Privacy concerns awakened as Roe v Wade is overturned

What the overturning of the SCOTUS ruling means for those seeking abortions and how the ruling may impact private data.

The recent Dobbs v. Jackson Women’s Health Organisation decision by the United States Supreme Court overturned the 1973 Roe v. Wade ruling that has legally protected abortion access for almost fifty years. The Court’s decision has consequently thrown civil rights movements into disarray, raising concern around the possibility that private data could now be used to detect, investigate and prosecute those seeking abortions in many states.

These concerns have led many American’s to remove their menstruation-tracking applications, in fear that their personal data could be used against them in future, particularly in states where abortion has already been criminalised. While the 1996 Health Insurance Portability and Accountability Act (HIPAA) protects an individual’s medical records and other identifiable health information, it does not protect information collected by third-party apps or tech companies. 

Popular period-tracking apps Flo and Glow have faced backlash in the past for security flaws that have failed to properly secure sensitive information and put individual user data at risk. According to the US Federal Trade Commission, Flo shared users’ fertility data (being “information regarding your marked cycles, pregnancy, or symptoms”) with third parties despite public assurances that data would not be shared “for any other purpose except to provide services in connection with the app”. 

Following the ruling, companies storing user data (including people’s online search histories, information from period-tracking apps and location tracking) may be subject to online policing or the disclosure of personal information by law enforcement agencies resulting in the punishment of people who seek access to abortion services online. Such digital information can be used by law enforcement agencies prosecuting abortion cases and opens the door to more surveillance by the state. As such, many are concerned about the exploitation of such personal data against women or physicians who carry out abortions in violation of state laws. 

There has been a push to safeguard user’s digital footprints in case individual states come down hard on personal data in light of this ruling.  Flo has since responded to Dobbs by incorporating an anonymity feature for users, which strips users’ accounts of personal identifiers when the anonymous mode is activated. 

However, despite this added measure, with Dobbs re-allowing states to outlaw abortion, there is now the risk that woman’s personal data could be subpoenaed. Experts predict that a digital trail of texts, emails, online payment records, Google searches, tracking apps and location may all be used against individuals seeking reproductive care. This comes at a time where the collection of our personal data is difficult to escape, as companies often base their business models on the sale of personal data.

The Office of the Australian Information Commissioner (OACIC) has opened an investigation into whether companies like Kmart and Bunnings have utilised facial recognition software in efforts to combat shoplifting. The collection of biometric data has usually been done surreptitiously, without the knowledge and consent of many customers who often miss the “small, inconspicuous” signs placed by businesses.

In the wake of Roe’s overturning, these fears have become more pressing. Stores can already collect and track the timings and frequency a customer visits a store, pattern and behavioural analysis (such as their reaction to pricing) and their connections with other shoppers (such as friends, family and anyone else with them). Similar tracking could make accessing abortions more dangerous, with the potential for digital surveillance to be used against individuals travelling to clinics and seeking abortions, or family members and friends assisting them to do so. 

Last year, Arkansas passed the Every Mum Matters Bill requiring women considering an abortion to call a state hotline outlining alternatives to abortion. The hotlines are stationed at crisis pregnancy centres, many of which are Christian organisations that operate under the guise of an abortion clinics to counsel women against undertaking the procedure.

Abortion activists fear these forms of surveillance may be another method used to identify and track pregnant women, as evidence of accessing these centres isn’t subject to the privacy protections of HIPAA. Further, patients medical records, including information collected on their sexual and reproductive history, can be turned over to law enforcement to prosecute abortion providers or pregnant people themselves. This has led to activists urging those seeking abortions to turn off their location services, leave their smartwatches and phones at home, and be stringent on any period-tracking apps they use. Programs like CCleanercan offer such protection, erasing privacy-violating cookies and internet history from personal devices. These measures may seem draconian, yet these actions are becoming necessary to protect people from prosecution. 

The conservative conception of fetal personhood – where an embryo or fetus is considered living from the moment of conception – forms the basis for the pro-life movement and its move to criminalise abortion. These laws hold that a foetus is ethically and legally equivalent to a human, and consequently that its right to life is worth more than a woman’s right to control her body. 

Protecting privacy and personal data has never been more vital in the post-Roe era. In Australia abortion has been largely decriminalised, but a growing conservative right have been emboldened to push the United States decision here. The Australian Christian Lobby responded to Roe v. Wade by declaring the ruling a “tremendous victory in the fight to protect unborn lives!” 

“Trigger ban” laws in place in thirteen states meant abortion was automatically criminalised after the ruling, while other conservative states, including South Carolina, are now considering  even greater restrictions post-Roe including abortion bans at fertilisation, limits on out-of-state abortions and shutting down access to abortion pills.

And even while abortion is legal in Australia, it can be prohibitely expensive and difficult to access. Abortions are largely performed in private clinics rather than in the public system. The median out-of-pocket expense for medical abortion is $560 and there is an inadequate amount of medical abortion practitioners in Australia. The cost may also be more expensive if the gestation period is over the 12 week period and is dependent on whether the abortion is done medically or surgically. According to data from MS Health, as of December 2021 there were 3,059 prescribers of medical abortion in Australia while there were 31,620 registered GPs

We must be forthright about protecting reproductive rights, fighting against the violation of privacy, and defending individuals’ agency over their bodies.