While there is no evidence Fisher took the pills — court records indicate only that she “apparently” bought them — her search history helped prosecutors charge her with “killing her infant child,” identified in the original indictment as “Baby Fisher.” The 2017 case is one of a handful in which American prosecutors have used text messages and online research as evidence against women facing criminal charges related to the end of their pregnancies.
Since the Supreme Court on overturned the landmark Roe v. Wade ruling on June 24— opening the door to state bans on abortion from the moment of conception — privacy experts have warned that many more pregnant people and their abortion providers could find themselves in similar circumstances. While some fret over data maintained by period trackers and other specialty apps, the case against Fisher shows that simple search histories may pose enormous risks in a post-Roe world.
“Lots of people Google about abortion and then choose to carry out their pregnancies,” said Laurie Bertram Roberts, a spokeswoman for Fisher. “Thought crimes are not the thing. You’re not supposed to be able to be indicted on a charge of what you thought about.” Fisher declined to comment.
Despite mounting concerns that the intricate web of data collected by fertility apps, tech companies and data brokers might be used to prove a violation of abortion restrictions, in practice, police and prosecutors have turned to more easily accessible data — gleaned from text messages and search history on phones and computers. These digital records of ordinary lives are sometimes turned over voluntarily or obtained with a warrant, and have provided a gold mine for law enforcement.
“The reality is, we do absolutely everything on our phones these days,” said Emma Roth, a staff attorney at the National Advocates for Pregnant Women. “There are many, many ways in which law enforcement can find out about somebody’s journey to seek an abortion through digital surveillance.”
The debate over abortion in the United States has long centered on the definition of “fetal viability,” the point at which a fetus can survive outside the womb, which experts say is generally about 24 weeks. The vast majority of abortions in the United States occur long before that point. Nearly 80 percent of abortions reported to the Centers for Disease Control and Prevention are in the first nine weeks, according to 2019 data.
Under Roe, the right to abortion before fetal viability was guaranteed. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court rejected that test and cleared the way for states to restrict access to abortion much earlier in pregnancy.
Women have been punished for terminating pregnancy for years. Between 2000 and 2021, more than 60 cases in the United States involved someone being investigated, arrested or charged for allegedly ending 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, because it is difficult to access court records in many counties throughout the country.
A number of those cases have hinged 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 the National Advocates for Pregnant Women said in 2015 was the first woman in the United States to be charged, convicted and sentenced for “feticide” in ending her own pregnancy. The state’s evidence included texts Patel exchanged with a friend from Michigan, in which she talked about her plans to take pills that can induce abortion, according to court records.
Prosecutors also cited her web history, including a visit to a webpage entitled “National Abortion Federation: Abortion after Twelve Weeks.” On her iPad, police found an email from InternationalDrugMart.com. Detectives were able to order mifepristone pills and misoprostol pills from that 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 wasn’t meant to be used to prosecute women for their own abortions.
Patel did not respond to a request for comment. One of her lawyers declined to comment.
Cases like Patel’s show how different types of digital evidence might be used to build a case against someone terminating a pregnancy, said Corynne McSherry, the legal director of the Electronic Frontier Foundation. She said someone seeking an abortion cannot be solely responsible for considering the risks of leaving a digital trail.
“It may be difficult to think about digital privacy first when you have other things you’re worried about,” McSherry said. She also said given the history of surveillance of marginalized communities in the United States, there may be racial disparities in the role that digital evidence plays in the criminalization of abortion. Fisher is Black, and Patel is Indian American.
McSherry said tech companies need to play a greater role in protecting reproductive health data. Google on Friday announced it would delete location history when users visit an abortion clinic. Governments could also play a role through laws protecting privacy. Health care workers and friends also are sometimes forced to provide evidence, McSherry added.
“Privacy is a team sport — when you take steps to protect your own privacy, you also take steps to protect the community,” she said.
In Fisher’s case, a grand jury charged her with second-degree murder after the state’s medical examiner determined that the baby had been born alive and died from asphyxia. Fisher spent several weeks in jail before the district attorney summoned a new grand jury, which declined to bring charges after hearing evidence that the test used to establish a live birth was antiquated and unreliable.
Many activists have expanded their digital precautions as a way of life, understanding that routine data might prove problematic. Activists in Europe take extra precautions when working with women in Poland, where abortion is severely restricted. A Polish court in 2020 banned procedures even in instances of fetal abnormalities, one of the last remaining circumstances under which abortion had been permitted.
Groups like Abortions Without Borders have been filling the void, helping those who are pregnant travel to other countries with less restrictive laws and arranging for activists in other countries to send Polish women abortion pills. Poland’s laws permit a woman to give herself an abortion, such as by taking a pill, but prohibit anyone else from helping her access the procedure.
Activists also use virtual private networks, which can minimize data collected about browsing, and encourage Polish women to contact them on encrypted channels like Signal. They delete all online conversations after the person has had the abortion and caution the person not to post on social media about their experiences, after some faced online harassment. One organization that provides funds for Polish people to get the procedure in Germany pays abortion clinics directly, rather than providing funds to patients, to ensure there are no digital records.
And there is a fresh worry on European abortion activists’ minds: the introduction of what they describe as a “pregnancy register” in Poland. The Polish government approved a measure last month that requires doctors to save 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 operates 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 the victim of domestic violence.
Wydrzyńska was arrested after the woman’s partner reported her to the authorities. Police confiscated Wydrzyńska’s computer, as well as her children’s devices, during the investigation. Wydrzyńska couldn’t be reached for comment for this story, but previously has told The Post that the case has not dissuaded her from activism.
“Our safety is actually a matter of solidarity also,” said Zuzanna Dziuban, who is part of the Abortion Without Borders network that helps Polish women travel to abortion clinics in Berlin. “Not only for us activists … but also for people who use our help.”
Razzan Nakhlawi contributed to this report.