OMAHA — Evidence against a Norfolk, Nebraska, mother and her teen in a case alleging an illegal abortion is opening a new digital front in the national battle over abortion.

Police allege in court documents that Celeste Burgess, then 17 years old, told police in April that she had suffered a miscarriage in a bathtub at her home. She said she and her mom buried the stillborn, the documents show.

Investigators seeking a search warrant said they later learned that the mother, Jessica Burgess, had bought the oral medication online to end her daughter’s pregnancy. That information was gathered in part from private Facebook messages the Burgesses exchanged.

Criminal charges against the two brought by the Madison County Attorney’s Office are among the first nationally to use Facebook data subpoenaed by police against a woman seeking an abortion.

After the U.S. Supreme Court reversed Roe v. Wade in June, national abortion-rights advocates argued that law enforcement agencies might use technology to track and prosecute women seeking abortions.

A Meta spokesman told Forbes that the search warrant they received in June, before the Roe reversal, did not mention abortion. Meta is the parent company of Facebook and Instagram.

Madison County Attorney Joe Smith told the Lincoln Journal Star that this was the first time in his 32 years as a prosecutor that he had filed such charges in an abortion-related case. 

Police say the abortion occurred later than allowed under Nebraska law. The teen took the medication when she was more than 29 weeks pregnant, authorities allege. Under Nebraska law, abortions are legal up to 20 weeks.

Abortion pills are typically used within 11 weeks of conception.

State Sen. Megan Hunt of Omaha said Tuesday that Nebraska, like a number of other states, is “prosecuting people for their pregnancy outcomes.” She said the Norfolk daughter and her mother need “help and support … not prosecution.”

“True justice would mean ensuring that people have all the resources and the support they need to make decisions about whether they want to have a family, when they have a family, and how to support the families they have with dignity,” Hunt said. “How did we fail this young woman? That is a bigger question that we need to ask ourselves as a culture.”

Abortion opponents said questions about data privacy are a distraction from a possible crime. They said Tuesday that Nebraska’s abortion restrictions are working as intended.

Sandy Danek, president of Nebraska Right to Life, applauded police and prosecutors for enforcing the 20-week ban. Nothing, she said, will “remedy the tragedy of this event, where a baby has died and a mother is left with the wounds of abortion.”

“Nebraskans should be appalled (by) the lack of dignity given to this baby’s body. All Nebraskans deserve a respectful burial,” Danek said. “We hope the authorities will further investigate the source of the chemical cocktail used to kill this preborn child.”

Celeste, who is now 18, is being charged as an adult with removing, concealing or abandoning a human body, which is a felony, and with concealing the death of another person and false reporting, which are misdemeanors.

Her mother has been charged with three felonies: performing an abortion after 20 weeks; performing an abortion as a non-doctor; and removing, concealing or abandoning a human body. She also faces two misdemeanors: concealing a death and false reporting.

Police allege in court documents that both mother and daughter knew a drug being ordered online was intended to cause a miscarriage. The mother said she could not remember the name of the drug or what website she had ordered it from online.

Here is what the documents say Celeste and her mother wrote to each other on Facebook Messenger in April. The exchange has been edited for brevity:

Jessica: It came 2day

Celeste: Just the one or both

Jessica: Both

Jessica: What I ordered last month

Celeste: Are we starting it today?

Jessica: We can if u want the one will stop the hormones

Celeste: OK

Jessica: Ya the 1 pill stops the hormones an rhen (sic) u gotta wait 24 HR 2 take the other

Celeste: OK

Celeste: Remember we burn the evidence

Jessica: Yep

The Burgesses showed police where the fetus was buried, just outside of Norfolk. Authorities said in court documents that they recovered a fetus with evidence of “thermal injuries.”

Both women have pleaded not guilty. The mother, in a financial statement she made when applying for a public defender, said she lost her job because of what happened.

Local abortion rights advocates have been trying to help her hire a private lawyer.

Abortion is legal in 27 states, ranging from until 15 weeks in Florida to being legal throughout pregnancy in Colorado and three other states. A dozen states, including Minnesota, allow abortions until fetal viability. Nebraska allows abortions up to 20 weeks. Abortion is illegal or soon to be illegal in 16 states, including Oklahoma and South Dakota.

U.S. Rep. Mike Flood, R-Neb., author of Nebraska’s 20-week ban, said the law recognizes late-term abortion as “especially cruel and inhumane.”

Flood said he has “always supported commonsense restrictions on abortion.” He also has said he would support an outright ban on abortion in Nebraska and federally.

His opponent in November’s general election, State Sen. Patty Pansing Brooks of Lincoln, worked with other Democrats this year to filibuster Republicans’ effort to pass a full ban.

She had no immediate comment on the Madison County case.

This story was originally published by Nebraska Examiner, an editorially independent newsroom providing a hard-hitting, daily flow of news. It is part of the national nonprofit States Newsroom. Find more at nebraskaexaminer.com.

Author Profile: Aaron Sanderford