The shocking arrest, prosecution, and imprisonment of Nebraska teen Celeste Burgess and her mother, Jessica Burgess, has now become one of the best-known cases of abortion criminalization in post-Roe America. But the Burgess case is just the tip of the iceberg. Since the 2022 Supreme Court Dobbs decision, abortion bans only make it easier to criminalize all pregnancy outcomes. Emma Roth of Pregnancy Justice joins Rattling the Bars to discuss the Burgess case and the broader movement to criminalize abortion care.
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Studio Production: David Hebden, Cameron Granadino
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Mansa Musa: Welcome to this edition of Rattling the Bars. I’m your host, Mansa Musa. Even before the Supreme Court and its majority of far right-wing fundamentalist justices overturned Roe v. Wade last year, states around the country have found ways to criminalize people for having abortions. But things are getting worse and a recent case in Nebraska makes this clear.
Celeste Burgess, who’s 19 years old, was sentenced to 90 days in jail and two years probation after self-managing an abortion at 29 weeks. To talk about this, we are joined by Emma Roth, who’s a staff attorney with Pregnancy Justice, a non-profit advocacy group that defends the civil rights of women and pregnant people. Thank you for joining me, Emma Roth.
Emma Roth: Thank you for having me.
Mansa Musa: Tell us a little bit about yourself and the work that you do at Pregnancy Justice.
Emma Roth: Sure. I’m Emma Roth, I use she/her pronouns, and I’m a staff attorney at Pregnancy Justice. We are a national organization. We’re based in New York City but we take on cases all over the country and we provide direct legal representation as well as strategic legal advocacy in cases in which a pregnant person is facing criminalization or other punitive state action because of their pregnancy or their pregnancy outcome. Whether that is a miscarriage or a stillbirth or an abortion, or if the pregnant person carried their pregnancy to term and had a healthy baby yet they’re still stigmatized because of the perception that they did something to put their pregnancy at risk.
Mansa Musa: Okay. This is bizarre, beyond anybody’s imagination, that we’ll be having a conversation about the criminalization of a person’s decision or their right to choose what they want to do with their body. This has been a longstanding battle for a woman’s right to choose. We’ve been constantly going back and forth with this country trying to regulate morality but now we find ourselves in a situation where we have a female, a woman, Celeste Burgess, who ended up in jail for having an abortion. Give us the background on this and tell us a little bit about this case, please.
Emma Roth: Sure. Let me start by laying out a bit of the national landscape and the broader background leading up to this particular case. Even though the Supreme Court, one year ago in the Dobbs decision, reversed Roe versus Wade and 50 years of legal precedent protecting the legal right to abortion, the issue of pregnancy criminalization is not new at all. In fact, our organization has been working on these cases for over 20 years and since 1973, the year in which Roe was decided, up until the Dobbs decision in 2022, we’ve tracked over 1700 cases in which pregnant people are criminalized because of their pregnancies or their pregnancy outcomes.
In each of these cases, the pregnant person is facing a charge that they would not face but for the fact that they’re pregnant. We’re not talking about your average type of possession charge, if let’s say the allegation is the pregnant person used drugs, but rather a charge of murder or homicide or manslaughter if the pregnant person experienced a tragic pregnancy loss like a stillbirth or a miscarriage, or a charge like child neglect or child abuse or child endangerment if the pregnant person carried their baby to term.
These cases are certainly not anything new. What there’s now much greater concern about is the criminalization of abortion itself. But prosecutors are relying on the exact same playbook that they have been using for decades to criminalize pregnant people. The case that we’ve come together to talk about today of Celeste Burgess is a case out of Nebraska, where a teenager was criminalized, along with her mother, because they sought abortion medication because she was not ready to be a mother yet. She was 17 years old at the time of the incident in question and she and her mother knew that that was far too early for her to take on the enormous responsibilities of parenthood when she had her whole life ahead of her. So they sought abortion medication in order for her to terminate her pregnancy.
The catch is that self-managing your abortion through taking abortion medication is not illegal in the vast majority of states. There are only two states that criminalize self-managed abortion: that’s South Carolina and Nevada. Nebraska is not one of them. Rather than charge her with some offense that was directly linked to abortion, they tried to throw other charges at her in order to stigmatize and police what they viewed as immoral behavior of deciding to terminate her own pregnancy.
Mansa Musa: Now, okay. This is interesting because we here – And I’m in Washington DC and when Roe was reversed, I was going past the Supreme Court, so I saw everybody on both sides of the fence, pro, and con – But in this whole conversation I have never heard about how they systematically have been criminalizing a woman’s choice. Why this is not on the radar? Why is this not forefront? Because this is criminal in and of itself when say a person chooses to make a decision, then you say, well, we’re going to criminalize it by saying this is murder, or we’re going to criminalize it by saying this is an assault on life.
In other words, your criminalization of it is what really what I’m looking at, your criminalization is the same criminalization that you give a person that goes out and commits a felonious crime, like if I go out and murder somebody. You in essence are saying that, if I as a female or a woman, if I choose to have an abortion, you can charge me with murder. Why is this not at the forefront of this debate about abortion?
