"In this particular case, here's the audacity: Self-managed abortion is not even a crime in fucking Nebraska," said one rights advocate.
Amid a wave of right-wing efforts to quash abortion rights across the United States, a Nebraska judge on Friday sentenced Jessica Burgess to two years in prison after helping her teenage daughter end her pregnancy and bury the remains in early 2022.
Police have said that over two years ago, then-17-year-old Celeste Burgess took abortion pills—provided by her mother—at approximately 29 weeks pregnant and gave birth to a stillborn fetus, which the pair burned and buried in Norfolk, Nebraska.
Celeste Burgess was sentenced to 90 days behind bars and released earlier this month. Tanner Barnhill, who pleaded no contest to attempting to conceal a death for helping with the burial, was sentenced to nine months of probation and 40 hours of community service.
Jessica Burgess, who took a plea deal, faced up to five years in prison. She pleaded guilty to providing an abortion after 20 weeks of gestation, tampering with human remains, and false reporting. As Jezebelnoted, the 42-year-old was charged even though the state's 20-week ban that was in effect at the time applied to "licensed abortion providers, not people self-managing their own terminations."
As Rafa Kidvai, director of If/When/How's Repro Legal Defense Fund—which is not representing Jessica Burgess—put it to Jezebel, "In this particular case, here's the audacity: Self-managed abortion is not even a crime in fucking Nebraska."
"None of this is about justice or safety or someone's health or society being better or kinder or safer—this is about control from the state," Kidvai argued. "Everything is a distraction, including conversations around gestational age... They're distracting you constantly by telling you that your individual choices are the problem, not the systems that keep you oppressed."
The Appeal reported Friday that "abortions after 21 weeks rarely occur within the United States, accounting for just 1% of all abortions. It is unclear when Celeste first knew she was pregnant. Police say Celeste, then 17, got an ultrasound showing she was 23 weeks pregnant on March 8, 2022."
"That same month, police say Jessica Burgess ordered abortion pills online. But the medication took about six weeks to arrive," the outlet added. "[Celeste] Burgess stated in court that she wanted to end her pregnancy because she was in an abusive relationship and did not want to share a child with the man who impregnated her."
While Celeste Burgess' stillbirth occurred a couple of months before the U.S. Supreme Court overturned Roe v. Wade, abortion rights advocates have connected the Nebraska mother and daughter's cases to a broader assault on reproductive freedom since the right-wing justices' Dobbs v. Jackson Women's Health Organizationdecision.
Nebraska is among several states that have tightened abortion restrictions since June 2022. In May, Republican Nebraska Gov. Jim Pillen signed a bill banning abortion at 12 weeks of pregnancy, with exceptions for rape, incest, and to save the life of the pregnant person—a measure which has taken effect but that rights group are fighting in state court.
The Burgesses' cases have also heightened concerns about digital communications, given that police obtained and Facebook parent company Meta complied with a search warrant for their private messages. Further, there are rising fears that U.S. law enforcement may eventually try to use new laboratory methods allegedly developed by researchers in Poland—which has outlawed most abortions—to detect medication commonly used to end pregnancies in biological specimens.
Across the United States from 2000 to 2020, "at least 61 people were criminally investigated or arrested for ending their own pregnancies or helping someone else do so," according to a report released this month by Pregnancy Justice and other groups. From 2006 to 2020, "more than 1,300 people were arrested in relation to their conduct during pregnancy," including people who experienced miscarriages and stillbirths but were suspected of self-managing abortions.
Emma Roth, senior staff attorney at Pregnancy Justice, told The Appeal that "even if the state's law does not criminalize abortion itself, prosecutors will still seek other creative ways to try to incarcerate, shame, or make a case out of that person."
"Prosecutors will charge anything that they can think of when what they're actually trying to criminalize is what they view as immoral conduct," Roth stressed. With the Burgesses, she said, "the prosecutor's whole case was about shaming somebody for being a young teenager and having an abortion later on in pregnancy. These prosecutions create a culture of fear."
Nebraska is one of multiple U.S. states where reproductive rights advocates are currently working to put a question on 2024 ballots regarding an amendment to the state constitution that would protect the right to abortion.