Since the repeal of Roe v Wade in June of 2022, women seeking to maintain their bodily autonomy have had targets placed on their backs by regional and federal governments. As of September 2023, twenty-four states have banned and/or plan to ban abortion. These states have begun a witch-hunt persecution, incentivizing individuals to report women who are obtaining abortions illegally in their state. Once an investigation begins, prosecutors can use location data, Google search history, fertility and menstrual cycle tracking apps, payment records, health records, and more invasive data as evidence in court against accused women. As Jia Tolentino of the New Yorker puts it, “We have entered an era not of unsafe abortion but of widespread state surveillance and criminalization—of pregnant women…. state-level anti-abortion crusades have already turned pregnancy into punishment.” The surveillance and criminalization of abortion disproportionately affects BIPOC (Black, Indigenous, People of Color) women in particular. These BIPOC individuals not only face barriers to reproductive healthcare access but also a prejudiced legal system. The surveillance of women is consequently more likely to be used against BIPOC women in a court of law. As states crack down on abortion bans, it becomes increasingly important for women to be wary of their data usage. That being said, this burden of safety should not rest on the individual, but rather on the institutions with custody over user data. The onus lies on the tech industry to protect and encrypt user data and the government to pass protective data legislation, thereby making it nearly impossible for this data to be used in a court of law.
Digital Data in the Court of Law:
Digital data used as evidence against women in reproductive-related cases is not uncommon. In a 2015 court case, Purvi Patel was sentenced to twenty years in prison for feticide (destruction of a fetus) and child neglect. Prosecutors argued against Patel by using her private text messages to a friend in court. Patel detailed in the messages that she decided to induce an abortion using pills she bought online from Hong Kong. Although the pills can be legally obtained in the US, Patel sidestepped the US medical bureaucracy and purchased them online, which is illegal in her state of Indiana. Though Patel broke Indiana’s feticide laws, she was looking to face the better part of her life in prison for exercising her autonomy. Luckily, Patel’s case was eventually overturned in the Court of Appeals. Traumatic stories like Patel’s resemble what could happen to thousands of women who no longer have access to safe and legal abortions.
In addition to text messages, experts have warned that credit card statements stand as quality and permissible evidence in court. Medical records provide the most definitive evidence that an abortion has been performed. However, HIPAA (Health Insurance Portability and Accountability Act) laws make it hard to obtain this information if there is not a court order. To sidestep this protection, law enforcement can look to billing records to easily incriminate women obtaining abortions. HIPAA allows for medical and billing records to be released when a warrant or subpoena is presented. This permits law enforcement to dodge the medical confidentiality of a defendant and deduce if an abortion was performed from medical bills, itemized or not. Medical bills for abortions performed in another state are included in what can be subpoenaed and used to prosecute women living in an anti-abortion state. Although the Fourth Amendment provides the illusion of privacy from the government, technicalities allow for prosecutors to find ways of locking up women seeking an abortion.
Search history can provide prosecutors of abortion another easy piece of incriminating evidence. Law enforcement is able to ask third-party organizations like Google for their user data. That being said, most tech giants like Google or Apple are resistant to presenting data to law enforcement and typically require a warrant or verbal consent from the owner of the account. However, apps or websites that do not encrypt user data (meaning the data on a device is not private and local to that device)—and are presented with a subpoena—cannot prevent law enforcement from using and accessing data. It should be noted that any third-party data is not private and may be used against individuals in a legal setting.
Tracking menstruation with an app or by disclosing information to a provider can also be used as admissible evidence in court. In 2019, Missouri used medical health data that tracked women’s periods in order to investigate “failed” abortions. Even in a world with Roe v Wade, institutions were going to great lengths to prevent and criminalize abortion. Though experts claim period tracking app data would not be enough evidence on its own to convict a defendant, it’s important to note that the data could be used in collaboration with other incriminating data.
The Finances of Criminalized Abortion:
In nearly every case where a woman is persecuted for abortion, another person is involved who seeks to investigate and punish the individual. These individuals are typically a member of a hospital’s staff, a family member, a partner, a friend, or anyone the individual would confide in about such a personal matter. Once the investigation has begun, it is not surprising for a phone or data search to be conducted. States with abortion bans are even providing incentives to these third parties to turn in their peers. Three states that have banned abortion – Texas, Idaho, and Oklahoma – have provided their citizens the chance to win a $10,000 prize for filing a civil lawsuit against someone they believe has had an illegal abortion. By turning individuals against one another, monetary incentives have produced a witch-hunt style of persecution.
Women found guilty of violating an abortion ban face a range of penalties based on the state and the charge. Sometimes, it is not only the mother who is held liable. In certain states, anyone caught helping the individual can be investigated and charged with aiding and abetting. After Roe was overturned, thirteen states enacted trigger bans on abortion that came with harsh penalties. In Louisiana, for example, the penalty for an abortion (with the exception of life-threatening scenarios) is up to ten years in prison and a fine of $10,000 to $100,000. In Texas, anyone involved in carrying out an abortion is subject to a fine of at least $100,000 per charge. These charges, though extreme, represent the average penalty for an illegal abortion in anti-choice states.
