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Prosecutors in states where abortion is now illegal could begin building criminal cases against providers

 Some legal experts fear that prosecutors will use intimate pieces of evidence, such as text messages and internet search history, to build their cases.
Image: Anti and Pro Abortion Rights Protest At the Supreme Court After Overturning Roe v. Wade
Abortion rights demonstrators comfort each other Friday after the Supreme Court decision overturning Roe v. Wade.  Stephen Voss / Redux Pictures

As the U.S. enters an era of diminished reproductive rights following the Supreme Court ruling that overturned Roe v. Wade, a path has been cleared for at least 13 states — those with “trigger laws” — to begin penalizing and prosecuting people who violate abortion bans. 

Bans are already in effect in Kentucky, Louisiana, South Dakota and Missouri, with at least nine other states expected to follow suit in days. 

While penalties vary, those states all now have laws that would charge abortion providers with some class of felony, with punishments that include fines, prison time and revocation of medical licenses. 

Some legal experts fear that prosecutors will use intimate pieces of evidence, such as text messages, internet search history and period tracking apps to build their cases, as well as, perhaps, information gathered from medical professionals.

And, though states with abortion bans have focused punishment on the providers and not those seeking or self-managing an abortion, women will still be in the line of fire, said Farah Diaz-Tello, senior counsel and legal director of If/When/How, a reproductive justice group. 

“We anticipate an increase in people being criminalized in spite of what the law says, because of the additional surveillance, stigma and scrutiny on pregnancy outcomes on people who are suspected to have had abortions,” she said. 

What would a criminal trial look like?

To build their cases, prosecutors, sometimes working hand in hand with law enforcement, will rely on “dragnet criminal surveillance tools” such as geofence warrants that seek information on a person’s whereabouts, online keyword searches, text messages and medical apps, said Emma Roth, a staff attorney with the National Advocates for Pregnant Women. 

Evidence can also include GPS data, purchasing history, social media activity and phone call records, she said. 

“These mass surveillance tools have the potential to sweep hundreds or thousands of people within their ambit and subject them to potential investigation and prosecution,” Roth said. 

Hospital staff and medical professionals who first report pregnant patients or new parents could also deliberately and unwittingly aid in prosecutions, she said.

“These individuals are weaponized as state actors and very frequently misunderstand what their legal obligations are with the mandatory reporting, these tips from medical professionals often start the criminal legal process,” she said. 

Between 2006 and 2020, there have been more than 1,300 cases in which women were arrested, detained or prosecuted in legal actions related to their pregnancies, which include abortion, according to the National Advocates for Pregnant Women, a legal-defense nonprofit organization that that works to protect the rights of pregnant and parenting women, including those who have abortions.

Some of those past cases could foreshadow how prosecutors might approach criminal suits.

Among them, the case of Purvi Patel, an Indiana woman who was sentenced to 20 years in prison in 2015 after she was accused of feticide and neglect of a child after allegedly inducing her own abortion. 

Prosecutors used text messages between Patel and a friend, which included a conversation about ordering pharmacy pills meant to induce an abortion, as evidence against her. 

An appeals court eventually reduced Patel’s sentence in 2016 to less time than she had served and she was released. 

In 2017, a Mississippi prosecutor indicted Latice Fisher, a mother of three, for second degree murder after she experienced a stillbirth. 

In that case, a prosecutor used internet search history at trial that showed Fisher had searched for terms like how to “buy abortion pills” and “misoprostol abortion pill,”  according to court filings. After a three-year legal battle, the charges against her were dropped.

“Pregnant people have been prosecuted for murder for experiencing a stillbirth, prosecuted for child endangerment even when they had perfectly healthy babies that didn’t have any any sort of adverse health outcomes, prosecuted for trying to seek medication abortion and all of this took place with Roe on the books,” said Emma Roth, a staff attorney with the National Advocates for Pregnant Women.

After the Supreme Court’s 5-4 vote to overturn Roe v. Wade, Roth said, she expects “that the number of prosecutions will just rise very dramatically.”

Mounting a defense

Nina Ginsberg, the immediate past president of the National Association of Criminal Defense Lawyers and co-author of the organization’s report on abortion criminality, said defense attorneys and public defenders will mount a variety of vigorous legal defenses against abortion prosecutions and have already begun thinking about strategies. 

She said one tool will be constitutional challenges, including arguing that certain evidence violates the Fourth Amendment, which protects people from unreasonable government searches and seizures. 

“If you get the phone then we will ask ‘was the seizure of the phone legal or is it beyond the scope? Is there probable cause to search for what they’re searching for?” she said. “The kind of constitutional challenges that are made to digital data or the collection of digital data in other contexts will apply here.” 

In addition to constitutional challenges, other cases have been countered through such experts as toxicologists, she said, who prove that drugs like methamphetamine do not cause harm to a fetus and do not cause a miscarriage. 

On Thursday, a day before the Supreme Court ruling was announced, dozens of lawyers, health care providers, child welfare workers and policymakers logged in to an online seminar put together by the National Advocates for Pregnant Women to discuss tools and strategies to combat criminalization of abortion. 

Concerns about the new legal landscape weren’t limited to people who would be defending those charged with crimes. 

“For many prosecutors, this is going to be a brand new area that they are going to be confronting,” said Beth Merachnik, a former prosecutor and project director at the Association of Prosecuting Attorneys, who was on the call. 

“There’s a lot going on out there about prosecutors making statements about not going forward or prosecuting these cases and that’s important, but I also want to point out that it’s important to also consider what are the potential ramifications for that and in certain jurisdictions, it can happen that if a prosecutor declines to prosecute a case, another agency, such as [that of] the attorney general can take that case,” she said. “We have other examples where the governor has stepped in on other capital cases and through executive order, sent capital cases from one state’s attorney to another and legislators can take away prosecutorial discretion, they can legislate against it in their statutes,” she said. 

What’s most important right now is to keep lines of communication open with partners, allies and with communities to understand what’s going on, she added. 

Emily Galvin-Almanza, a former public defender and co-founder of Partners for Justice, a nonprofit group that works to train public defenders, said one of the main goals on the defense side will be training on criminal defense and mitigation but also education on the science and medical side that will undoubtedly come up at trial. 

Ginsberg, with the National Association of Criminal Defense Lawyers, believes there are not enough defense attorneys who are ready for what may come with criminal prosecutions. 

Training lawyers is crucial, but so is starting to identify and build a list of experts who have the knowledge and who are willing to testify in these kinds of cases, she said. 

“They did this in the war on drugs with massive numbers of prosecutions,” she said. “You see how energized the segment of the anti abortion population is so it’s safe to assume the same thing could happen with abortion prosecutions.”