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Criminalized for Care: Abortion, Surveillance & the Threat of Prosecution

by Emily Song

Intern, The Ruth Collective



Courtroom drawing of a woman in handcuffs.

In 2018, after suffering a stillbirth at 36 weeks, Latice Fisher found herself answering the police’s questions about her search history-late-night queries about abortion options that she made in private, never expecting that they’d be read aloud in a courtroom. Fisher was indicted on the second degree murder charge in January 2018 after an autopsy was performed by the state medical examiner's office that

determined that the baby had died due to asphyxiation during his birth. Yet the conclusion has been widely questioned: experts note that determining asphyxiation in stillbirths is notoriously difficult, and that other factors- such as natural complications, undetected infections, or limitations of forensic methods- can influence the results. Fisher’s medical tragedy quickly became a criminal investigation. However, this story is not an anomaly- pregnancy across the United States is becoming increasingly treated as potential evidence of a crime.


The line between healthcare and criminal offense has become blurred in ways that place anyone who can get pregnant under unprecedented scrutiny, disproportionately impacting marginalized communities.

Criminalizing pregnancy outcomes is not new, but it is accelerating. Lizelle Herrera was arrested in 2022 in Texas after being indicted by a Starr County grand jury on a second-degree murder charge for allegedly “intentionally and knowingly” causing the death of her unborn child by self-induced abortion. Purvi Patel of Indiana was the first woman in the U.S. to be convicted of “feticide” for ending her pregnancy at 24 weeks and child neglect, with prosecutors citing texts to a friend and visits to an abortion information website as evidence.


The heart of the case lay in whether Patel’s baby was breathing or still-born at the moment of birth. A medical witness for the defense reportedly testified that, at an estimated 24 weeks, the fetus was not viable and could not have survived outside of the womb. A forensic pathologist ruled that the infant was alive at birth. The verdict was mutually contradictory as the charge of child neglect would require the baby to have been alive and viable, while the feticide charge would require the fetus to have died in utero. However, Patel was convicted on both charges.

Between 2000 and 2021, more than 60 cases in the United States involved someone being investigated, arrested, or charged for allegedly ending their pregnancy or helping someone else do so, according to the findings of reproductive justice nonprofit If/When/How (Zakrzewski et al, 2022).

Abortion bans don’t just impact abortion access; they disrupt the entire spectrum of pregnancy care. In Louisiana, a recent report titled “Criminalized Care: How Louisiana’s Abortion Bans Endanger Patients and Clinicians.” revealed that doctors delay or deny treatment and other complications, fearing prosecution. The report, conducted in 2023, drew from interviews with 30 healthcare providers and 13 patients, and was jointly supported by Physicians for Human Rights, the Center for Reproductive Rights, Lift Louisiana, and Reproductive Health Impact.


In Ohio, one woman was sent home from the ER while bleeding profusely during a miscarriage, told to return only when her condition worsened. Christina Zielke had her first pregnancy at 33, excited for motherhood and her new life. Unfortunately during her initial prenatal appointment in Washington D.C., there was no heartbeat and her bloodwork showed her pregnancy hormones were beginning to drop. Zielke experienced a miscarriage and was presented several options: take medication to make the pregnancy tissue come out faster, have a dilation and curettage, or D&C procedure to remove the pregnancy tissues from her uterus, or wait for it to come out on its own. After the doctor recommended for her to wait, it took weeks for the vaginal bleeding to start.  While visiting family in Ohio, Zielke experienced extremely heavy bleeding, filling her parent’s bathtub with blood. After visiting the hospital in Ohio, Zielke was discharged despite experiencing a medical emergency because the medical professionals stated she had not lost enough blood and they needed to prove there was no fetal movement.  She was told to return in a couple days to take a hormone test to confirm the miscarriage. During the time of Zielke’s miscarriage, Ohio had a law known as the “heartbeat bill” in effect, banning abortion after six weeks of pregnancy, and health care providers who violated the law faced fifth-degree felony charges, up to a year in prison, loss of their medical license, and fines up to $20,000.

Doctors face an impossible bind: act quickly and risk prosecution, or wait until the patient’s life is in imminent danger. For pregnant people, that delay can mean the difference between recovery and catastrophe.

The criminalization of pregnancy is supercharged by digital surveillance. Prosecutors have increasingly turned to personal data to build cases- looking at texts, search history, app data, and even geolocation information. Fisher’s case relied on Google searches; Patel’s included text messages to a friend.


