Nebraska Woman Sentenced to 90 Days for Burning and Burying Baby’s Remains, Not for Late-Term Abortion
The case occurred while Roe was still in effect, and the woman was not charged under Nebraska’s 20-week abortion law.
In the spring of 2022, while Roe v. Wade was still in effect, Celeste Burgess of Nebraska took abortion pills given to her by her mother to kill Burgess’s perfectly healthy and viable baby in the third trimester of pregnancy.
The Associated Press reports that Burgess talked with her mother in online messages obtained by police with a search warrant “about how she can’t wait to get the ‘thing’ out of her body.” Burgess said: “I will finally be able to wear jeans.” After the baby was allegedly delivered stillborn in a bathtub, Courthouse News reports, “mother and daughter tried to hide the remains, at one point attempting to burn the remains with apple-flavored charcoal briquettes, [Madison County Attorney Joseph] Smith has said. The fetus was buried, moved and reburied.” In one message, the daughter wrote to her mother: “Remember we burn the evidence.”
On Thursday, Celeste Burgess was sentenced to 90 days of jail time (50 days with good behavior) for burning and burying the remains of the baby — not for taking abortion pills.
Burgess’s baby was 30 weeks old at the time of the killing, when a baby typically weighs three pounds and has a 98 percent chance of surviving if given the opportunity to be born alive. Nebraska’s abortion law, in effect since 2010, banned almost all abortions later than 20 weeks of pregnancy. But Nebraska’s 20-week abortion law, like other modern American abortion laws, explicitly says the mother cannot be prosecuted for the abortion: “No penalty shall be assessed against the woman upon whom the abortion is performed or attempted to be performed.”
Many media outlets and pundits are nevertheless treating this story as proof that abortion laws will lock up women. “Nebraska Teen Who Used Pills to End Pregnancy Gets 90 Days in Jail,” reads the headline of a New York Times story that buries the fact Burgess was not charged under Nebraska’s abortion law. “They swore up and down they wouldn’t send girls and women to prison for having abortions. They lied,” David Frum tweeted around midnight. “Will the policing and punishment of women be an important issue in 2024? It sure seemed important to the outcome in 2022 – and that was while the new surveillance regime was still mostly hypothetical. Now it’s becoming real.”
But, again, we are talking about an extreme case that occurred while Roe was in effect, and the relevant law is a longstanding statute regarding the disposal of human remains, not Nebraska’s abortion law. If the mother had sold the remains of her baby to organ traffickers, that too would be illegal now, just as it was under Roe. A decision to enforce a law against organ-trafficking the remains of a baby killed at 30 weeks would not prove pro-lifers were liars any more than Burgess’s 90-day sentence does. In both instances, the treatment of the baby’s remains would be illegal, even if abortion were legal through all nine months of pregnancy.
One can certainly debate the prudence of the judge’s decision sentencing Burgess to 50 days to 90 days in jail. She was just shy of her 18th birthday when the crime occurred, and her mother has pleaded guilty to giving her the abortion pills later than 20 weeks of pregnancy.
Pro-lifers have long argued for principled and prudential reasons that abortion laws should not target the baby’s mother. “Contrary to the pervasive myth that women were prosecuted for abortion before Roe, consistent state abortion policy for a century before Roe was not to prosecute women,” Clarke Forsythe of Americans United for Life wrote for an NRO symposium in 2007. “Abortionists were the exclusive target of the law. That was based on three policy judgments: the point of abortion law is effective enforcement against abortionists, the woman is the second victim of abortion, and prosecuting women is counterproductive to the goal of effective enforcement of the law against abortionists.”
Post-Dobbs abortion laws exempt the mother from punishment. When the Dobbs leak occurred, all major pro-life groups — some 70 in total — reaffirmed their commitment to that provision of abortion laws:
As national and state pro-life organizations, representing tens of millions of pro-life men, women, and children across the country, let us be clear: We state unequivocally that any measure seeking to criminalize or punish women is not pro-life and we stand firmly opposed to such efforts.
The National Right to Life Committee, one of the signatories of that letter, said in a press release when Celeste Burgess was charged in 2022:
These charges have nothing to do with the Supreme Court’s Dobbs decision or Nebraska’s abortion law that was passed in 2010.
National Right to Life takes no position on the particulars of state laws regarding the handling of human remains.
If Frum and others think Nebraska should make it legal to incinerate and bury the remains of a baby at or near full term, they should say so forthrightly. But they should realize that such a law would effectively allow post-birth infanticide. If a baby had been born alive at 30 weeks and was drowned, or had her throat slit with a butcher knife, that would be an act of murder in all 50 states. Should there really be a legal right to destroy the evidence of such a crime?