On June 24th 2022, the ruling by the Supreme Court overturned Roe versus Wade; this decision has brought online privacy issues around women’s reproductive health front and center.

While perhaps superficially unrelated, the two rights — the right to an abortion, and the right to privacy — are connected in U.S. law. That’s because the right to abortion, according to the 1973 Roe v. Wade ruling, stems from the right to privacy guaranteed by the Fourteenth Amendment’s due process clause.

What Are Data Privacy Laws, and Why Are They Important?

Of particular concern to some abortion-rights groups is data collected online that could be used against women seeking abortions. States such as Texas have focused on limiting abortion availability and indicated a no-tolerance approach in the absence of Roe v. Wade.

One of most alarming aspects of the decision is that it discards the concept that the right to privacy incorporates intimate decisions about how we live our lives unless it can be proven that the ability to make these decisions was legally protected at the time the relevant provision of the Constitution was written.

Tech companies may have to contend with issues about user privacy pertaining to to health care whether it is in their interest or not. That could be the case if they are ordered by law enforcement to hand over certain types of data, like location information of users at an abortion clinic, search histories or text messages.

These concerns go beyond the already regulated data collected by healthcare organizations. Data includes GPS data that law enforcement could use to place women in locations that have abortion clinics, as well as data collected by consumer-focused reproductive health apps, such as the apps that track menstrual cycles.

While actual reproductive health data isn’t the only way law enforcement or other prying eyes could infer someone had an abortion, cutting down on personal data-sharing could become customary for women in post-Roe v. Wade America without action from tech companies or the government to protect them.

Government action to protect reproductive health data is already in the works in the form of the My Body, My Data Act, which was introduced simultaneously in the Senate and House of Representatives on June 16. If enacted, the legislation will create a baseline protection of personal reproductive health data by restricting the data that can be collected and retained. Additionally, the legislation would prevent the data from being disclosed or misused.

“Since the Supreme Court leak, I’ve heard from so many people who are panicked about their personal reproductive health data falling into the wrong hands,” said Sara Jacobs, the California Democrat sponsoring the bill in the House, in a statement when the bill was announced. “The My Body, My Data Act will protect that information, protect our privacy, and reaffirm our rights to make our own decisions about our bodies.”

“As a young woman, reproductive health care is my health care, and like tens of millions of Americans I’ve used period-tracking apps to help manage my reproductive health,” Jacobs added. “It’s unconscionable that information could be turned over to the government or sold to the highest bidder and weaponized against us, and especially against low-income people and people of color who will be most impacted if Roe is overturned.”

In the same announcement, Jacobs’ communications director, Will McDonald, anticipated that even without the protection of Roe v. Wade, women will continue to seek abortions, including those who live in states where they’re illegal.

“The leaked draft decision revealing the Supreme Court’s plans to overturn Roe v. Wade has raised serious concerns that data collected by apps and websites could be used to target or arrest people if abortion is criminalized,” McDonald said. “This includes location data, search histories, and reproductive health data collected by menstruation-, ovulation-, and pregnancy-tracking apps each month. Recent reporting has also revealed the prevalence with which consumers’ personal reproductive health information — often our most personal information — is disclosed and monetized.”

In the Senate, the bill is cosponsored by Hawaii’s Mazie Hirono and Oregon’s Ron Wyden, both Democrats. Hirono and Wyden said in a joint statement: “Congress needs to step up and offer real protections for people seeking reproductive healthcare, and lots of people seek that care online. It is just common sense that data brokers, tech companies, and advertisers shouldn’t be able to put personal, sensitive information on the public auction block for anyone with a credit card.”

What the Bill Proposes

If passed, the My Body, My Data bill would limit the data that can be collected, retained, used, or disclosed to only what’s needed to deliver a product or service. The bill would affect any company or organization that collects personal data related to reproductive or sexual health. It also stipulates that companies must publish a privacy policy that outlines how they collect, retain, use, and disclose personal reproductive health information.

In addition, it hands individuals the right to access and delete their reproductive health information and allows them to bring lawsuits over violations.

