Nebraska teen and mother facing charges in abortion-related case that involved obtaining their Facebook messages

CNN

By Sara O’Brien and Clare Duffy, CNN Business

A Nebraska mother and her 18-year-old daughter are facing multiple charges in a case that involved police obtaining Facebook messages between the two that authorities allege show evidence of an illegal self-managed medication abortion, as well as a plan to hide the remains.

Norfolk police began investigating Celeste Burgess and her mother, Jessica Burgess, in late April following concerns Celeste had prematurely delivered a stillborn fetus, according to court documents. After the two were initially charged, law enforcement continued to investigate and obtained Facebook messages between Celeste and Jessica that appear to make reference to abortion pills and burning “the evidence,” according to a copy of the conversation — which is now being used in the case — contained in court filings. Police claim that after the body of the fetus was exhumed, it appeared to have “thermal injuries” indicating that it may have been burned after the pregnancy was terminated, court documents show.

The case began before the Supreme Court overturned Roe v. Wade in June. But it highlights an issue digital privacy experts and some lawmakers have been raising alarms about in recent months: That law enforcement in some states could use people’s personal data to enforce laws prohibiting abortion, a practice which experts worry could increase following the Supreme Court’s ruling. Experts have warned that prosecutors could, for example, serve search warrants to tech companies requesting location data, search history or call logs to help corroborate whether someone had or aided in an abortion. The Burgess case shows how that has, in some cases, already been happening to enforce existing laws.

Celeste, who was 17 at the time of the alleged incident, initially told investigators that she had unexpectedly miscarried a stillborn fetus, and that she and her mother later buried the fetus, according to an affidavit in support of a search warrant. When interviewed by a police detective she “scrolled through her messages on her Facebook Messenger account” in an attempt to surface the date of her miscarriage, which police said led them to believe that there might be more messages with specifics about the case and to seek a search warrant, according to court documents.

The public defender’s office representing Celeste Burgess, who is being tried as an adult, declined to comment. The attorney representing Jessica Burgess, Bradley Ewalt, also declined to comment.

Investigators served Meta, Facebook’s parent company, with a search warrant on June 7 for information pertaining to the accounts of Celeste and her mother. Facebook turned over the results of the search warrants within two days. The data provided by the company included over 250 MB of data related to Celeste’s Facebook account and more than 50 MB of data about Jessica’s account, such as account information, images, audio and visual recordings, messages and other data, court documents show. The data included direct message exchanges between Celeste and Jessica two days prior to the “miscarriage/stillbirth” that suggested they’d received pills, and made plans for how to use them and what to do with “the evidence,” according to a signed affidavit in support of an additional search warrant by Detective Ben McBride of the Norfolk Police Investigations Unit.

In a Tuesday night statement on Twitter responding to a story about the Burgesses’ case, Meta spokesperson Andy Stone said “nothing in the valid warrants we received from local law enforcement in early June, prior to the Supreme Court decision, mentioned abortion.” In a post Tuesday on its website titled, “Correcting the Record on Meta’s Involvement in Nebraska Case,” Meta said “court documents indicate that police were at that time investigating the alleged illegal burning and burial of a stillborn infant. The warrants were accompanied by non-disclosure orders, which prevented us from sharing information about them. The orders have now been lifted.”

The affidavit filed by McBride, the detective investigating the Burgesses, requesting approval of the search warrant to Facebook noted that he would be seeking evidence related to “prohibited acts with skeletal remains,” according to court documents obtained by CNN Business.

After the initial request to Facebook, prosecutors filed an additional search warrant on June 16 that requested evidence of internet searches or purchase of medications used for miscarriage, among other things. Thirteen technology devices belonging to the Burgesses were also seized in response to that warrant, according to the court documents

In June, Celeste and Jessica were each charged with one felony count of prohibited acts with human skeletal remains, one misdemeanor count of concealing the death of another person and one misdemeanor count of false information. Both have pleaded not guilty to all three, and trials have been set for later this year. After the police obtained data from the two search warrants Jessica was later also charged with two additional felonies, inducing an illegal abortion and performing an abortion as someone other than a licensed physician, to which she also pleaded not guilty. A 22-year-old man was issued a citation in relation to the case for allegedly concealing the death of another person, according to a May police press release. He pleaded no contest to a misdemeanor, according to a report from the Lincoln Journal Star.

The case was earlier reported by the Lincoln Journal Star, Forbes and Vice.

Nebraska currently prohibits abortions after 20 weeks, a law that has been in place since before Roe v Wade was overturned. Celeste Burgess was around 28 weeks pregnant when her pregnancy ended, court documents allege.

Although the Burgesses were charged before Roe v. Wade was rolled back — and the protection would not have applied to the women’s actions following the end of the pregnancy — the case demonstrates how private information such as direct messages on social media could be used to enforce laws prohibiting abortion. In 2018, a Mississippi woman was also indicted by a grand jury for second degree murder after an at-home pregnancy loss, after law enforcement pointed to her internet search results such as “buy abortion pills,” although the charges were ultimately dropped.

Captain Michael Bauer of the Norfolk Police Division said in an email to CNN Business that officers and detectives may not comment on cases outside of court.

Following the Supreme Court’s June ruling, tech giants largely avoided saying how they would respond to law enforcement requests for data that could lead to the prosecution of abortion seekers or providers — even as some of those same companies pledged to help cover travel costs for their own employees who need to travel to obtain legal abortion services. Asked in June, companies including Amazon, Apple, Google, Lyft, Facebook-parent Meta, Microsoft, Uber, Snap, TikTok and Twitter either didn’t respond, declined to comment or didn’t directly answer questions about how they would handle data requests targeting abortion-seekers.

In many cases, tech platforms may have little choice but to respond to legal requests for information. Tech companies have broadly said they comply with government data requests so long as they are consistent with existing laws. Now, the rollback of federal abortion protections, combined with the passage of new legislation in numerous states restricting abortion, could make it difficult for platforms to fight certain data demands related to abortion investigations.

In June, Meta responded to questions about law enforcement requests for data by directing CNN Business to its transparency center and said the company requires government requests to be consistent with the law and with the company’s own data policies. “If we determine that a government request is not consistent with applicable law or our policies, we push back and engage the governmental agency to address any apparent deficiencies. If the request is unlawful (for example, overly broad, or legally deficient in any way), we will challenge or reject the request,” the company states.

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–CNN’s Brian Fung contributed reporting.