Future Tense

How Abortion Seekers’ Phones Could Be Used Against Them Post-Roe

Eyes surrounding a woman seen from behind who's looking at her smartphone
Grace Molteni/Mother Jones

This story originally appeared in Mother Jones and has been reprinted here with permission.

Let’s say you’re like me: a person between the ages of 18 and 50 with a uterus. Imagine you work a job that pays the bills, but you don’t have as much time off as you’d like, and working from home isn’t an option. When you find out you’re pregnant, you decide—for any number of valid reasons—that you want to terminate that pregnancy.

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For many people, that got easier in December. Until then, the Food and Drug Administration mandated in-person visits before patients could receive mifepristone, a hormone blocker used in medication abortion—a non-invasive alternative to surgical abortions that’s growing more and more popular. The restriction was first lifted temporarily, as one of the agency’s pandemic measures; it’s now permanent, which signifies a major expansion of access to abortion by mail.

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You may already know all that. But you may also live in Texas, Georgia, or Mississippi, states with draconian abortion laws—and just three of the 19 where telemedicine for abortion is outlawed. (Or you may live in a state with a trigger law that would ban abortion should the Supreme Court overturn Roe v. Wade, as the leaked draft opinion suggests will happen.) And the nearest clinic might be at capacity, or out of state altogether, and you can’t afford the costs of travel.

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So you try the next quickest option: googling “how to buy abortion pills.” You might encounter a site like Aid Access, launched by Dutch doctor Rebecca Gomperts, who conducts telemedicine appointments and arranges shipments of mifepristone and misoprostol—another drug used in medication abortion—from abroad.

As you search, your phone and computer log your every move: the search history stored on your Google Chrome browser, your internet service provider’s record of incoming and outgoing requests, the financial details tracked by your payment processor, the emails you send, and more.

You might not think much about your digital footprint—after all, your searches are private, right?

Not really. As the line between our digital and physical selves fades, surveillance researchers and reproductive rights advocates increasingly see our data as the next big front in the war on abortion. Law enforcement has new tricks to land convictions for miscarriages or post-ban abortions; anti-abortion activists are making sophisticated updates to tried-and-true methods of stalking, harassment, and disinformation.

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Until the FDA loosened its rules, getting a medication abortion in some parts of the country meant flouting the law—and leaving an incriminating digital trail. Gomperts, who also provides surgical abortions in international waters, has had her boat tracked and chased away from ports of call, and payments to her organization blocked. Ursula Wing’s online sales of low-cost mifepristone earned her a $10,000 fine, a raid of her home, two years’ probation, and the seizure of all her electronics; she thinks being listed in an online database contributed to her getting caught. (The online sale of mifepristone was legalized a year into her sentence.)

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Surveillance doesn’t just show up in cases like those. Search histories mentioning abortion medication have been entered as evidence in fetal death cases prosecuted as crimes—a scenario that, like targeted harassment by anti-abortion protesters, crops up much more often. Today, law enforcement has more data extraction tools at its disposal than ever, and privacy regulations still trail behind.

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Civil rights attorney Cynthia Conti-Cook, a technology fellow at the Ford Foundation, researches the use of digital footprints as evidence in prosecutions for fetal death or improper disposal of fetal remains. Law enforcement, she says—drawing on tech justice group Upturn’s study of “mobile device forensic tools”—can easily duplicate all data on a user’s phone into one convenient, searchable, thousands-of-pages-long file.

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Such tools, Conti-Cook says, aren’t “futuristic or speculative at all,” and have few limits on the scope of their use. In fact, more than 2,000 government agencies—from police departments and prisons to public schools and housing authorities—use them to extract and share data in investigations of all kinds. In an analysis of public records, Upturn found that 44 law enforcement agencies alone had extracted data from 50,000 phones between 2015 and 2019, using their findings in prosecutions for sex work, public drinking, shoplifting, cannabis possession, and more.

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News coverage of digital forensics often celebrates its role in prosecuting serious felonies. But when it comes to reproductive rights, Conti-Cook says, the same tools “will be a powerful [asset] to police and prosecutors in a more criminalized landscape” for abortion seekers.

Conti-Cook’s research examines the cases of pregnant women whose personal data helped secure their convictions. In 2017, Latice Fisher, a Black woman, arrived at a Mississippi hospital after losing a pregnancy at home. Because she had admitted during an earlier gynecological exam that she was pregnant but never returned for an ultrasound, suspicious medical officials handed her medical records to police, who launched an investigation. Since Fisher had voluntarily surrendered her phone, prosecutors were able to scrape her search history, which included searches for misoprostol, and used it as evidence that she had intentionally “killed” her fetus. She was charged with second-degree murder.

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Conti-Cook argues that Fisher’s case isn’t an anomaly but a “sobering forecast” of what’s to come. “Large carve-outs and exceptions” give law enforcement wide latitude to utilize “mass extraction tools,” she says, which will “inevitably expose everyone—not just pregnant people—to this sort of digital self-incrimination.” Even in the realm of reproductive rights, it’s not just abortion at stake: Conti-Cook says she’s recently heard from home-birth advocates worried about similar surveillance.

Digital tracking of pregnant people and abortion providers doesn’t stop with law enforcement. The anti-abortion movement has its own forensics operation: Individuals will film people who visit or work at clinics, recording details like license plate numbers as patients and their escorts come and go. Christian fundamentalist anti-abrotion group Operation Rescue maintains a database, AbortionDocs.org, that lists the names, workplaces, and sometimes home addresses of abortion providers.

