Future Tense

The End of Roe and the Threat to Free Speech Online

Illustration of a torn apart blue Keep Abortion Legal Sign, a shattered Twitter post, and a cut-up period tracking app with a drop on it. All three are broken showing the three aims the pro-life aim to destroy.
Photo illustration by Slate. Photo by the National Organization for Women.

The impending Supreme Court ruling on Roe v. Wade will likely be a catastrophe for the health, safety, autonomy, and privacy of pregnant people in America. At the same time, it’s bringing to a head the twin crises of digital life: the right to speak without government interference and the right to online privacy.

Step one in the extremist playbook is making abortion illegal. Step two is preventing pregnant people or health care providers from discussing it online. It is no accident that Republican politicians’ efforts to outlaw abortion and exert state control over women’s bodies have moved in tandem with their crusade to provide the government with control over what people can say, write, or teach. Conservative extremists want to force everything from websites to news to book apps for children to conform with their 1930s version of cultural norms.

Advertisement
Advertisement
Advertisement
Advertisement

In recent years the focus of their campaign has been Section 230 of the Communications Decency Act, a law I co-wrote in 1996 with Republican Rep. Chris Cox. Despite a coordinated attempt to misinform the public about Section 230, it’s simple. The law says the person who creates and posts online content is the one responsible for it. And it preempts any state laws about regulating First Amendment rights online.

Section 230’s protections, although criticized by some Democrats, have never been more important than in the face of Republicans’ all-out war on reproductive freedom.

In coming months well-funded anti-choice extremists will launch a coordinated campaign to deluge websites and social media companies with lawsuits over user speech in Republican-led states where just seeking information about an abortion could become illegal. Just as anti-abortion activists worked to attack reproductive rights in statehouses across the nation, these fundamentalists will use the same playbook of coordinated laws and legal actions against the online speech of those they dislike. They’ve already targeted libraries and bookstores over LGBTQ books and classified health care for trans youths as child abuse.

Advertisement
Advertisement

With 230—which preempts state laws when it comes to online speech—those suits will get tossed out. But without 230, these suits will have the effect the extremists are gunning for: to ban even the mention of abortion in any forum, anywhere.

Advertisement

They don’t need to win these suits, only overwhelm the smaller companies that lack the resources to fight these claims or intimidate the big tech companies into taking down any posts on the topics of abortion or reproductive health care. The last reform to section 230, a bill called SESTA-FOSTA, resulted in marginalized groups—women, people of color, LGBTQ+ folks, and sex workers—being silenced when tech companies tried to avoid lawsuits. Meta has already banned discussion of abortion on its internal messaging platform. Is there any doubt it would do the same to Facebook and Instagram in the face of conservative pressure?

Advertisement
Advertisement
Advertisement

Step three in the reactionary playbook is hijacking the digital tools that we depend on in modern life and using them to track down people who get abortions.

I’ve been sounding the alarm for years that location data leached from phone apps is ripe for abuse. In a world where extremists make abortion illegal, that goes from a problem to a matter of life and death. Shady data brokers have already tracked women to and from Planned Parenthood health centers and sold their information to anyone with a credit card. That’s just the beginning.

Advertisement
Advertisement

When abortion is illegal, researching reproductive health care online, updating a period-tracking app, or bringing a phone to the doctor’s office all could be used to track and prosecute women across the U.S. It amounts to uterus surveillance.

Advertisement
Advertisement

Texas-style bounty laws and laws being proposed in Missouri to limit people’s ability to travel to obtain abortion care also raise the likelihood that the investigation and harassment of women will be outsourced, with a profit motive.

Congress must protect Americans’ privacy from abuse by far-right politicians who want to control women’s bodies.

First, we need to pass a consumer privacy law to restrict how Americans’ private data is collected, used and shared. Reducing the amount of sensitive data that companies hold, and the number of companies that have that data, would also make it harder for radical right-wing prosecutors to sift through private records to control women’s private decisions.

Second, I have a bipartisan bill called the Fourth Amendment Is Not for Sale Act. It says the government can’t buy information from data brokers to avoid getting a warrant. Passing our bill would make it harder to buy up big databases of information without warrants and then hunt down anyone seeking an abortion.

Advertisement
Advertisement
Advertisement

These bills wouldn’t fix the privacy and civil liberties disaster that will accompany the repeal of Roe. That is why we need to pass the Women’s Health Protection Act to codify Roe v. Wade into federal law, which will require putting more pro-choice elected officials in office. But, in tandem with a strong defense of Section 230 and the First Amendment, they would go a long way to ensuring pregnant people maintain a measure of freedom over their own bodies.

The United States is poised to become one of the only nations on earth to move backwards on women’s rights. No privacy or speech protection can change that. But that reality makes clear the dangers of failing to protect the right to free expression and privacy are no longer hypothetical. They’re already here.

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

Advertisement