Protecting Reproductive Rights in the Digital Age
By Shreya Sampath
In the post-Roe v. Wade age, reproductive rights across the United States are under attack, with Republican-controlled states especially vulnerable. Laws criminalizing reproductive healthcare have emerged at a rapid pace in these states, giving state governments and law enforcement the power to enact harsh restrictions through prosecution,like Missouri and Nebraska have emerged. While the emergence of these cases are concerning, the use of personal data as evidence to prove “criminal intent” in court is even more concerning. Although precedence of utilizing personal data as evidence exists, it is particularly harmful in this context. This invasive practice risks supporting a system that prevents pregnant people from being able to access reproductive care, a right previously upheld by the Supreme Court. As the second anniversary of the overturning of Roe v Wade approaches, it is pertinent to consider the role of technology in restricting reproductive rights and examine innovative policy solutions put forth by advocates that mitigate the negative effects.
Even prior to the Dobbs v. Jackson ruling, which overturned Roe v. Wade in June 2022, there was a vast precedence of the use of fertility-related data by the prosecution. In the context of reproductive care, the most obvious source of fertility-related data are period tracking and reproductive health applications, which have gained popularity over the last decade. After the Supreme Court released the Dobbs decision, articles regarding the invasive practices of period tracking applications dominated media headlines. These articles revealed that although these applications promised transparency and privacy surrounding their data collection practices, they still shared their users’ data without consent to anonymous third parties. Also, law enforcement officers could issue warrants to access personal data, which cannot be evaded by the companies creating these applications. The knee-jerk reaction of many, including myself, was to immediately delete the applications.
However the types of fertility-related data used as evidence in court are most commonly sourced from text messages, emails, search histories, and location detectors. In a 2017 case in Mississippi, a woman’s search history, which included evidence that she purchased misoprostol (an abortion inducing drug), was used to prosecute her for feticide. Considering that most people turn to the internet to explore options, one’s digital trail is a source of evidence that will be heavily relied on. The 2017 Mississippi case set a standard protocol of using these types of data as evidence of criminal intent in states with restrictive abortion access. Moreover, the location data of patients seeking abortion care has been found by investigative reporters to be readily accessible for a low cost, sold by unregulated data brokers. As laws around abortion access are constantly evolving across the United States, patients traveling to different states to seek care are vulnerable to prosecution.
In the last two years, there have been numerous legislative actions and proposals to combat the harms of digital surveillance for those seeking reproductive care in states hostile to reproductive rights. For example, President Biden issued an executive order immediately after the ruling to protect patient privacy and combat digital surveillance. In California, a shield law prohibiting Californian companies from providing their data to law enforcement investigating abortions from other states passed, making California a reproductive rights haven—this bill has been replicated in other states, including Washington, Connecticut and New York. Nationally, Representative Sara Jacobs (D-CA) introduced the My Body, My Data Act, creating a national standard to protect reproductive and sexual health data. Though these are significant actions, more must be done to protect those seeking reproductive care from invasive digital surveillance.
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