Hard Cases

A mom who helped her 17 yo daughter obtain abortion pills (& end her pregnancy) pled guilty to several charges.

Her daughter, who also pled guilty, will be sentenced soon.

So much for not punishing women, I guess. https://t.co/efg3pZqWxS

— Leah Litman - on threads🧵@ProfLeahLitman (@LeahLitman) July 10, 2023

I'm not going to try to Twitter debate like some guy from Reason did on that thread.  But, this is not run of the mill case.  I personally would not use it to make some general case.  It is not akin to multiple instances of women whose health was put at risk because their status was not deemed risky enough to have an abortion or some comparable case. 

This happened before Dobbs, but the facts make that of limited significance. Roe v. Wade protected the right to have an abortion before viability under the care of a physician.  There was also an exception after viability -- again under the care of a physician, even more important at that risky stage -- when the life or health of the woman is at risk. 

The mother got abortion pills -- which are supposed to be used much earlier -- for her teenage daughter, who aborted a 29-week-old fetus.  This is not even one of those borderline viability cases.  Not the only thing. The linked article notes:

A Nebraska mother pleaded guilty Friday to giving her 17-year-old daughter pills for an illegal abortion last year and helping to burn and bury the fetus.

The "medieval" thing (the tenor of some replies) is for the state to determine that parents have an obligation not to put their children at risk and then illegally dispose of bodies. 

To quote the linked Jezebel blog:

On Friday, she plead guilty to three charges (tampering with human skeletal remains, false reporting, and abortion after 20 weeks gestation) and the state dismissed the other two (concealing the death of another person and abortion by someone other than a licensed physician). She now faces up to two years in prison.

One person on the thread notes she helped someone get an abortion at 21 weeks.  Which is TWO MONTHS (I'm sorry ... come on) earlier. Also, it's a lot different than dangerous self-abortions and hiding the evidence.  Are we supposed to handwave illegally disposing of remains like this?  

If the mother -- with a lot more responsibility will face "up to two years," it is unclear what the daughter (who is being sentenced as an adult) will be liable for (her sentencing comes later).  An earlier article notes she pled not with the abortion itself but a "felony charge of concealing or abandoning a dead body."  Is that something we should handwave? 

The article notes the novelty of this thing, which involves Facebook chatter and other things:

Madison County Attorney Joe Smith has said it’s the first time he has charged anyone with illegally performing an abortion after 20 weeks, a restriction that was passed in 2010. 

It is perfectly appropriate for people to worry in the current environment that this will be a harbinger of more to come.  I also don't know the facts of why they waited so long to get an abortion (delays into the late second trimester are not rare in the case of teenagers but 29 weeks is much later than that).  The whole thing is likely to be one big tragedy.

I doubt it would be in the public interest to prosecute this woman severely.  OTOH, I don't know if it is warranted to not charge her at all.  This is not some early abortion.  She didn't even just help her daughter have a dangerous abortion.  She broke more laws.  If it wasn't abortion, we would be quite concerned if she helped her daughter do these things, including a dangerous medical procedure and destruction of evidence. 

The laws here are just.  It is just to require an abortion of this type to be done under the care of a physician [granting it fit under a Roe exception].  It is just to require reporting of disposal of stillborn births. The state is not acting unjustly, not acting like monsters or something, to deem this a problematic thing.  The prosecution of the daughter is borderline but I doubt she will get jail time for that.  I don't think she should.

People firmly note that Roe v. Wade was a compromise and then are angry when a rare outlier case like this comes up.  It's a bit too much.  It's at the very least a hard case.  I think we should recognize there are hard cases and have some humility and caution about them.  Avoid Twitter debating.

ETA: The teen ultimately was sentenced to ninety days in jail. I don't think she should have received prison time.  

This is such an unusual situation that it is hard to think there is a typical "going rate" (to reference an old criminal justice book I have).  But, there are many first offenders who do not get prison time for even violent crimes.  What does three months in jail do?  

The crime was done when she was 17 and under serious distress. She has basically been nationally scorned (including a photo of her crying in this case) and loss of privacy.  The criminal process requires a range of burdens and conviction can include let's say a year or two of probation with limits on her movements and general liberty.  You can even imagine home confinement.  OTOH, it is unclear how much she will actually serve.

I also don't like the NYT headline: "Nebraska Teen Who Used Pills to End Pregnancy Gets 90 Days in Jail."

So misleading. Yeah, some teen took pills at ten weeks or something and got jail time. How horrible.  A bit more there.  The subtitle adds to the uninformed disgusted responses ("Celeste Burgess, 19, and her mother, Jessica Burgess, 42, were charged last year after the police obtained their private Facebook messages.")  That just makes it a bigger violation of privacy.  Should keep the state out of health care!

Well, the state actually regulates health care.  There is this quote from a rights group.  Doesn't really work.  

“I am disturbed and appalled that, despite self-managed abortion not being illegal in Nebraska, prosecutors chose to punish a young person by wrongfully weaponizing their laws against them for allegedly ending their own pregnancy,” she said in a statement.

What is this "alleged" part?  Is there some doubt she aborted?  The abortion also was not "self-managed" -- her mother was involved at the very least.  And, should there not be laws against secretly disposing of the results of 29-week-old abortions or births?  Does the state not have a concern at that stage, past viability?  Roe v. Wade said they do.

It's a hard case and speaking in talking points isn't the appropriate thing. We should be upfront about what happened here and decide the appropriate path.  Jail time for the teen is not appropriate.  The state just ignoring it all?  I also do not think that is appropriate.  What message does it send to have this public, doing nothing in response to 29-week-old abortion (dangerous at that), and then have remains secretly buried?

To toss this special case on the pile of any number of wrongs involving blocking abortion access and health care is just wrong.