Can online services be used as evidence?

With the publication of the decision in Dobbs vs. Jackson, questions regarding enforcement activity in states that restrict or prohibit abortion by law have been raised and have remained mostly hypothetical. The frequency and scope of future enforcement activities remain unknown. Given the diversity of laws currently in place in restricted and prohibited states, and the fact that the enforcement of these laws is subject to the discretion of state attorneys as well as the prevailing political climate, the initiatives of application should vary from state to state.

One of the first post-Dobbs enforcement actions is currently taking place in Nebraska, where abortion is currently banned after 20 weeks. This recent enforcement action may help clarify what the post-Dobbs abortion landscape will look like in the near future, at least in terms of the type of evidence that can be obtained to build a case against those allegedly involved. in obtaining illegal abortions – including enlisting tech companies to provide key evidence and use medical records to build a case.

Under Nebraska state law, individuals who performing or inducing or attempting to perform or induce an abortion may be held criminally liable. Having an abortion after 20 weeks is a Class IV felony and persons who help or encourage the pregnant woman to commit a voluntary abortion are also subject to charges of reckless endangerment. The only person allowed in the state of Nebraska to perform an abortion is a doctor.

This Nebraska enforcement action involves a then 17-year-old Nebraska teenager, who became pregnant around March 2022, and her mother. Prosecutors allege the mother and daughter bought drugs online to induce the girl’s abortion. As the Nebraska law was signed into law in 2010, however, the prosecutor handling the case reportedly said it was the first time in the state that someone had been charged with illegally performing an abortion after 20 weeks. Although the activity in this case occurred before the publication of the United States Supreme Court’s decision in the Dobbs case, attention is drawn to cases like this where abortion is involved, because Dobbs opened the door to this type of criminal activity.

Norfolk Police Department reportedly received a tip that the teenager had a miscarriage in April 2022, which the teenager also said in a police interview. After conducting interviews and reviewing the teen’s medical records, the police department obtained a search warrant to acquire Facebook messenger messages between the teen and her mother regarding the teen’s pregnancy. Subsequently, on June 15, 2022, the Norfolk Police Investigation Unit filed a Affidavit in Support of a Search Warrant to obtain electronic devices, medicines and other goods under the control of mother and daughter. Attached to this affidavit are messages provided by Facebook, which allegedly indicate that the mother taught her daughter how to take medication to induce an abortion at home. The Facebook posts, along with the teenager’s medical records and interviews, were used as evidence to build a case against the mother and then charge the mother with criminal abortion charges after the Dobbs ruling was released.

The girl was charged as an adult with moving, concealing or abandoning a body, concealing the death of another person and making a false statement. The mother was charged with the same charges as her daughter, in addition to having performed, caused or attempted to perform or cause an abortion beyond 20 weeks and to have performed an abortion when she was not was not a licensed physician in violation of Nebraska law. These latest criminal abortion charges were added against the mother after the Facebook messenger messages were obtained pursuant to the search warrant, and after Dobbs was decided and the Nebraska law went into effect. . A 22-year-old adult male was also charged with assisting in the elimination of a fetus. He did not contest a misdemeanor and will be sentenced later in August.

This action in Nebraska is significant because it is one of the first examples of criminal enforcement of anti-abortion law after the Dobbs decision. This indictment demonstrates the types of evidence prosecutors will rely on when bringing criminal charges against individuals for actions related to now-illegal abortions, and how aiding and abetting laws can be extended to the individuals involved. in such activities. Although Nebraska targeted people who helped terminate the teen’s pregnancy in this case, it’s important to consider how future cases might use similar forms of evidence to sue medical providers and healthcare entities, among others.

*Kyla Portnoy, 2022 Summer Partner (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.

©2022 Epstein Becker & Green, PC All rights reserved.National Law Review, Volume XII, Number 224

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