This is where the $250 billion data broker industry enters the picture. These companies collect vast amounts of personal data- period tracker logs, GPS coordinates, app activity- and sell it. As one September 2024 Federal Trade Commission report noted, “targeted advertising” pushes for companies to collect invasive amounts of user data with almost no safeguards. That warning proved prescient. In August 2025, a California federal jury found that Meta had violated the state’s wiretap law, the California Invasion of Privacy Act (CIPA), by secretly gathering data from the Flo Health app, a platform that allows women to track and log details about their periods, ovulation or pregnancy. Users who thought this sensitive information would be safely stored had their information funneled through software development kits and shared with Meta, Google and Flurry. Although the Flo Health app promised to not disclose this information, the jury determined that Meta “eavesdropped” on its users. While some defendants settled before trial, this verdict highlights the larger truth: what looks like ordinary digital marketing can turn reproductive health into a commodity.


Under the “data broker loophole,” law enforcement agencies don’t need to go to a judge for a warrant or subpoena- they can simply buy sensitive information the same way a marketer would. In practice, this means that private browsing histories, location trails to clinics, or even the intimate details logged in a period tracker can be packaged and sold. Public records show 79 data brokers in California selling precise geolocation data and 25 openly advertising access to reproductive health information. None of this information is covered by HIPAA, the health privacy law that only applies to information shared directly with doctors and hospitals. That gap leaves enormous amounts of reproductive data exposed, for sale, and available to whoever pays—including prosecutors, sheriffs, or bounty-hunting vigilantes in states with abortion bans.


The burden of this surveillance doesn’t fall evenly. Black women, women of color, immigrants, and low-income communities face the sharpest edge of these policies, as Kierra B. Jones notes, because they already live under heightened levels of policing and criminalization. When abortion access disappears and digital trails become evidence, these communities are at the greatest risk of arrest, prosecution, and harassment. And for people who attempt self-managed abortion (SMA), the consequences can be even more severe: those without resources to travel to clinics, pay for out-of-state care, or navigate complex legal restrictions are left most exposed to digital monitoring—and to the possibility that private decisions could be turned into criminal cases.


References:

Ayoub, Emile, and Elizabeth Goitein. “Closing the Data Broker Loophole.” Brennan Center for Justice, 4 Jan. 2024, www.brennancenter.org/our-work/research-reports/closing-data-broker-loophole.




Gerdts, Caitlin, et al. Self-Managed Abortion and Criminalization in the Post-Dobbs US | Obstetrics and Gynecology | Jama Network Open | Jama Network, https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2821660. Accessed 16 Aug. 2025.


Hurtado, Patricia, et al. “In a Post-Roe World, More Miscarriage and Stillbirth Prosecutions Await Women.” Fortune, Fortune, 5 July 2022, https://fortune.com/2022/07/05/roe-v-wade-miscarriage-abortion-prosecution-charge/.

Jones, Kierra B. Stopping the Abuse of Tech in Surveilling and Criminalizing Abortion - Center for American Progress, www.americanprogress.org/article/stopping-the-abuse-of-tech-in-surveilling-and-criminalizing-abortion/. Accessed 16 Aug. 2025.


Kelly, Heather, et al. Seeking an Abortion? Here’s How to Avoid Leaving a Digital Trail , www.washingtonpost.com/technology/2022/06/26/abortion-online-privacy/. Accessed 16 Aug. 2025.


McCarthy, Regan. “Why Providers Say Abortion Ban Exceptions Continue to Cause Confusion.” NPR, NPR, 14 June 2024, www.npr.org/2024/06/06/nx-s1-4995739/abortion-exceptions-life-mother-florida.


Phillips, R. (2019, May 9). Infant death case heading back to grand jury. Starkville Daily News. https://www.starkvilledailynews.com/infant-death-case-heading-back-to-grand-jury/article_cf99bcb0-71cc-11e9-963a-eb5dc5052c92.html 


Simmons-Duffin, Selena. “Her Miscarriage Left Her Bleeding Profusely. an Ohio Er Sent Her Home to Wait.” NPR, NPR, 15 Nov. 2022, www.npr.org/sections/health-shots/2022/11/15/1135882310/miscarriage-hemorrhage-abortion-law-ohio.


Westwood, Rosemary. “Standard Pregnancy Care Is Now Dangerously Disrupted in Louisiana, Report Reveals.” NPR, NPR, 19 Mar. 2024, www.npr.org/sections/health-shots/2024/03/19/1239376395/louisiana-abortion-ban-dangerously-disrupting-pregnancy-miscarriage-care.


Woolf, N. (2015, February 4). Purvi Patel found guilty of feticide and child neglect over unborn baby’s death. The Guardian. https://www.theguardian.com/us-news/2015/feb/04/purvi-patel-found-guilty-feticide-unborn-childs-death 


Zakrzewski, Cat, et al. Texts, Web Searches about Abortion Have Been Used to Prosecute Women, www.washingtonpost.com/technology/2022/07/03/abortion-data-privacy-prosecution/. Accessed 16 Aug. 2025.


Disclaimer:

We and the volunteer, student-author have done our best to properly attribute all sources used in this article. However, if you notice a misattribution or an uncredited source, please contact the author here so we can make the correction.

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