A CRIMINAL abortion case that's using Facebook messages as evidence has stirred fears that this will be the new norm after Roe v. Wade was overturned.
Celeste Burgess, her mom Jessica and Tanner Barnhilll were arrested after they allegedly attempted to burn and bury a stillborn infant, according to a criminal complaint filed in Madison County, Nebraska.
All three were charged in June with the alleged attempts to burn and hide the stillborn infant's body after Celeste unexpectedly gave birth in the shower, according to court documents.
Jessica, 41, and her daughter Celeste, who turned 18 in June and is being charged as an adult, pleaded not guilty. Barnhill pleaded no contest to a misdemeanor charge.
A month later, the case became a larger social issue after Jessica was charged with inducing an illegal abortion and performing an abortion as someone other than a licensed physician.
She pleaded not guilty to both of those charges, which were filed after a search warrant on Facebook came back with messages between Celeste and Jessica that appear to show the teen's mom buying her daughter "abortion pills" and telling her how to take them.
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The alleged at-home abortion happened at 23 weeks, according to the criminal complaint. Nebraska law limits abortions to the first 20 weeks.
This case started before the Supreme Court overturned Roe v Wade, but it still has created a sense of anxiety about how abortion cases will be prosecuted.
Amani Wells-Onyioha, a political expert and civil rights advocate, told The Sun that "Repealing Roe v Wade was only the beginning of US institutions trampling on people's rights to privacy."
"Now we are seeing it taken to new extremes, as officers attempt to prosecute women for choosing what to do with their bodies," she said.
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"Using Facebook data to conduct abortion investigations is not only aberrant but also a complete and total violation of privacy that raises questions about the grounds corporations have in protecting their users' rights."
Meta, Facebook's parent company, issued a statement on August 9 clarifying the search warrants were part of a police investigation into the alleged burning and burial of a stillborn infant.
"We received valid legal warrants from local law enforcement on June 7, before the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.
"The warrants did not mention abortion at all. 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 Sun asked Meta's spokesperson Any Stone what Meta would've done if the warrants mentioned abortion.
Stone hasn't responded.
'DRAWING THE LINE'
Wells-Onyioha questioned Meta's statement, asking "Where does the company draw the line between politics and business?"
"Mark Zuckerberg has been accused of being politically conservative after Facebook was deemed a ‘right-wing echo chamber’ during the 2020 election cycle.
"Meta claimed this was not intentional, but because right-wing content performed higher in the algorithm than other types of content.
"Mark was also called out for private meetings with conservative party leaders in 2019, which was questionable, to say the least.
"With these facts in mind, is it possible that Meta is so willing to cooperate with authorities and violate the privacy of its users because of their own political bias?
"Or are they just following subpoena and doing as they are told? Who has the final say in this matter?"
She believes the social media giant could fight harder for women's privacy "if they wanted to."
'WHO HAS THE FINAL SAY?'
Turning over social media posts or private messages as part of a search warrant isn't something new, renowned law expert Bennett Gershman told The Sun.
"People can not expect privacy when using social media," said Gershman, a longtime professor at New York's Elisabeth Haub School of Law at Pace University.
"They may believe their conversations are private, but that expectation is not reasonable.
"Police and prosecutors have used Facebook and social media platforms for many years to obtain evidence of a crime. Social media evidence can be very incriminating.
"The fact that it's involved in an abortion case is an unusual twist."
He said social media is an open platform; unlike phone calls which require wiretaps.
'ELECTRONIC EVIDENCE'
The same goes for text messages and emails, he said.
The key is to authenticate that the "electronic evidence" is an accurate transcription between the accused, he said.
"The important thing is authentication in court," the law professor said.
"You have to prove that it's actually them and not imposters. Some courts are debating how much evidence is needed to authenticate. That's the danger for prosecutors using digital evidence.
"But right now, in this case, you have the evidence. At a trial, it would be up to a jury to determine if it's authentic."
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Because of digital evidence's prevalence in court in other criminal cases, Gershman said, "I think this is what you're going to see" in future abortion criminal cases.
"This kind of evidence may be available to prosecutors. It's probably going to be more pervasive in using social media evidence to prove people are planning to have an abortion."
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