Emma Roth: It’s an excellent question. And the answer is that the mainstream anti-abortion groups know that it is incredibly politically unpopular to admit that their end goal is to criminalize the abortion seeker herself, so the actual person who is pregnant and seeks an abortion. And they know that there is broad public support for the right to bodily autonomy, the right to abortion, and the notion that anybody would be jailed for seeking to terminate their own pregnancy is very politically unpopular.
Instead, what this right-wing anti-abortion movement claims, is that they are only seeking to target the providers of abortion with these criminal statutes. They say, we’re going after the doctors, and they frame the doctors as these baby killers who are manipulating women into seeking abortions against their will. And they have this very paternalistic framing where they say that they’re opposed to abortion because they’re actually trying to protect women and protect them from this industry that is killing their babies. It would be contrary to that framework for them to admit that what they actually want to do, and what in many cases they’ve done all along, is to criminalize the pregnant person herself.
You may remember in the 2016 presidential debate between Donald Trump and Hillary Clinton, he actually said, there has to be some punishment for the woman. And it was as if he was saying the quiet part out loud because so many in the anti-abortion movement think that, but they won’t admit it because they know it’s politically unpopular. And then all of the mainstream anti-abortion groups were saying, no, no, no, that’s not what we believe. And he ended up walking those comments back.
It’s more and more the fringe elements of the anti-abortion movement who will say that part out loud and really own the fact that they want to criminalize the person seeking the abortion. But it’s gaining more and more credence and acceptance within the more mainstream anti-abortion movement. And we saw this in the past legislative session where there were some bills introduced, including one in North Carolina, where somebody who sought an abortion could face the death penalty for killing a quote-unquote person.
And the ideology that is behind this new wave of restrictions is the notion of fetal personhood: the notion that a fetus inside the womb has all of the same civil and constitutional rights as a living human being. And while in theory the pregnant person herself also has constitutional and civil rights, the reality is that this right-wing movement pits these two groups against each other, the fetus versus the mother, and is saying, well, if you terminate your pregnancy, you are a murderer and therefore you deserve to go to jail or prison.
Mansa Musa: I recognize that the anti-abortion right-wing elements have been systemic in dismantling Roe. And we really need to educate our listeners on this here. Why is it that the pro-choice seems like they’re being outflanked in a lot of regards? Why is it that they’re not able to reverse this perspective?
Emma Roth: The right-wing anti-abortion movement has been incredibly strategic, well-funded, and organized for decades. And this has been a top priority issue for conservatives, in particular the evangelical movement. And they’ve been particularly strategic about organizing around judicial nominations and focusing on the fact that the Supreme Court, and changing the composition of the Supreme Court such that there are a majority of anti-abortion justices, is the end goal. And that is something that Donald Trump campaigned on from day one.
To some extent, Democrats were asleep at the wheel, in part because we have won this issue in the court of public opinion. The majority of Americans have supported abortion rights for decades. And that hasn’t changed since Dobbs. In fact, when it’s up to the voters, when there are things like ballot initiatives, we frequently prevail in getting to pass pro-abortion measures or defeating anti-abortion measures. What we haven’t been as successful at is elevating those who are protective of abortion rights to high-up positions within the judiciary.
And to some degree, we’ve really been out-strategized by the right wing on that. And they’re also very willing to do cynical things and stretch the boundaries of the law and stretch the boundaries of convention in order to accomplish their goal of obliterating the fundamental right to abortion. And Democrats by and large are much more focused on tradition and norms. So one example of that is the failure to expand the court because Democrats don’t want to end the filibuster, which they would need to do in order to expand the court. And while we’re focused on these things like norms, we’re not playing the same game. The conservatives who are anti-abortion are playing by completely different rules than the pro-abortion rights side of our country.
Mansa Musa: So what is y’all’s strategy in terms of trying to get people to see the necessity on the state, local, and national level, the necessity to mobilize getting pro-choice measures, pro-choice legislators, pro-choice city council, et cetera so that the conversation will not be around if a person’s making a decision to do something that they feel as though it’s in their best interest health-wise, that they won’t be criminalized and charged with a myriad of charges you outlined earlier?
Emma Roth: We are a non-partisan 501(c)(3) organization, so we don’t do any campaigning for individual candidates. What we do is work affirmatively on promoting legislation that would be protective of the rights of pregnant people, regardless of whether they seek to carry to term or seek to terminate their pregnancies. And we also engage in legal advocacy.
A huge part of our strategy is exposing these cynical tactics that the anti-abortion and anti-birth justice link of the American justice system is relying on to criminalize pregnant people for their pregnancies or their pregnancy outcomes. Every day we are representing actual pregnant people who are facing these criminal charges and we are sharing their stories. The right wing has depended so much on the fact that they have been targeting some of the most marginalized members of the American community. They have been focused on targeting poor people, people of color, substance users, and young people, and hoping that the public won’t really notice or won’t really care because they’re focused on criminalizing such stigmatized populations.