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In the late 1990s, the “Nuremberg Files” website—an AbortionDocs.org precursor run by militant anti-abortion activist Neal Horsley—listed the personal information, home addresses, phone numbers, and photos of 200 “abortionists” with fake wanted posters.

That had real-life ramifications. In 1993, David Gunn and George Patterson, two Florida doctors whose home and clinic addresses Horsley published, were shot to death within five months of each other.

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After a prolonged legal battle, a federal appeals court ruled Horsley’s site a threat lacking First Amendment protections, and ordered it taken down.

Today, there are relatively few restrictions on private surveillance, and courts often won’t grant injunctions to targets of anti-abortion surveillance or other monitoring. Some advocates see that as tacit encouragement to groups like Operation Rescue.

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Other forms of surveillance, such as geofencing—the use of location data to target people in a given area—are completely legal and widely used by all sorts of businesses. (“It’s the same technology that sends you Target coupons when you walk inside a Target,” says Conti-Cook.)

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Weaponized by anti-abortion activists, it can yield more destructive results. People anxiously waiting at a clinic, scrolling on their phones, have been served ads from “crisis pregnancy centers,” religious anti-abortion operations that often target low-income women with misleading information on “abortion reversal,” an unsafe, unscientific method of stopping medication abortions by flooding the body with the hormone progesterone. As Mother Jones’ Stephanie Mencimer reported, one California center was caught using surveillance tech to send targeted ads.

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So far, Massachusetts is the only state to ban geofencing near clinics, the result of a 2015 lawsuit in which a Boston technology company was barred from sending targeted ads on behalf of anti-abortion clients. And anti-abortion groups, many flush with cash, can easily pay to fill the first few pages of Google search results with crisis pregnancy centers. That’s “just how Google ads work,” says the digital security expert who spoke to me. “It means that anybody with enough money can willfully distort access to a free and open internet.” Meta (formerly Facebook) has netted more than $140,000 from ads pushing abortion “reversal,” which have been viewed more than 18 million times, predominantly by minors.

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“We’ve decided in America that abortions are a consumer good,” said a digital security expert I spoke with, “and not a right.” (The expert requested anonymity because of the sensitive nature of their work around abortion rights.)

In a recent report, the Center for Intimacy Justice, which advocates equality in advertising for sexual health and wellness, found that businesses serving the health needs of women and gender-diverse populations faced unequal, often more severe monitoring and regulation of their digital ads. Advertisers under the categories of “pregnancy,” “fertility,” or “pelvic pain” frequently had their ads flagged as “adult content” and removed from Facebook, while ads for erectile dysfunction treatments or anti-abortion propaganda stayed online. Meta told the New York Times that it doesn’t enforce a “blanket ban” on adult content but maintains stringent semantic distinctions on how sexual and reproductive health companies can promote products.

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Lawmakers’ attempts to regulate what’s said and done online can cut into what limited protections do exist. The EARN IT Act, first introduced in 2020, passed the Senate Judiciary Committee in February. If enacted, it would revise the Communications Decency Act—which grants internet providers immunity for illegal third-party content—with measures meant to curb online child abuse, such as compelling companies to provide the government with “backdoors” around any and all encryption, and requiring internet providers to scan much or all of their users’ activity for potential red flags. The bill has been decried by privacy advocates, who argue that it would endanger activists, sex workers, and other marginalized people.

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Another extreme bill in Oklahoma’s Legislature would establish a statewide government database of all people seeking abortions. Each person would be assigned a “unique identifying number” and connected with a “pre-abortion resource” assistant who is legally barred from referring actual abortion services.

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But there’s also growing legislative momentum around consumer data protections. In 2018, California passed the California Consumer Privacy Act, one of the most stringent privacy laws in the country, which allows users to opt out of the collection and sale of their data. And Democratic House Reps. Anna Eshoo and Jan Schakowsky, alongside Sen. Cory Booker, recently introduced the Banning Surveillance Advertising Act, which would curb ads targeted on the bases of “protected class information, such as race, gender, and religion, and personal data purchased from data brokers.” Location data, though, would still be fair game.

In order to completely evade this multipronged ecosystem of surveillance, the digital security expert says, pregnant people would have to think and act like spies: concealing their browsing activity with a virtual private network, using an encrypted search engine, creating decoy emails, buying prepaid debit cards with cash, and mailing abortion medication to locations other than their home addresses.

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“We have this idea of what privacy means that comes from a time when to violate it was more work,” the expert says.

More realistically, they say, pregnant people, providers, and support networks can learn their rights and engage in small-scale disruptions to avoid detection—especially in states that reward family, friends, or medical professionals for snitching on abortion seekers. That might mean using a public Wi-Fi connection or a decoy email “to figure out how to break up this long chain” of data. Digital Defense Fund, for example, provides cybersecurity resources and trainings to people seeking and providing abortions.

In these ways and others, Conti-Cook says, “digital autonomy and bodily autonomy are very closely related.” And as their overlap grows, she sees a new opportunity to reevaluate what it means to give either—or both—away. The digital security expert I spoke to is “frightened” by what a post-Roe future would bring, not only for abortion access but for the right to privacy in the technological age. Cases like Griswold v. Connecticut, which protects married people’s rights to contraception, or Lawrence v. Texas, which strikes down laws that criminalize same-sex sexual conduct, draw on the same right to privacy the court carved out in Roe when it established the right to abortion—and which the current court’s draft opinion seems to dismiss.

“If I don’t have a right to myself,” says the digital security expert, “then I sure as fuck don’t have a right to my phone.”

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.

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