Abortion, Digital Surveillance and the Problem with Privacy

Dr. Grace Tillyard is an ESRC postdoctoral researcher based at Goldsmiths College, London whose work looks at the intersections of reproductive politics and digital technologies/tech-capitalism.

Once the initial shock of Roe’s reversal in June 2022 subsided, legal experts began to highlight the ways that the Dobbs decision weakens the Constitutional right to privacy previously codified in Roe v. Wade. An outraged and nostalgic public discussion about the importance of privacy ensued. Progressive and liberal civil society groups, journalists and commentators alike rallied to defend privacy, framed as a “sacrosanct American right” without which many civil liberties would be doomed or revoked. At the same time, politicians and advocates called for increased digital privacy rights and data protection to prevent tech companies collecting and selling abortion seekers’ data. They fear that abortion seekers and providers will be criminalised in states where abortion is now banned, aided by tech-companies who will hand over personal data to the police or anti-abortion groups.  

This ‘post-roe’ landscape of criminalisation and digital surveillance is undoubtedly alarming. Already, 1,300 people have been arrested or charged in the US between 2006 and 2020 based on their pregnancy outcomes—including miscarriages, stillbirths, abortions, or neonatal losses. This number is bound to increase following Roe’s reversal, continuing the trend of disproportionately criminalizing racialised and working-class pregnant people. Data exploitation and surveillance are also playing a bigger role in criminalising abortion seekers and providers. But the solutions being proposed by advocates and politicians – and the newly invigorated public discussion over the importance of privacy and ‘choice’ – point to ongoing fault lines in liberal thinking about abortion rights on the one hand, and digital surveillance and tech-capitalism, on the other.  

As the dust begins to settle, the Dobbs decision offers an opportunity to acknowledge Roe’s failings as a privacy ruling that never secured equitable abortion access. Revisiting Roe’s history also provides important context to the current outpouring and opens up space to challenge the mainstream liberal discourse that uncritically mourns its downfall and the blow it has allegedly dealt to privacy. It also sheds light on why clamouring for increased privacy for seekers of abortion care in the face of heightened digital surveillance reproduces problematic and exclusionary strategies of the past.  

Abortion, privacy and data   

Roe’s reversal prompted widespread discussions about the future of privacy in the United States for two reasons. First, the right to privacy and the right to an abortion are connected in US law. In 1973, the Supreme Court decided Roe v. Wade, recognizing that the fundamental right to privacy includes the right to decide to have an abortion. Drawing on the protections afforded by the Fourteenth Amendment, the Supreme Court ruled that state laws criminalising abortion were an infringement of this right, relegating abortion to a matter of individual choice. Because of this, Roe’s reversal has implications for more than just the right to a legal abortion; it holds the potential to undermine the long-recognized constitutional right to ‘decisional’ privacy itself.  

This issue is intimately tied to a second kind of privacy: information and data privacy. As Alexandra Samuel points out, the idea of information privacy in the US context is only available to internet users because of the groundwork laid by Roe. Roe brought the idea of privacy rights into the mainstream, providing a foundation that would inform the emergent internet. The notion of ‘decisional privacy’ – understood as freedom from interference when making personal decisions – helped shape the concept of informational privacy, concerned with the process of gathering, using, sharing and selling personal data through digital and computational technologies.   

These entangled histories of abortion, privacy and the internet garner new and important meaning in the context of a now very real ‘post-roe’ world dominated by the digital economy and its surveillance technologies. Data has historically played a key role in criminalising abortion seekers, most of whom have been people receiving support from the state, Black and other people of colour. In one such case in 2015, digital evidence including text messages and search results were used as evidence by an Indiana court to convict a woman of “feticide” on the grounds that she ended her own pregnancy by taking abortion pills. In 2017, a court convicted one woman of second-degree murder because of an online search for the abortion medication misoprostol.  

Now that federal protections codified by Roe have been removed, abortions are partially or completely banned in at least 14 states and many legislatures – if they haven’t already – may further criminalize patients and abortion providers. Advocates fear that those who seek abortions could be exposed by private tech companies handing over or selling personal data such as text messages, emails, browser search histories and location information to governments, police or anti-abortion groups. These concerns are warranted and have been corroborated by a number of investigations, including a recent report that confirmed that brokers were selling bundles of location data of people visiting abortion clinics for a mere $160 dollars. The data showed where groups of people visiting the clinics came from, how long they stayed, and where they went afterwards. In response, advocates, civil society groups and liberal politicians are calling on tech-companies and legislative bodies to increase privacy protections of data related to abortion and reproductive health.   

