ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Tuesday, September 26, 2023

Woman Sentenced for Assisting in an Abortion, and Yes, There's a Contracts Angle

Mifepristone Molecule

Susan Rinkunas at Jezebel reports that Jessica Burgess accepted a plea deal, and a Nebraska court sentenced her to two years in prison for assisting her daughter in getting pills that helped the daughter end her pregnancy at 29 weeks.  The daughter was charged as an adult and was sentenced to ninety days in jail (she served 53) and two-years' probation.  Ms. Burgess pled guilty to tampering with human remains, false reporting, and abortion after 20 weeks’ gestation.  In exchange, prosecutors dropped two other charges. 

It is not clear how the authorities learned of the abortion, but one crucial bit of information was private messages between mother and daughter exchanged on Facebook.  As Jezebel reports,

Police obtained a warrant for Facebook messages between the mother and daughter and Facebook parent company Meta complied, providing the messages in which they allegedly discussed ending Celeste’s pregnancy with pills. 

January 6thPrior to the warrant served on Facebook, prosecutors also somehow obtained medical records revealing the daughter's pregnancy.  How they did so is not clear.  According to Jezebel, while Nebraska at the time prohibited medical professionals from performing abortions after twenty weeks, only three states, including mine, but not including Nebraska, prohibit self-managed abortion.  So, the prosecutor was investigating something that was not a crime, and Ms. Burgess pled guilty under a criminal statute that did not apply to her.

But what matters to us of course are Facebook's Terms of Service.  I recently reviewed Orin Kerr's work about Terms of Service and the Fourth Amendment.  My concern with Professor Kerr's work is that I think he downplays the ways in which users of social media sites diminish their privacy protections.  In that context, I find it striking that Facebook immediately complied with the warrant in the Nebraska abortion case.  By contrast, as reported in The Washington PostTwitter paid $350,000 for dragging its feet in complying with a subpoena in connection with the January 6th case (above left) for Donald Trump's direct messages on the site.  In the end, even a former President has no way to protect his private messages once he shares them with a social media site.  It seems that Facebook complied with the Nebraska subpoena in a context where the illegality of the underlying conduct was much less clearly established, given that hundreds of people have already been convicted or pled to criminal charges in connection with the January 6th case.

Stay safe out there people.  If you are a woman, don't get pregnant.  Learn from the Spartan Women.  And if you do, know that your should not have any expectation of privacy if you communicate, even privately, using social media.

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