With the release of the decision in Dobbs v. Jackson, questions regarding enforcement activity in states that restrict or ban abortion by statute have been raised and have remained mostly hypothetical. The frequency and scope of future enforcement activity remains unknown. Given the variety of laws now in effect in restricted and ban states, and that enforcement of such laws is subject to state prosecutorial discretion as well as the prevailing political climate, enforcement initiatives are expected to vary by state.
One of the first enforcement actions post-Dobbs is currently occurring 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 regards to the type of evidence that can be obtained to build a case against those allegedly involved with obtaining unlawful abortions – including enlisting tech companies to provide key evidence and using medical records to build a case.
Under Nebraska state law, individuals who perform or induce or attempt to perform or induce an abortion can be held criminally liable. Providing an abortion after 20 weeks is a Class IV felony and individuals who aid or abet the pregnant woman in the commission of a self-induced abortion are also subject to charges of reckless endangerment. The only individual permitted in the state of Nebraska to perform an abortion is a physician.
This Nebraska enforcement action involves a then-17-year-old teenager from Nebraska, who became pregnant around March 2022, and her mother. Prosecutors allege that the mother and daughter purchased medication online to induce the daughter’s abortion. While the Nebraska law was enacted in 2010, however, the prosecutor handling this case has reportedly stated that it was the first time in the State that anyone has been charged for illegally performing an abortion after 20 weeks. Though the activity in this case happened before the release of the U.S. Supreme Court’s decision in Dobbs, attention is being paid to cases like this one where an abortion is involved as Dobbs has opened the door for this type of criminal enforcement activity.
The Norfolk Police Department reportedly received a tip that the teenager had a miscarriage in April 2022, which the teenager also stated when interviewed by police. After conducting interviews and reviewing the teenager’s medical records, the police department obtained a search warrant to acquire Facebook messenger messages between the teenager and her mother relating to the teenager’s pregnancy. Subsequently, on June 15, 2022, the Norfolk Police Investigations Unit filed an Affidavit in Support of a Search Warrant to obtain electronic devices, medications, and other property in the control of the mother and daughter. Attached to that affidavit are messages provided by Facebook, which allegedly indicate that the mother instructed her daughter on how to take medication to induce an at-home abortion. The Facebook messages, along with the teen’s medical records and the interviews, were used as evidence to build a case against the mother, and subsequently charge the mother with felony abortion-related charges after the Dobbs decision was issued.
The daughter was charged as an adult for moving, concealing or abandoning a body, concealing the death of another person, and false reporting. The mother was charged for the same counts as her daughter, in addition to performing, inducing, or attempting to perform or induce an abortion beyond 20 weeks and performing an abortion when she was not a licensed physician in violation of Nebraska law. These latter felony abortion-related 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 kicked in. An adult male, age 22, was also charged with helping dispose of the fetus. He pleaded no contest to a misdemeanor and will be sentenced later in August.
This Nebraska action is important because it is one of the first examples of criminal anti-abortion enforcement following the decision in Dobbs. 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 individuals involved in such activity. Though Nebraska has targeted individuals who assisted in terminating the teenager’s pregnancy in this case, it is important to consider how future cases may use similar forms of evidence in prosecuting medical providers and health care entities, among others.
Epstein Becker & Green, P.C. will continue to monitor developments related to this case, and others. Should you have any questions about this recent enforcement action, the impact of Dobbs, or related topics, please reach out to the authors of this post, or the Epstein Becker & Green, P.C. attorney who regularly assists you.
*Kyla Portnoy, a 2022 Summer Associate (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.