Surveilling the Digital Abortion Diary

Conti-Cook, Cynthia
University of Baltimore Law Review

In 2017, along with her stillborn fetus, Latice Fisher, a Black woman, arrived at the Oktibbeha County General Hospital in Starkville, Mississippi in an ambulance. While receiving care from medical staff, she was also immediately treated with suspicion of
committing a crime. Her statements to nurses, the medical records, and the autopsy records of her fetus were turned over to the local police to investigate whether she intentionally killed her fetus. To develop these records into evidence supporting an indictment for intentional murder, prosecutors would need some evidence about Ms.Fisher’s intent. This is typical; at best, prosecutions of people based
on their pregnancy outcomes usually rely on circumstantial medical evidence, what patients report to nurses and doctors, and cooperation from medical staff. Without a confession, a diary, or something similar, direct evidence of a person’s mindset or intentions prior to a termination is usually absent. The lack of “intent” evidence might
not discourage a prosecutor from attempting to indict someone, but it might dissuade a grand jury from voting for an indictment. In Ms.Fisher’s case, the prosecutor sought to fill that gap in the initial
presentation to the Grand Jury by arguing that Ms. Fisher’s web search history proved her criminal intent; it included searches for how to induce a miscarriage and evidence that she purchased
misoprostol online. The first Grand Jury was convinced and indicted Ms. Fisher for second degree murder.