Norfolk Case Highlights Post-Roe Privacy, Abortion Issues

A law professor said a controversial abortion case in Norfolk highlights the limits of online privacy and suggests some legal questions raised by the overturning of Roe v. Wade.

Charges have been filed against a Norfolk Nebraska teenager and her mother for obtaining medication to abort a 23-week old fetus, then trying to burn it and bury the remains. Nebraska law prohibits abortions 20 weeks after fertilization.

Among the items of evidence in the case are Facebook messages between the teenager and her mother, which has raised concerns about online privacy. Mailyn Fidler, an assistant professor at the University of Nebraska College of Law, said those concerns are well-founded.

“Pretty much anything you do online, law enforcement can have access to if they, you know, get a probable cause search warrant. So, Facebook messages, internet browsing history, your Google searches, text messages, all of this stuff is fair game,” Fidler said.

Fidler said the best thing people can do to protect their privacy is using end-to-end encryption, which Facebook offers, although it’s not the default setting.

Facebook’s parent company, Meta, has said the search warrants it got in the Norfolk case did not mention abortion, but that authorities were investigating the alleged illegal burning and burial of a stillborn infant.

Fidler said cases involving obtaining abortion pills online and out-of-state are likely to become common.

“We will see this kind of search warrant go to tech companies to gather evidence about that kind of thing, if states are interested in prosecuting women for that. I think we're going to see a lot of litigation on that to determine how much a state can regulate interstate commerce,” she said.

And she said the case points out a difficulty in making laws.

“You have horrible facts. And then you have laws that are supposed to apply in every situation. And so it can be tricky to separate facts from the law, but I encourage folks to do that because you never know what the next circumstance is going to be,” she said.