The inability to obtain a safe and legal abortion has always put lives at risk. That’s why the recent leak of a Supreme Court opinion that proposes to strip away the constitutionally protected right to abortion has prompted some to say that we are turning back the clock on reproductive rights. That’s not quite right. Why? Because the end of Roe v. Wade should be understood in the context of our vast and underregulated surveillance economy, and the reliance of law enforcement on it. It’s true that even if Roe is overturned, there will still be legal abortions available to those who live in or can travel to states where abortion remains legal. (That is, so long as Congress doesn’t pass a national ban on abortions.) But for many, the digital breadcrumbs we leave will become potential evidence for criminal investigations. The likely end of Roe isn’t just about losing control over our bodies; it emphasizes how much control we’ve lost over our digital selves.
To begin, should the Supreme Court overturn Roe, states are free not just to ban access to legal abortions, but to criminalize it. These rights-stripping laws will arrive quickly. There are the “trigger laws” already enacted in some states that will ban abortions as soon as Roe is overturned. Some proposed bills go further. Republican lawmakers in Louisiana are pushing a bill that deems abortion a criminal homicide. By redefining a “person” from the moment of fertilization, even using an IUD or emergency contraception might fall within its scope. The proposed law could also subject the person seeking an abortion, not just the provider, to criminal prosecution.
Add to this the way ordinary criminal justice works and the net of criminal liability becomes very wide. States may decide that you can be arrested and prosecuted for obtaining an abortion, broadly defined. But consider the other tools of the criminal law. People are frequently charged with attempt and conspiracy, and under the law of complicity. Surely these same tools would apply to criminalized abortion, too. Did you try and seek an abortion but fail, or just change your mind? Did you agree to help a family member obtain an abortion? Did you drive a friend to a neighboring state where abortion is legal? When states write new crimes into law, it’s up to local prosecutors to decide how to enforce them.
These issues of scope and discretion are amplified enormously by the surveillance economy we live in. We leave sensitive medical and location information behind in our apps, online purchases, browser searches, and public movements. That information fuels the virtually unregulated marketplace where data brokers collect massive amounts of personal information on millions of people.
This means that an “underground” network for abortion access in states where abortion is criminalized isn’t really possible (unless you intend to live off the grid). Use Google to search for how to obtain an abortion, for yourself or for a friend? Order pills online for a medication abortion? Use a ride-hailing app to obtain an abortion? What if investigators ask Google to reveal everyone who searched for an abortion? Or everyone who was near a suspected provider of abortion services? Police are increasingly using keyword search warrants, which are exactly what they sound like, and geofence warrants, which look for every cellphone within a specific area and time, and there’s no reason to believe that criminalized abortion would be exempt from their reach. Law enforcement agencies have found that our digital lives offer a rich trove of potential evidence, and their warrant power can provide them with access.
You might wonder whether other constitutional rights protect you here, even if Roe disappears. The answer is uncertain. The Supreme Court’s 2018 decision in Carpenter v. United States was revolutionary. For the first time, the court concluded that we have Fourth Amendment rights in corporate records that we do not possess and may not even know about. The Carpenter decision, however, involved the collection of cellphone location information compelled directly from a wireless services provider. At the moment it is unclear how broadly that case should be applied. Even so, Carpenter imposed a warrant requirement on the government; that creates an important, privacy-protecting hurdle, but not a barrier.
And the government can skirt warrant requirements when it buys data instead of compelling it. There are virtually no restraints on the government as a consumer in the surveillance economy. Federal agencies like Immigration and Customs Enforcement and Customs and Border Protection have purchased access to databases containing the location information of millions of cellphones and their users. Government lawyers have defended the legality of these purchases—and the inapplicability of Carpenter—by arguing that the government is a customer like any other.
Some women seeking abortions will face privacy threats at home as well. Many in abusive relationships already have partners who monitor their digital activity. Digital stalking and harassment is a common problem. Turning abortion into a crime can make things worse. Domestic abuse victims may face abusers who threaten to report them to the police for seeking reproductive health care, even for a miscarriage.
Faced with these uncertainties, privacy advocates have responded by offering advice on what can be done to seek information and help without fear of prosecution. These measures include using end-to-end encrypted chats and Tor for private online searches, and stopping the use of period tracking apps. These privacy protests are similar to self-help measures we’ve been warned for years to use.
In the case of abortion rights, however, these steps are less likely to help those most in need. We know that the typical abortion patient today is poor. About half of all women who obtained an abortion in 2014 were below the poverty line, with another quarter not much above it. We also know that the poor live in a unique “matrix of vulnerabilities” when it comes to privacy, technology, and surveillance. Those in low-income communities of color are often acutely aware of the privacy risks they face online. But research suggests that they are also least able to find the tools and learn the strategies to protect their digital privacy. Telling the typical person who might seek an abortion to install a virtual private network or focus on encrypted apps isn’t going to help much.
And the recourse to self-help misses the point. The coming digital insecurity for those who might worry about an arrest or prosecution for seeking, helping with, or providing an abortion in some parts of the country points to larger problems in our digital infrastructure. The leaked Supreme Court opinion shows us how few privacy protections we have. And how it’s going to get much, much worse.