Criminalizing Abortion Makes Cases Like Nebraska Teen’s More Common, Experts Warn

Update: On Friday, a Madison County District Court judge sentenced Jessica Burgess to two years in prison.

On Friday, a Nebraska judge will sentence Jessica Burgess after she pleaded guilty to helping her teenage daughter obtain abortion pills after 20 weeks of pregnancy and dispose of the remains in 2022.

A judge sentenced her daughter, Celeste, to 90 days in jail and two years of probation in July after Celeste pleaded guilty to one felony count of concealing or abandoning a dead body. Police began investigating the Burgesses before Roe v. Wade fell—when Nebraska had a 20-week abortion ban and only three abortion clinics statewide.

As states across the country adopt more and more restrictive abortion laws, reproductive justice experts warn cases like Jessica Burgess’s will only become more common.

Abortions after 21 weeks rarely occur within the United States, accounting for just one percent 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—meaning she was past the cutoff to obtain an abortion in Nebraska legally. That same month, police say Jessica Burgess ordered abortion pills online. But the medication took about six weeks to arrive. Police say the younger Burgess took the pills at 29 weeks. 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.

Even if Celeste knew she was pregnant sooner, getting care would have required the teen to travel to one of Nebraska’s three abortion clinics, as the state does not allow people to obtain abortion pills through telehealth. The Burgesses live in Norfolk, roughly 110 miles from the nearest abortion clinic. If the teen did know she was pregnant before 20 weeks and was able to make the two-hour journey to a clinic, she then would have had to listen to state-mandated counseling designed to discourage her from having an abortion—and wait an additional 24 hours back in Norfolk or at a hotel before getting the procedure. Celeste—who said in court that her family struggled financially and could not afford a funeral for her fetal remains—would then have had to pay for the procedure, which costs hundreds of dollars and is not typically covered by insurance in Nebraska.

Abortion opponents and prosecutors have painted the teenager as a monster for ending her pregnancy so late. But reproductive justice experts who spoke to The Appeal said the state’s draconian rules force people like Celeste into the exact situations conservatives claim to hate.

“Placing limits on when people can seek abortions often leaves people in a position where they’re chasing deadlines and moving from place to place,” said Farah Diaz-Tello, senior counsel and legal director for If/When/How, a nonprofit of legal professionals fighting for reproductive justice. “The network of care that existed is frayed beyond all belief. So more people are likely to be unable to get the care they need.”

Since Roe fell in June last year, 14 states have effectively banned all forms of abortion. In the South and Midwest, many contiguous states have outlawed the procedure, meaning people who need abortions must drive thousands of miles, buy plane tickets, or self-manage their abortions at home.

“For so many people in our society this isn’t even an option,” Diaz-Tello said. “People can’t get the time off or the money to access care in another state. These laws are disproportionately affecting people who are marginalized, people of color, and people who are surveilled by our legal system.”

Now, some states are criminalizing abortion beyond their borders. In April, Idaho—where nearly all abortions are illegal—enacted a so-called “abortion trafficking” law that bans anyone from helping a minor obtain abortion pills or travel to another state to get an abortion without parental consent. The law carries a two-to-five-year prison sentence. Advocates who are challenging the law in federal court say the measure violates the constitution by criminalizing activity that occurs in another state.

Earlier this month, the Washington Post reported that, with abortion completely banned in Texas, conservative activists are now targeting airports and roads to prevent people from getting abortion care in a state where the procedure remains legal. At least two cities and two counties in that state have passed ordinances making it illegal to transport anyone through their municipalities to end a pregnancy.

Meanwhile, in Alabama, state Attorney General Steve Marshall has claimed he can use conspiracy statutes to prosecute people who help others travel out-of-state to get an abortion. Abortion funds are challenging Marshall in federal court. Alabama bans virtually all abortions, even for victims of rape or incest.

Reproductive justice experts warn that Jessica Burgess’s sentencing Friday is a harbinger of things to come. Burgess’s case—and the actions of lawmakers in Idaho, Alabama, and Texas—show that prosecutors are ready to criminalize not only people who obtain abortions but also those who help them.

“Prosecutors don’t even need abortion statutes to criminalize pregnancy and its outcomes,” Emma Roth, senior staff attorney at Pregnancy Justice, said in an interview. “Prosecutors will charge anything that they can think of when what they’re actually trying to criminalize is what they view as immoral conduct.”

A report published this week by Pregnancy Justice found that pregnancy-related arrests have spiked in recent years. According to the report, police arrested nearly 1,400 people for actions related to their pregnancies during the 16 years from 2006 through June 2022—a substantial increase from the 413 pregnancy-related arrests in the prior three decades.

Most cases involved allegations of substance use, even when there was no harm to the fetus or infant. Nearly half of all cases occurred in Alabama. Prosecutors charged pregnant people with offenses such as child endangerment, substance possession, drug use, feticide, murder, manslaughter, legally unauthorized abortion, failure to report a birth or death, tampering with remains or abuse of a corpse, fetal assault, and drug delivery.

Prosecutors have spent decades finding novel ways to criminalize pregnant people. In 2011, Bei Bei Shuai ate rat poison in an attempt to end her own life. When she lost her pregnancy as a result, prosecutors in Indiana charged her with first-degree murder and attempted feticide. In 2018, a co-worker shot Marshae Jones in the stomach, causing her to miscarry at five months. Prosecutors charged her with manslaughter. In 2019, the state of Wisconsin appointed an attorney to the fetus of a woman using Suboxone, a drug used to help people with opioid use. The state did not give an attorney to the woman. She was subjected to civil confinement and lost her job as a result.

“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,” Roth said. Regarding the Burgesses, “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.”