And we are not only providing direct legal counsel but also sharing in the media, sharing our clients’ stories of the horrors that they’re facing and the complete injustices of the criminal legal charges that they’re facing. And hoping by elevating these stories, we’re letting people know that this is an issue that’s already happening. The right is already criminalizing pregnant people. This isn’t just a threat now that the Supreme Court decided Dobbs and Roe has been eliminated and the fundamental right to abortion has been eliminated. This isn’t just a threat that people will go to jail for their pregnancy outcomes. This has been happening for decades and we’ve been representing these people for decades. And it’s time to pay attention and listen.
Mansa Musa: Right. And how’s Celeste? What’s the status of her situation, her case, and how is that playing out?
Emma Roth: She was recently sentenced on a guilty plea. This is another interesting case, whereas I talked about earlier, the charge itself is very rarely going to be something that has abortion in the actual criminal code. Because getting your own abortion medication or doing what’s called self-managed abortion is not illegal in the vast majority of states. So instead of criminalizing her for that, they criminalized her with a count of concealing or abandoning a corpse.
And this is a charge that we often see when a defendant has done something that the prosecution views as immoral. They start throwing spaghetti at the wall and trying to bring any charge that will stick. They couldn’t charge her with the fact that she terminated her pregnancy because that wasn’t illegal under Nebraska law, so instead they charged her with the fact that she disposed of the fetus’s body in a way that they disapproved of.
And as a result, she was sentenced to 90 days in jail and two years of probation. And what we can’t forget here is that this is a teenager. This is somebody who had her entire life ahead of her and who made a very personal decision with her mother that she wasn’t ready to become a parent yet. And instead of providing her with compassion and resources, the state decided to lock her in jail and give her a felony that will follow her around for the rest of her life because of all of the collateral consequences of a conviction.
Mansa Musa: All right, so going forward, where are you at right now? Because I’m quite sure there are more Celeste cases out there; more people, women, and family members that are making a decision on the wellbeing of their family that’s going to be confronted with this. So where are y’all at right now in terms of educating people and also moving them in a direction where they can get a better understanding of how to go about advocating for themselves in this situation? Because this is, like I said, a stretch of anybody’s imagination that a family can sit down and say, this is what we’re going to do with our life, and then the government comes in and says, well, you all can do that, but …
Emma Roth: Yeah. It’s essential that people who are part of marginalized populations who are more likely to be targeted in these cases, as well as the stakeholders who are involved in these cases – Whether that be the medical providers who way too often report their pregnant patients to the police or law enforcement officers or prosecutors – That everyone who’s involved in the system understands these injustices and understands what they can do to prevent them. We’ve created resources, including something we call our Confronting Pregnancy Criminalization Guide that’s available on Pregnancy Justice’s website, that tells each actor involved in the system, concrete steps that they can take in order to interrupt the pathway of pregnancy criminalization and prevent cases like this from happening in the first instance.
It’s vital that people be aware of their rights but also that people speak out when they work in a field – Whether that be in the medical setting, if they work as a medical examiner conducting an autopsy, if they work as a criminal defense attorney, as a prosecutor, as police, as a judge – All of these actors need to understand that this problem is already huge and is only growing by the day and that there are concrete things that they can do to stop it.
Mansa Musa: Tell our audience and our viewers how they can stay in touch with y’all and if they want to support any of y’all initiatives, how they become involved.
Emma Roth: Sure. You can find us on our website at pregnancyjusticeus.org, and you can follow us on Twitter, on Instagram. And we welcome the involvement of the public, whether that’s through donations, whether that’s through sharing our materials, sharing our content, speaking out with friends and loved ones in their own community, and educating them about these injustices. As more people can get involved in securing the rights of pregnant people, the better. We’ll take all the help we can get. I’m so honored that you invited us here today and thank you to your listeners for their interest in this issue.
Mansa Musa: All right, there you have it. Rattling the Bars. Emma Roth, you really rattled the bars today because you let our audience know that this has been an ongoing practice of the right wing to criminalize a woman’s choice and a person’s right to decide what they want to do with themselves. And we ask our listeners and our viewers to continue to support Rattling the Bars. It’s only on The Real News and Rattling the Bars that you’re going to get this information where when you say Roe v. Wade, you don’t think of Roe v. Wade and somebody getting 90 days in prison. You don’t think of Roe v. Wade and somebody going to trial or the prospect of being tried for murder. When you say Roe v. Wade, you don’t think of Roe v. Wade and think that somebody can go to prison and can’t get a bond. You don’t think of Roe v. Wade in any criminalization of a person’s decision.
You only think of what the narratives are being painted by the right wing: that this is immoral, this is bad. But you don’t hear the conversation about no, what is immoral is people telling anybody if they make a decision to do with their life that they’re going to criminalize because they got the right. Thank you, Emma. We appreciate you, and your continued success.
Emma Roth: Thank you so much for having me.
Maximillian Alvarez: Thank you so much for watching The Real News Network, where we lift up the voices, stories, and struggles that you care about most. And we need your help to keep doing this work, so please tap your screen now, subscribe, and donate to The Real News Network. Solidarity forever.