With states individually implementing a patchwork of laws restricting or permitting abortion, advocates worry that personal data will become yet another front in the post-Dobbs war. With nearly a quarter of states banning or restricting abortion, there are limited guardrails protecting data from law enforcement during an abortion investigation. A coalition of Democrats is hoping to overhaul current privacy laws to give consumers more agency over their personal data, including the right to delete their information.
WASHINGTON — Latice Fisher of Mississippi experienced a stillbirth and was charged with second-degree murder when investigators unearthed online searches on how to buy misoprostol, an abortion drug.
Even before the Supreme Court’s June 2022 Dobbs v. Jackson Women’s Health Organization decision, abortion prosecution was not a new phenomenon: According to Pregnancy Justice, there were 1,396 criminal arrests for pregnancy-related cases between Jan. 1, 2006, and June 23, 2022. “People should not have to worry about being surveilled or prosecuted simply for providing or seeking reproductive health care,” Hirono said in a statement to CQ Roll Call.
And it’s unlikely that the measure will be taken up in the Republican-held House, meaning for now, consumers will have to rely on existing protections. While the proposed changes to HIPAA would protect personal health information, it would apply only to entities that are required to comply with HIPAA, such as doctors and insurers. And there are certain circumstances in which health data would not be protected, such as if the patient opts to move their health information onto a third-party platform like a smartphone app.
There are several types of data that are vulnerable during an abortion investigation. Law enforcement has an arsenal of tools that they can use to obtain personal data, like geofence warrants that can be used to require companies like Google or Apple to identify every device from an area near an abortion clinic during a specified time.
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