to help them get an illegal abortion can be subject to prosecution. In Missouri, Republican lawmakers tried but ultimately failed in passing a measure that would make it illegal to “aid or abet” abortions outlawed in Missouri, even if they were performed in other states.

Read More: What Abortion Laws Look Like in the U.S. One Year After the Fall of Roe v. Wade

In the past, Republicans have typically stressed that they will go after abortion providers and not pregnant people, but the Burgess case and sentencing is an example of how that isn’t always the case, says Khatri.

“When states say they are not criminalizing abortion, a lot of people will look to this case and see a young woman has been given jail time for basically self managing an abortion—regardless of the context and the legal details,” says Alina Salganicoff, senior vice president and director of Women’s Health Policy at KFF.

With new laws on the books, the country may see more prosecutions of women like Celeste Burgess and those considered to be helping someone get an abortion.

Data privacy

Nebraska law enforcement used Facebook messages between the mother and daughter to show how they discussed getting abortion pills and burning the evidence. 

Many people assume that direct messages on Facebook, Instagram, and Twitter will remain private. They shouldn’t, legal experts say. “It’s an easy way to communicate and yet it leaves them vulnerable to criminalization,” Khatri says. “Law enforcement can usually get these records if they have probable cause.” 

Law enforcement’s use of digital data in abortion-related cases could have a chilling effect. “It’s a lot of fear mongering,” Khatri says. People may end up getting inaccurate information about abortions because “they’re nervous that searching for this information online will make that search history will end up in the hands of law enforcement.” 

Since the fall of Roe, lawmakers have been wary of how prosecutors may use digital data to criminalize abortion. “Your geolocation data, apps for contraception, web searches, phone records—all of it is open season for generating data to weaponize the personal information of women across the country,” Senator Ron Wyden, an Oregon Democrat and longtime proponent of digital privacy reform, previously told TIME.

There have not yet been many examples in the courtroom. In a Texas case, a man sued his ex-wife’s friends in March for helping her get a medication abortion. His case is largely based on text messages he allegedly discovered on his ex-wife’s phone. The following month, her friends counter-sued him for invasion of privacy. The Burgess case marks one of the first times an abortion-related case after the overhaul of Roe has relied on digital data.

Abortion pills

The Burgess case has renewed attention around medication abortion, which involves two different drugs: mifepristone and misoprostol.

Thirteen states have a near-total ban on abortion, which includes abortion medication, and 15 states restrict access to medication abortion, according to the Guttmacher Institute, as of June 1. While the FDA approves the use of abortion pills up to ten weeks of pregnancy, many states have abortion bans that kick in even earlier and apply to the use of pills, too.

The FDA’s approval of abortion medication dates back to 2000; it maintains that the method is a safe and effective way to end a pregnancy. (It extended approval of mifepristone from seven to 10 weeks in 2016.) But a group of anti-abortion clinicians sued in federal court in Texas last year, arguing that the FDA wrongfully approved mifepristone. “It is a significant case not only for its implications on abortion access and medication abortion—it’s also the first time a federal court is being asked to overturn an FDA determination about the safety and effectiveness of a drug,” says Salganicoff of KFF. This could also have implications for vaccines and other drugs, she adds. And any restrictions on the pill could affect its use and distribution where abortion is legal. In April, the U.S. Court of Appeals for the Fifth Circuit blocked a Texas federal judge’s ruling; it said that mifepristone can stay on the market under strict conditions, including banning its distribution by mail and use beyond seven weeks of pregnancy.

Medication abortion has become increasingly popular over the years, even before Roe was overhauled: as of 2022, more than half of all abortions in the U.S. involve using an abortion pill, according to the Guttmacher Institute.

“They’re important because they allow women and girls to end pregnancy, more or less in secrecy,” says Carol Sanger, a Columbia Law professor. “You don’t have to go to Planned Parenthood and get your picture taken by Right to Life groups or go past screaming protesters.”

A 2023 Pew survey found that 53% of adults believe medical abortion should be allowed in their states; 22% say it should be illegal, and 24% say they aren’t sure. 

Caveats

While the Burgess case has new resonance after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, there are important caveats to keep in mind. The case is unusual given that the abortion took place so late into the pregnancy: at about 30 weeks, according to court records. Abortions at or after 21 weeks make up only 1% of all abortions in the U.S., according to KFF, and 30 weeks is well past when the FDA approves the use of abortion medication.

Burgess was also charged with concealing a dead body, because she and her mother said that they burned and buried the fetal remains.

Roe banned laws from establishing fetal personhood before viability, which is around 24 weeks of pregnancy when a fetus can survive outside the womb. Prosecutors have more leeway to criminalize pregnant people in a post-Roe environment, says Nicole Huberfield, a law professor at Boston University. “When Roe was the law of the land, we understood that if a state tried to prosecute people prior to viability, that was typically going to be deemed impermissible. Now, we don’t have that guardrail.” Still, Burgess had an abortion after the 24-week mark, and her case began while Roe was still in effect.

While many red states have passed abortion restrictions and bans since the fall of Roe, there haven’t been many criminal cases against pregnant people or providers. Experts point to multiple possible reasons: It’s still early. Self-managed abortions can be hard to detect. Prosecutors are elected and many people don’t want abortion restrictions to be enforced. There has been little civil disobedience among providers; providing illegal abortions could cost them their medical license. And the legal landscape across the country is quickly evolving.