The Supreme Court’s Dobbs decision overturning Roe v. Wade in 2022 unleashed a reproductive health crisis in the United States. The country also faces a data privacy crisis. The two are intrinsically related, increasing the risks that people face in accessing reproductive health care.
We live so much of our lives online and on our phones, from social media to internet searches, fitness apps, and more. Without a federal comprehensive data privacy law, the apps and services we use daily can collect, analyze, and monetize each and every data point about us with little oversight. Some of that personal data is extremely sensitive, like a calendar appointment to seek abortion care or an internet search for information about abortion medication. And while other personal data may seem benign, like your T-shirt size or looking up the weather in your neighborhood, each data point is a small piece of an intricate puzzle detailing who we are and what we are doing. Online firms and data brokers track us across the internet, collecting and analyzing millions of data points to build detailed profiles for targeted advertising and other purposes. The impact of these commercial surveillance ecosystems can be especially acute for certain communities, like people seeking abortions or other reproductive health care.
Criminalization and stigmatization related to pregnancy outcomes and abortion are not new concepts. However, in the immediate wake of Dobbs, these efforts were turbocharged: trigger laws criminalizing abortion for the patient and/or the provider went into effect, and many states began to enact new laws or enforce existing criminal laws against people seeking abortion care or even experiencing a miscarriage. Some states enacted statutes that permit private parties to seek civil penalties against abortion providers and others who may help a person seek or obtain an abortion. On a national level, an anti-abortion group sued the Food and Drug Administration to severely restrict access to mifepristone, a commonly used medication to end a pregnancy. Unfortunately, our lack of digital privacy protections only intensifies these ongoing, dangerous efforts to criminalize and limit access to abortion and reproductive health care.
In the current digital age, law enforcement, prosecutors, and civil litigants have unprecedented access to incriminating information about pregnant people. Relevant data collection can come from search query histories, health and fitness apps, period tracking apps, and many other sources. Location information recorded by an app on a cell phone can be particularly incriminating, revealing that a person visited an abortion clinic or left a state to seek abortion care. Pregnancy status and health information can also be inferred from analyzing seemingly innocuous data points, like information from an online grocery order or hovering a cursor longer than usual on a certain video.
Law enforcement can access this data in multiple ways. As people are constantly tracked online and seek information from search engines and social media, they develop a detailed digital footprint. Law enforcement can seek to obtain these records through normal legal processes like a subpoena or a warrant. There are some federal laws that restrict disclosure of certain types of information like health information in the Health Insurance Portability and Accountability Act (HIPAA), financial information in the Gramm-Leach-Bliley Act, and certain telecommunications information in the Stored Communications Act. However, these laws all have exceptions for law enforcement, leaving covered entities responsible for responding to criminal investigations, warrants, and sometimes civil subpoenas.
Outside of legal processes, law enforcement can purchase data from data brokers on the largely unregulated open market. Data brokers can use machine learning tools to analyze large pools of data for inferences or correlations that reveal pregnancy status or abortion-related information. While data brokers may typically compile or sell this information for targeted advertising purposes, there is nothing stopping law enforcement, or private persons initiating civil lawsuits against abortion providers, from purchasing this information as well.
Digital privacy for pregnant people or anyone seeking reproductive health care has become extremely consequential. For providers and patients, the effects of criminalization are severe. In addition to actual imprisonment, there are social and financial consequences to having a criminal record or fines, and for providers, the potential revocation of their medical license. Because even the threat of these consequences is so serious, doctors in many states cannot provide abortion care or treatment related to miscarriage. As a result, pregnant people or people seeking reproductive health care suffer severely limited health care options.