Although there is no evidence that Fisher took the pills – court records only say that she “apparently” bought them – her search history helped prosecutors charge her with “killing her toddler,” identified in the original indictment as “Baby Fisher.” The 2017 case is one of the few in which US prosecutors have used text messages and online searches as evidence against women facing criminal charges related to the termination of their pregnancies.
Since the Supreme Court struck down the benchmark Roe vs. Wade June 24 ruling – opening the door for states to ban abortion from the moment of conception – privacy experts have warned that many other pregnant women and their abortion providers could find themselves in similar circumstances. While some worry about the data kept by rule trackers and other specialized apps, the case against Fisher shows that simple search histories can pose huge risks in a post-deer world.
“A lot of people google abortions and then choose to go through with their pregnancy,” said Laurie Bertram Roberts, a spokeswoman for Fisher. “Thought crimes are not the thing. You’re not supposed to be able to be charged for what you thought. Fisher declined to comment.
Looking for an abortion? Here’s how to avoid leaving a digital trail.
Despite growing concerns that the complex web of data collected by fertility apps, tech companies and data brokers could be used to prove a violation of abortion restrictions, in practice, police and prosecutors turned to more readily available data – gleaned from text messages and searches. history on phones and computers. These digital recordings of ordinary lives are sometimes handed over voluntarily or obtained with a warrant, and have provided a gold mine for law enforcement.
“The reality is that we do absolutely everything on our phones these days,” said Emma Roth, attorney for the National Advocates for Pregnant Women. “There are many, many ways law enforcement can uncover a person’s journey to seek an abortion through digital surveillance.”
The abortion debate in the United States has long centered on the definition of “fetal viability,” the time at which a fetus can survive outside the womb, which experts say is typically about 24 weeks. The vast majority of abortions in the United States occur long before this point. Nearly 80% of abortions reported to the Centers for Disease Control and Prevention take place within the first nine weeks, according to 2019 data.
Below Deer, the right to abortion before fetal viability is guaranteed. In Dobbs v. Jackson Women’s Health Organizationthe Supreme Court rejected this criterion and opened the way for states to restrict access to abortion much earlier in pregnancy.
Women were punished for interrupting their pregnancies for years. Between 2000 and 2021, more than 60 cases in the United States involved a person being investigated, arrested, or charged with allegedly terminating their own pregnancy or assisting someone else, according to an analysis by If/When/How, a reproductive justice nonprofit. If/when/how estimates the number of cases may be much higher, as it is difficult to access court records in many counties across the country.
A number of these cases relied on text messages, search history, and other forms of digital evidence.
Digital evidence played a central role in the case of Purvi Patel, an Indiana woman who, according to the National Advocates for Pregnant Women in 2015, was the first woman in the United States to be charged, convicted and sentenced for “feticide” by terminating her own pregnancy. . The state’s evidence included texts Patel had exchanged with a friend from Michigan, in which she discussed her intention to take pills that could induce an abortion, according to court records.
Prosecutors also cited her web history, including a visit to a webpage titled “National Abortion Federation: Abortion After Twelve Weeks.” On his iPad, police found an email from InternationalDrugMart.com. Detectives were able to order mifepristone pills and misoprostol pills from this website without a prescription, according to court records.
Patel was sentenced to 20 years in prison, but was later released after her conviction was overturned, according to The Associated Press. The Indiana Court of Appeals ruled that the state’s “feticide” law was not meant to be used to prosecute women for their own abortions.
Patel did not respond to a request for comment. One of his lawyers declined to comment.
Cases like Patel’s show how different types of digital evidence can be used to build a case against someone terminating a pregnancy, said Corynne McSherry, chief legal officer of the Electronic Frontier Foundation. She said a person seeking an abortion cannot be solely responsible for considering the risks of leaving a digital trail.
“It can be hard to think about digital privacy first when you have other things you’re worried about,” McSherry said. She also said that given the history of surveillance of marginalized communities in the United States, there may be racial disparities in the role digital evidence plays in criminalizing abortion. Fisher is black and Patel is Native American.
OK, Google: to protect women, collect less data on everyone
McSherry said tech companies need to play a bigger role in protecting reproductive health data. Google announced on Friday that it would delete location history when users visit an abortion clinic. Governments could also play a role through laws protecting privacy. Healthcare workers and friends are also sometimes required to provide evidence, McSherry added.
“Privacy is a team sport – when you take steps to protect your own privacy, you are also taking steps to protect the community,” she said.
In Fisher’s case, a grand jury charged her with second-degree murder after the state medical examiner determined that the baby was born alive and died of asphyxiation. Fisher spent several weeks in jail before the district attorney convened a new grand jury, which declined to press charges after hearing evidence that the test was used to establish a live birth. was outdated and unreliable.
Many activists have expanded their digital precautions as a way of life, realizing that routine data could prove problematic. Activists in Europe take extra precautions when working with women in Poland, where abortion is severely restricted. In 2020, a Polish court barred procedures even for fetal abnormalities, one of the last remaining circumstances in which abortion had been permitted.
Groups like Abortions Without Borders filled the void, helping pregnant women travel to other countries with less restrictive laws and getting activists from other countries to send abortion pills to Polish women. Polish laws allow a woman to have an abortion, for example by taking a pill, but prohibit anyone from helping her access the procedure.
Activists are also using virtual private networks, which can minimize browsing data collected, and encouraging Polish women to contact them on encrypted channels like Signal. They delete all online conversations after the person has had the abortion and warn the person not to post their experiences on social media, after some were harassed online. An organization that provides funds for Poles to get the procedure in Germany pays abortion clinics directly, rather than providing funds to patients, to ensure there are no digital records.
Lessons from Poland, the other developed country that restricts the right to abortion
And there is a new worry on the minds of European abortion activists: the introduction of what they describe as a “pregnancy register” in Poland. The Polish government approved a measure last month that requires doctors to register more patient information in a central database, including data on pregnancies.
The stakes have risen since the arrest of Justyna Wydrzyńska, a Polish activist who runs a hotline for the organization Abortion Dream Team. She is on trial, facing three years in prison, for allegedly providing abortion pills in 2020 to a woman who said she was a victim of domestic violence.
Wydrzyńska was arrested after the woman’s partner reported her to the authorities. Police confiscated Wydrzyńska’s computer, along with her children’s devices, during the investigation. Wydrzyńska could not be reached for comment for this story, but has previously told the Post that the case has not deterred her from activism.
“Our safety is actually also a matter of solidarity,” said Zuzanna Dziuban, who is part of the Abortion Without Borders network which helps Polish women get to abortion clinics in Berlin. to help.”
Razzan Nakhlawi contributed to this report.