Judge Cancels Psych Eval for Mom in Nebraska Abortion Case Due to ‘Lack of Funding’

"It’s fucking fucked up,” a lawyer said of the move days before Jessica Burgess is sentenced for buying her daughter abortion pills and burying fetal remains.

By Susan Rinkunas | September 21, 2023 | 3:39pm

Abortion Politics

Judge Cancels Psych Eval for Mom in Nebraska Abortion Case Due to ‘Lack of Funding’

On Friday, a Nebraska mother will be sentenced for buying abortion pills for her daughter and helping bury the fetal remains in 2022, before the fall of Roe v. Wade. But that sentencing will now take place without a court-ordered psychological evaluation. Last week, the judge in the case rescinded his own order, saying he was skipping the evaluation due to a “lack of funding.” News of the cancellation, first reported by local outlet KTIV and confirmed in court documents obtained by Jezebel, has alarmed advocates.

“I can’t imagine a court saying that this is essential evidence, or it would be helpful, and then not following through,” said Rafa Kidvai, director of If/When/How’s Repro Legal Defense Fund. (RLDF is not representing the woman, Jessica Burgess.) “It’s fucking fucked up.”

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Kidvai previously spent five years as a criminal public defender in New York City and said defense attorneys use psychological evaluations as “mitigation evidence” to help the defendant either before making any plea deals or prior to sentencing. “The purpose of the psych eval is to infuse humanity into a process,” they told Jezebel, adding that it “is such an essential part of someone’s defense because, if you’re saying that someone’s life circumstances and their psychology plays a role in the happenings of the case, then you want to hear from an expert on that.”

The Madison County District Court clerk told Jezebel that, in general, the party asking for the evaluation has to pay for it. In this case, Judge Mark Johnson requested the evaluation, not the defense, so Madison County was supposed to cover the cost.

News of the charges against both Burgess and her daughter broke shortly after the Supreme Court overturned Roe, but the events in question happened before the ruling. Back in April 2022, someone tipped off police about a stillbirth and buried fetal remains. Prosecutors allege that Burgess bought abortion pills for her daughter Celeste, who was 17 at the time. Celeste gave birth to a stillborn fetus estimated to be 29 weeks’ gestation and they then burned and buried the remains with the help of another person (a 21-year-old man who only got probation). Police obtained a warrant for Facebook messages between the pair; Facebook parent company Meta complied and provided the messages in which they allegedly discussed ending Celeste’s pregnancy with pills.

Burgess faces sentencing on two felonies and one misdemeanor. Judge Johnson ordered the evaluation on July 7, plainly writing, “The Court ordered that a psychological evaluation is ordered to be conducted and appended to the presentence investigation report.” Both were due by September 15 at the latest. But on September 13, Johnson wrote that the court “rescinds the order for Psychological Evaluation that was ordered on July 7, 2023. The evaluation was not completed due to lack of funding.” (Johnson was appointed by former Gov. Dave Heineman, a Republican, and then won retention elections in 2016 and 2022.)

The clerk said that the cost of a psychological evaluation depends on how long the eval lasts and if the doctor has to travel, but the figure doesn’t usually become public. Still, a document from the Nebraska court system said that, as of October 2021, the rate for an adult psychological evaluation from a registered provider was $169. Other online sources suggest that a mental health assessment could cost anywhere from $200 to $2,500.

Jezebel contacted both the office of Madison County attorney Joseph Smith, as well as Burgess’ lawyer Bradley Ewalt, for comment. Smith’s office told Jezebel that he was not able to comment on the case, while Ewalt did not respond to multiple requests for comment.

Kidvai said this canceling of crucial psychological evidence shouldn’t happen in general, but especially not because of money. “It’s very clear what they’re saying is that ‘we don’t care about your humanity, we don’t actually care about your life. We refuse to infuse humanity into the process,’” they said. “Which is, you know, it’s a choice.” Kidvai said it was a “travesty” that the legal system which claims to mete out justice can’t even live up to its own public promises.

While self-managed abortion is not illegal in Nebraska—it’s only explicitly banned in one state, Nevada—prosecutors can and do criminalize people for abortion, miscarriage, and stillbirth by charging them under other statutes. Celeste pled guilty to a felony charge of concealing or abandoning a dead body in exchange for getting two other charges dropped. She was sentenced in July to 90 days in jail and two years’ probation and was released last Monday after serving 53 days.

Jessica Burgess pled guilty in July to three charges (tampering with human remains, false reporting, and abortion after 20 weeks’ gestation) in exchange for prosecutors dropping two others (concealing the death of another person and abortion by someone other than a licensed physician).

Kidvai noted the hypocrisy of prosecutors charging Burgess with providing an abortion after 20 weeks—a law ostensibly meant for clinics and abortion providers, or anyone charging money for the procedure—after agreeing to drop a charge that she performed an abortion without a medical license.

They added prosecutors don’t care that Burgess obviously isn’t an abortion provider, because their strategy is just about “punishing someone for loving someone—their child, specifically, who’s in crisis.” Prosecutors often “throw everything at somebody so that they’re facing the highest possible consequences,” because it gives them more leverage, Kidvai said. “What is more powerful than threatening someone with their freedom?”

This is the context people need to understand when reading about plea deals in this case and others, Kidvai said. “People plead every day of their life to stuff that they didn’t do because they’re trying to decide between harms”—the harm of going to trial versus the harm of admitting guilt for expediency, they said. We don’t yet know what Burgess’ sentence will be, nor will we ever know how a psych evaluation could have mitigated her punishment, but the larger point is that abortion should be accessible and this mom and daughter should never have been charged.

“People plead guilty to things because the power of the state has crushed them,” Kidvai said. After the judge in this case canceled the psychological evaluation he ordered, the crushing power of the state is even more clear.

People who need assistance self-managing a miscarriage or abortion can call the Miscarriage + Abortion Hotline at (833) 246-2632 for confidential medical support, or the Repro Legal Helpline at (844) 868-2812 for confidential legal information and advice.