The bill contains a non-preemption clause that allows states to pass stronger restrictions if they wish and makes the Federal Trade Commission responsible for enforcement.

So far, the My Body, My Data Act has been endorsed by Planned Parenthood, NARAL Pro-Choice America, Electronic Frontier Foundation, National Partnership for Women & Families, the National Abortion Federation, Unite for Reproductive & Gender Equity, and Feminist Majority.

The U.S. Supreme Court’s recent decision to overturn Roe v. Wade dealt a blow to women’s rights with the constitutional right to an abortion nullified and individual state legislatures now ultimately in charge of deciding if, when and for what reason a woman is allowed to have the procedure. The 6-3 ruling from Supreme Court Justices was expected after a draft opinion leaked in May.

The issue cuts largely at the heart of women’s civil rights, but the privacy implications of the reversal are being brought to light as well. U.S. Sen. Ron Wyden, D-Ore., said in a statement that the decision stokes people’s fears that the government is “clearly eager to violate their privacy and the basic human right to control their own bodies.” Besides urging U.S. Congress to work quickly to codify Roe v. Wade, Wyden said an immediate and necessary response to the decision would be to pass federal privacy legislation.

“Congress must pass legislation protecting people’s data so their web searches, text messages and location tracking aren’t weaponized against them,” Wyden said. “Technology companies must take immediate steps to limit the collection and retention of customer data so that they don’t become tools of persecution.”

Rep. Suzan DelBene, D-Wash., offered a similar urging on the need for federal privacy legislation to help reinforce women’s rights following the SCOTUS’s leaked opinion. The bipartisan, bicameral proposal for the American Data Privacy and Protection Act currently under consideration in the U.S. House doesn’t have specific provisions related to abortion or women’s health and it’s unclear at this point whether federal lawmakers may try to amend the bill to tackle the issues at hand.

Existing proposals, actions to curb harms

A main concern among lawmakers and civil rights advocates is the exploitation of personal data that could lead to prosecution of women or physicians who proceed with abortions in violation of state laws. Some state statutes allow for whistleblowing against patients and providers, making simple requests for data from a company or third-party data broker a resource for outing violators.

There’s at least one proposal at the federal level seeking to box out access to data that whistleblowers may find useful as Senate Democrats introduced the Health and Location Data Protection Act June 15. The proposal targets sensitive data brokerage and to combat the sharing of health records and tracking of movements to draw points of inference.

With the bill’s introduction, Sen. Patty Murray, D-Wash., said the sale of sensitive data “isn’t just wrong — it’s dangerous” and it “risks Americans’ safety as they seek the care they need.” Wyden outlined potential types of data that could be exposed via data brokers after a Roe v. Wade reversal, including “researching reproductive health care online, updating a period-tracking app, or bringing a phone to the doctor’s office.”

In the absence of legislation, some women’s health application providers have begun shoring up their privacy and data protection practices. The Wall Street Journal reported on how several developers of period-tracking and fertility apps are addressing the issue, including moves by birth-control app Natural Cycles and period-tracking app Flo to incorporate anonymization for users.

“The goal is to make it so no one—not even us at Natural Cycles—can identify the user,” Natural Cycles co-founder and co-CEO Raoul Scherwitzl said.

Natural Cycles, Flo and period-tracking app Clue also offer clear paths to data deletion upon request. According to Mashable, period-tracking app Stardust has begun offering end-to-end encryption to protect its users.

“What (encryption) means is that if we get subpoenaed by the government, we will not be able to hand over any of your period tracking data,” Stardust’s founder Rachel Moranis said in a statement via TikTok. “It is completely anonymized from your login data. We can’t view it. You are the only person that can see this.”

The concerns don’t end with health apps though. Time reported on increased worry around data collection, storage and sharing at pregnancy centers, which have equal ties to anti-abortion advocacy groups as they do women’s rights groups. Potential data being collected at these centers include sexual and reproductive histories, test results, ultrasound photos, and information shared during consultations.