How Online Searches & Texting Has Landed Some Seeking Abortions in Jail
An important article was recently published by Fast Company highlighting how the internet has both helped women obtain access to medical abortion, while also criminalizing and punishing them for the practice at the same time; largely due to how quickly some states are diverging from Roe v. Wade in their criminal abortion laws. While some of these bans are unquestionably unconstitutional, they still land a number of women in jail each year; in part due to prosecutors misusing feticide laws, which were passed in order to protect pregnant women against assault and battery, not to punish pregnant women. In this endeavor, it is the very technology that these women have turned to for help that is facilitating the prosecution against them: Internet search histories and texting friends and family. Prosecutors are using browsing history and text messages more and more as evidence of intent, while, without it, they are essentially left piecing together cases by relying on circumstantial evidence.
Using Technology Against You: Know The Tools & Your Rights
It is crucial for people to realize that digital devices are not safe to share with law enforcement or anyone else who could be connected to law enforcement, such as doctors or nurses; that they do need a search warrant to access these devices; and that law enforcement should not be provided with access to your phone without you first consulting a criminal defense attorney. In addition to basic internet/Google and text searches, another controversial technique that is being increasingly used by law enforcement is called “geofencing,” where GPS sends messages directly to your phone when you enter a designated area. The technique presents a host of Fourth Amendment issues, as it requires a company like Google to search for every existing account, then determine which records match particular time and space parameters in a warrant, and when there is a strong GPS signal, a device’s location can then be estimated within approximately 20 meters.
Racial Profiling & Evidence Reliability Issues
A majority of cases that criminalize self-managing abortions or having stillbirths target women of color who have taken health care into their own hands largely because they had no other choice. The first woman to be arrested, prosecuted, and convicted for a stillbirth was a black woman in 2001, and in 2015, another black woman was sentenced to death after delivering a stillborn fetus because she informed social workers at the hospital that she had purchased the abortion pill online.
What is also of concern is that some state medical examiners use a controversial and unreliable test known as the “lung flotation test” – a test developed in the 1600s – to determine whether a baby was born alive or dead, and this directly affects whether prosecutors decide to charge some women with murder.
New York’s New Abortion Law: If You Have Questions or Concerns, Contact A Defense Attorney
Prior to the passage of the Reproductive Health Act here in New York in 2019, state law banned third-trimester abortions unless they were necessary to save the life of a pregnant woman. However, even under the new law, if abortion occurs after 24 weeks of pregnancy, questions arise that could lead to issues. In addition, the law specifies that health care practitioners can perform abortions and remains silent as to what happens when it comes to self-administered medical abortion pills.
There is no question that people are going to be increasingly arrested in connection with abortion. If you have been charged with a federal or state crime that is protected by your civil rights, you need to speak with an experienced New Jersey criminal defense attorney right away. At the office of Phillip J. Murphy, we have been serving clients for more than 25 years in successfully defending their rights. Contact us today to schedule a free consultation.
Resource:
americamagazine.org/rha2019
lawfareblog.com/do-geofence-warrants-violate-fourth-amendment
fastcompany.com/90468030/how-an-online-search-for-abortion-pills-landed-this-woman-in-jail