Placing monetary value on the prevention of abortions provides financial incentives for private and public parties. Governments collect the fines from cases where individuals are prosecuted for abortions, while abortion bounty hunters are monetarily rewarded for turning people in. Providing a financial incentive for individuals to turn in their peers will increase the number of women arrested and charged. Furthermore, a letter by a few congresspeople to the Federal Trade Commission noted that data brokers have been selling sensitive data on credit card usage surrounding abortion providers. These data brokers have the financial incentive to encroach on the privacy of individuals to make a profit. This goes to show that money can twist people’s actions and morals even when it comes to a humanitarian issue.
What are the Implications?
BIPOC women face the most barriers in protecting their reproductive autonomy. People of color are subjected to disproportionate levels of surveillance compared to white individuals–a disparity whose origins lie in the enslavement of Black Africans. This poses a large issue, especially since women of color make up roughly two-thirds of those seeking abortions in the US, despite only representing fifteen percent of the female population. BIPOC women’s reliance on abortion, combined with their heightened surveillance, makes them an easy target for law enforcement to persecute. Of women who were arrested due to their abortion, 59% were BIPOC, and 71% utilized public defense as they could not afford their own counsel. Many of the women arrested faced pregnancy complications due to poor sexual health resources, such as inadequate contraception to prevent unintended pregnancies. If women of color had the same resources as affluent and white women, the complications of unintended pregnancy and the need for abortions would decrease significantly.
Women of color lack both the socioeconomic resources to prevent unintended pregnancies and the ability to legally and safely receive abortions. BIPOC women are on the lowest end of the wage gap, creating economic barriers for women seeking reproductive care such as contraception or routine sexual health checkups. These disparities leave roughly 15% of BIPOC women in the US at risk for unintentional pregnancy. When the fines for abortion can be tens of thousands of dollars, these women cannot take the gamble of getting an abortion in an anti-abortion state. If a woman unintentionally becomes pregnant, it is currently perfectly legal for her to travel across state lines to receive an abortion in a pro-choice state. However, this is not a viable option for all people. Mobility is one of the biggest issues for BIPOC women–lack of economic resources constrains where and when these women can receive abortion care. This issue is even greater for the majority of Black women who have the highest frequency of abortions, the lowest socioeconomic standing, and live in Southern states where abortion laws are most restrictive. The socioeconomic conditions of BIPOC women produce a cyclical issue of unintended births, which in a post-Roe world produces severe consequences for these women.
What Needs to be Done?
Humans deserve the right to privacy and a life not governed by the opinions of others. By restricting abortion access and increasing surveillance, the US is impeding the international right to autonomy over one’s reproduction. While there are a host of issues to be addressed regarding the ban on abortions, the problem of data mining falls into the lap of tech organizations. If user data were no longer collected, there would be no sensitive data to be used in the court of law. Democrats like Elizabeth Warren and Cory Booker have attempted to address these security issues, encouraging tech giants to crack down on the release of data and what types of data can be collected in the first place. That being said, there have yet to be any laws passed to hold these organizations accountable and enforce more stringent HIPPA laws.
Tech giants need to continue to encrypt user data—which would make the question of privacy a due process matter—rather than permitting third-party entities to sell user data for a quick buck. The encryption of user data requires law enforcement to get either verbal consent or a warrant. In some cases where there is no court-ordered warrant, law enforcement cannot be granted access to a user’s data. Making law enforcement undergo a bureaucratic process to obtain their desired information, rather than purchasing it, evens the playing field between law enforcement and civilians. The financial power law enforcement holds would no longer be used to speed up and increase the frequency of the prosecution process. In legal battles, the prosecution would no longer be able to use data obtained in an unjust way against defendants. In the case of abortion, certain text messages or search histories that can now be easily obtained due to a lack of user protection would no longer be readily available. This strengthens democracy by ensuring a due process of law where information cannot be unfairly acquired.
Protecting user data is imperative to both the user and the organization. If individuals believe their information is being leaked on certain websites or apps, the usage of those sites and apps will decrease, ultimately diminishing profit margins. While the simple rule of supply and demand ultimately decides whether or not an organization exists, it doesn’t constrain what they can do without their customer base knowing. It is up to the government to implement a policy that protects users’ data. The Biden Administration has proposed a policy to strengthen HIPPA in cases of abortion, yet there has been no movement on the policy. It is imperative for women seeking abortions that HIPPA laws are strengthened to avoid the use of medical records in legal battles. The issues with privacy extend beyond abortion into every part of our lives–something everyone must realize.
Being Savvy Online in a Post-Roe World:
Privacy is important, and in an increasingly polarized climate, it is imperative to know how to ensure your sensitive information is secure. When using an online browser, it is important to pay attention to the privacy settings that collect your user data. If you are worried about searching for information related to abortion, turn off your search history or use an incognito browser to get rid of the digital paper trail. Furthermore, when apps or websites ask for locational data, do not grant access if you are worried the data could be sensitive to your situation. If you need to make a confidential phone call to an abortion provider, try using another phone number through apps like Google Voice that cannot lead back to your personal identity. Finally, if you have a MacOS or Windows laptop, you are able to lock and encrypt your data–something every individual should do regardless of their circumstance.
While it should not only be on the individual to protect their personal data, there are certain measures that can be taken to prevent unfair prosecution from occurring. Maintaining one’s autonomy is a right, and while it may call for extra measures to secure it, the benefits could save a life.
Featured Image Source: Cathryn Virginia for NBC News