On Monday, a tip to police in Norfolk, Nebraska, led to the arrest of a mother and daughter, who now face felony charges for the 17-year-old daughter’s self-managed abortion, for which the teen is being charged as an adult for “removing, concealing or abandoning a dead human body.” In addition to the tip to police, law enforcement has entered Facebook messages as evidence against the pair after successfully serving the company with a search warrant. The harrowing development is just one example of the multi-pronged ways pregnant people and those who help them are being monitored and criminalized—even more so after the fall of Roe v. Wade.
Since the Supreme Court decision in Dobbs v. Jackson Women’s Health, Democrats have ramped up pressure on data brokers, including Meta and Google, to stop collecting and selling pregnant people’s data, which poses a legal risk to those who lose their pregnancies or have abortions. This pressure campaign has been largely unsuccessful: Other than an ambiguous announcement from Google pledging to delete some location data of users who visit abortion clinics and other relevant facilities, data brokers overwhelmingly haven’t changed their practices. The fall of Roe also prompted a torrent of urgent warnings to delete period and fertility tracking apps, despite experts pointing out that criminalizing pregnancy has historically relied on other approaches.
Yet, on top of news from Nebraska, a new report shared with Jezebel by the legal advocacy organization If/When/How found that, in the majority of cases in which pregnant people faced criminal charges for self-managed abortion in the past two decades, they were reported to law enforcement following in-person interactions—by doctors and acquaintances.
Between 2000 and 2020, among 61 cases of individuals self-managing abortion or helping someone self-manage an abortion that “came to the attention of law enforcement,” most were reported to police by care professionals and acquaintances: 39% were reported by health care providers and 6% by social workers, while 26% were reported by acquaintances the pregnant person had shared information with, including friends, parents, and intimate partners. Even prior to Roe being overturned, bounty hunter-style abortion bans in Texas, Idaho, and Oklahoma were a boon to abusers, who could stalk their victims and profit off their abortions. If/When/How found 20% of cases also came to the attention of police through other means, including police recovery of fetal remains and anonymous tips to police.
“What we’ve really confirmed through our research is that the biggest threat to the privacy of abortion seekers is other people,” Laura Huss, a senior researcher at If/When/How and a co-author of the report, told Jezebel. “We really want health care professionals to know they can help stop criminalization before it happens.” Huss noted that when patients know health care providers are policing them, “that can only make people more afraid to get the care they need.”
Currently, about a dozen states have totally banned abortion or banned care at about six weeks (before many people know they’re pregnant). Many of these bans threaten doctors who defy them with lengthy prison sentences. While few bills have explicitly threatened abortion patients with incarceration, pregnant people have faced criminal charges and jail time since long before Roe was overturned. Criminal charges for pregnancy loss and self-managed abortion tripled between the periods of 1973 to 2005 and 2006 to 2020, from 413 to 1,331 cases.
This has often been a result of police departments and prosecutors misusing fetal homicide laws that are meant to protect pregnant people to instead criminalize them for alleged behaviors like substance use that, authorities have claimed, caused them to miscarry. In other cases, they’re charged with crimes like “gross abuse of a corpse” for “improperly” disposing of fetal remains, like the mother and daughter in Nebraska.
People who lose their pregnancies can be criminalized for all kinds of reasons when the state recognizes fetuses as people. In 2019, an Alabama woman was jailed and charged with homicide for miscarrying after she was shot in the stomach; in 2009, a New York woman was charged with manslaughter for not wearing a seatbelt and miscarrying during a car accident. People of color disproportionately face criminal charges for their pregnancies: If/When/How’s report found a “homicide consideration” was twice as likely in cases involving pregnant people of color.
In April, a Texas woman named Lizelle Herrera was arrested, jailed, and charged with homicide for allegedly self-managing an abortion with medication; she was reported to police by a health care professional. In 2013, Purvi Patel was charged with feticide for allegedly self-managing an abortion; she was also reported to police by her doctor. In 2010, an Iowa woman named Christine Taylor, then a mother of two, was charged with attempted feticide after she fell down stairs, miscarried, and doctors reported her to police when they misidentified her pregnancy as being in the third trimester (an Iowa statute defines termination of pregnancy in the third trimester as illegal).
In 2009, when doctors determined a Florida woman named Samantha Burton was at risk of miscarriage, she was essentially held prisoner at a hospital and forced to undergo an unwanted cesarean procedure. In a similar instance in Utah in 2004, when Melissa Rowland gave birth to twins and one was stillborn, she was arrested for fetal homicide for not going to the hospital sooner. Further chilling examples of health care and social workers reporting pregnant patients to police are detailed in a recent amicus brief filed by National Advocates for Pregnant Women (NAPW) to challenge an Arizona fetal personhood law.
All of these cases embody how, for doctors—who are mandatory reporters, required by law to report crimes to police—“misunderstanding, confusion about the law, and stigma around pregnancy loss and self-managed abortion” contribute to criminalization, NAPW research associate Purvaja Kavattur told Jezebel. When pregnancy loss and self-managed abortion are stigmatized, and without the protections of Roe, some doctors believe they have a legal obligation to report patients to police. And of course, because abortion pills induce a miscarriage and can’t be discerned from naturally occurring miscarriage, states that ban abortion have effectively banned miscarriage too.
According to Kavattur, Democratic lawmakers focusing exclusively on digital surveillance of pregnant people should take note and legislate accordingly. “Based on the fact that the criminalization is not actually driven by digital surveillance as the primary starting point, it’s incredibly important for politicians to promote patient privacy and the importance of keeping the health care and carceral systems separate, too.”
If/When/How’s report emphasizes that digital surveillance of pregnant people is certainly a factor in criminalization. Police relied on online searches and text messages about abortion pills from Patel as evidence against her. Latice Fisher, a Black mother of three in Mississippi, was convicted of manslaughter in 2018 for losing a pregnancy, and her previous online searches for abortion pills were also entered as evidence against her. Location data that places individuals at abortion clinics can be used against pregnant people, too—Google said it received 11,554 geo-fence warrants from police seeking location data for a wide range of reasons in 2020 alone. Websites for the anti-abortion crisis pregnancy centers that Google includes in search results for abortion are also known to collect pregnant people’s data, and CPCs obtain data from Meta as well.
Often enough, as was the case for Herrera in Texas, charges against pregnant people are sometimes dropped. But If/When/How’s report found that “every criminal intervention has its own set of unquantifiable reverberations” and provided several chilling examples: People who were prosecuted after losing pregnancies have lost custody of their born, living children. An undocumented woman who was investigated but not even criminally charged for her self-managed abortion was still turned over to immigration officials for deportation. Others have lost jobs or been forced to move from their homes due to ostracism.
Huss and Kavattur both note that the onus shouldn’t be on pregnant patients to be extra cautious around their care providers, or to avoid being surveilled in other ways. However, we live in a post-Roe world now, so being discreet about discussing pregnancy and abortion is key.
When using abortion pills, carefully follow instructions to avoid complications that could require medical attention and interactions with doctors. When necessary, seek guidance on abortion pills or pregnancy complications from confidential helplines staffed exclusively by pro-choice doctors, like M+A Hotline. And when communication with friends and family about pregnancy and abortion is necessary, use encrypted messaging apps like Signal or Protonmail. If/When/How operates a legal helpline for those who do run into pregnancy-related legal trouble, and Jezebel has previously written a more-extensive guide on navigating pregnancy-related legal risks.
Huss said that her organization’s report provides a preview of “the future of abortion criminalization” in the U.S. And due to stigma and misinformation, a significant part of that future appears to be the growing role of health care workers as agents of law enforcement.