In June—before the overturn of Roe v. Wade by the far-right Supreme Court—Nebraska police, using information obtained through a warrant served to Facebook, arrested a then 17-year-old girl and her mother for seeking an abortion after 20 weeks. The Norfolk, Nebraska police department requested, according to the affidavit in support of the search warrant, “profile contact information, wall postings, and friend listing, with Facebook IDs” going back to April 2022, after having asked the daughter about the age at which her stillbirth occurred.
Allegedly contained within this vast array of personal information were private messages between the teen and her mother on obtaining the abortion pill Pregnot. These messages were subsequently used by the police to file felony charges against the pair. The daughter was more than 23 weeks pregnant, according to medical investigators, with NPR saying her pregnancy was “about 24 weeks.”
The efforts to prosecute the pair are part of the state’s campaign to ban abortion, with the state legislature failing just days ago to pass a 12-week abortion ban. The Republican Party is seeking to whip up a reactionary atmosphere and embolden far-right elements against mass opposition to the banning of abortion, of which the failed referendum to ban abortion in neighboring Kansas is representative of.
Initially, the mother and daughter were charged with a single felony for removing, concealing or abandoning a body, as well as two misdemeanors, after the daughter had a miscarriage on April 22. A man was also charged in connection with helping to dispose of the fetus.
It was not until a month later that police filed felony charges relating to the state’s 2010 abortion law, which stipulates felony charges for those performing or aiding in an abortion after 20 weeks, on the basis that fetuses can feel pain, a spurious claim refuted by the Journal of the American Medical Association, the British Royal College of Obstetricians and Gynecologists and researchers at Harvard University, University College London and elsewhere. The claim is pseudoscience because the neural structures necessary to feel pain are not yet developed at that age. Eight other states followed Nebraska’s lead, passing similar laws banning abortion at 20 weeks.
The prosecutor handling the case, according to the Associated Press, said it is the first time in his 32 years as county prosecutor that he has charged anyone with illegally performing an abortion after 20 weeks . Before the overturning of Roe v. Wade in June, when the girl and her mother were charged, states were not allowed to enforce abortion bans until 24 weeks of pregnancy, when fetuses are generally considered viable.
As in other states such as Indiana and Texas, the number of abortion clinics, where the vast majority of abortions are performed in the state, has decreased dramatically over the preceding decades and is mostly limited to highly populated cities. The number of abortion clinics in Nebraska declined from 8 clinics in 1982 to 3 in 2017, with a total of 7 facilities of all kinds providing abortions in a state which is home to 1.9 million people.
According to court documents, the mother was charged with five crimes, three of which are felonies, including “perform/attempt abortion at > 20 weeks, perform abortion by non-licensed doctor, and removing/concealing a dead human body.” The latter of the charges refers absurdly to the disposal of the fetus in the same way as one would the body of a murder victim. A more appropriate comparison would be to the disposal of medical waste, i.e., a part of a woman that cannot survive outside of her such as an appendix, tonsils, etc.
But such is the logic of the reactionary religious-based laws which assign person-hood on the basis of Christian concepts of life, blatantly violating the separation of church and state, as well as the prohibition of religious discrimination that was enshrined in the Constitution as part of the American Revolution. This historic struggle sought not just to overthrow the rule of the reactionary British monarchy over the colonies but to sweep away all of its reactionary remnants, including its practice of religious discrimination and a state-sanctioned religion, of which the British king was head.
Both are being brought back by the modern-day Tories in the Republican Party, aided and abetted by the Democrats who view a “strong Republican Party” as essential to saving American capitalism. Most of the leading Republicans involved in the attack on abortion rights also supported the attempted coup on January 6, 2021 to overthrow the Constitution and install then-President Donald Trump as a dictator. Yet every effort has been made by Democrats to obscure this fact and shift all blame away from the Republican Party and solely onto Trump and a few chosen “bad apples.”
A 24-week-old fetus is in the “extremely preterm” range of pregnancy, according to the World Health Organization, and is unlikely to survive outside the mother without medical intervention. In American states such as California and other countries such as the United Kingdom, abortions are allowed up to 24 weeks with exceptions after that point in the case that the pregnancy puts the mother’s life at risk.
Facebook spokesman Andy Stony defended the company’s decision to release the data, saying, “Nothing in the valid warrants we received from local law enforcement in early June, prior to the Supreme Court decision, mentioned abortion,” and “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.”
He claimed Facebook would “always scrutinize every government request we receive to make sure it is legally valid.” Contrary to these claims, Facebook admitted it gave investigators data 88 percent of the time, out of the nearly 60,000 times a year it was asked, cementing its role in the US domestic surveillance apparatus.
The case is also a landmark in the attack on democratic rights in general, which is being pursued under the guise of attacking women’s democratic right to abortions.
The seizing of the mother and daughter’s personal information, facilitated by Facebook’s handing over of their data, violates their Fourth Amendment constitutional rights against unreasonable search and seizure. The police, according to Facebook, were only requesting information pertaining to the improper disposal of a fetus. It is the digital equivalent of police walking into someone’s house for a domestic dispute and proceeding to rifle through closets looking for drugs and contraband, a blatantly illegal practice that has been grounds for dismissal of cases.
Additionally, as the mother and daughter are technically being tried retroactively, that is, for a crime that was not a crime at the time it was committed, the question arises if they are being prosecuted ex post facto (literally after the fact), which violates the US Constitution.
The prosecution of a girl and her mother for performing an abortion is a sign of things to come. Women and girls suffering stillbirths can expect to have all of their data combed through by the American Gestapo, aided and abetted by social media companies like Facebook.