The problem with privacy  

As Reproductive Justice activists and scholars have pointed out, the protections afforded by Roe as a privacy ruling were flawed and inadequate. Borne from the advocacy efforts of a largely white and affluent reproductive rights movement, Roe secured an individual’s legal right to ‘choose’ to terminate gestation but did nothing to guarantee collective and equitable access to abortion. The recourse to privacy, exemplified in the popular slogan ‘my body, my choice’, reflected the movement’s narrow political objectives and demonstrated that abortion legality over access was the priority. Critics point out that this strategy relied on those in power to effect change instead of pushing for more radical grassroots solutions that linked the issue of abortion to economic, social and racial justice. By declaring abortion an individual ‘right’ and a privacy issue, Roe depoliticised reproductive autonomy and abortion access; it framed abortion as something that should be legal and available to individual people, rather than a matter of collective reproductive liberation and justice.  

Equally, by prioritising legal abortion over other pressing issues such as sterilization and welfare, the movement failed to address the historic abuse and marginalisation of poor women of colour in the United States. As Angela Davis remarks in the seminal essay Racism, Birth Control and Reproductive Rights’, legal access to abortion championed by the reproductive rights movement did nothing to address the social and economic circumstances that prevented poor people from keeping wanted pregnancies and parenting children in safe and healthy environments.  

Crucially, the Roe decision enabled conservative legislators to pursue the legal line that if abortion was an individual’s private choice, the state had no financial obligation to support it. Emboldened by the privacy frameworks codified by Roe, conservative lawmakers passed the Hyde Amendment 1977, a provision that banned federal Medicaid funding for abortion except to save the life of the pregnant person, or in cases where the pregnancy arose from incest or sexual assault. The legislation remained in effect until Roe’s reversal and meant that while abortion remained legal it was only accessible to those who could pay for it in states that made no provisions to cover the cost.  

The Hyde Amendment also cemented an understanding that some aspects of reproduction were private – meaning protected from state oversight and management – while others were not. This had consequences for more than abortion access. As legal scholar Dorothy Roberts shows, subsequent debates around the government’s responsibility to assist with the cost of child-rearing (welfare) were influenced by abortion legislation. Under the ideals of privacy, the state would leave parents alone to raise their children as long as they could pay to do so. If, on the other hand, parenting people required financial support they were forced to submit to bureaucratic surveillance and reproductive control. Roberts shows that this policy instituted a ‘dialectic of privacy and punishment’ that policed and devalued the caregiving of low-income single mothers, Black and parenting people of colour. Meanwhile, nuclear families with money lived free from intrusion and were rewarded with government backed mortgages and tax breaks. Roe helped to establish this link between reproductive privacy and fiscal advantage.  

Data protection in a ‘post-roe’ digital era 

Acknowledgement of this history – and the role that privacy has played in safeguarding some people’s reproductive autonomy, whilst actively impinging others – is absent from most discussions about Roe’s reversal. Instead, more/better/broader privacy is being proposed as the antidote to the current political situation and a solution to heightened digital surveillance of abortion seekers and providers.  

In the days and weeks following the Dobbs decision, a number of tool-kits circulated online and on social media platforms that encouraged people to protect themselves from tech-companies and law enforcement by enhancing their digital privacy. Turning off location tracking, buying a burner phone if travelling out of state and downloading encrypted messaging apps were amongst the most common suggestions to safeguard data related to abortion and reproductive decision making.  

Civil society organisations campaigning for digital rights have also called for increased privacy protections of data concerning abortion. A public statement released by Fight for the Future demanded that online services, apps and tech companies immediately reduce the data they are collecting and storing on reproductive health and implement end-to-end encryption where possible. The American Civil Liberties Union (ACLU), meanwhile, called for collective action to fight for digital privacy, drawing a comparison between surveillance techniques that track, catalogue, and criminalize pregnant people and systems used by police and prosecutors to wage racist wars on drugs and ‘terrorism’.  

On the congressional side, Democrat representatives and senators have put forward the ‘My Body, My Data Act’, a bill with the specific aim of strengthening digital privacy and protecting personal reproductive health information, enforced by the Federal Trade Commission (FTC). The proposed protections cover sexual and reproductive health data that concerns pregnancy, menstruation, ovulation, abortion and the use of contraceptives.  

These measures may be urgent and immediate safeguards, but they also reproduce the same power blind and exclusionary logics of privacy forged by Roe. Calling on people to put additional privacy measures in place on their devices will benefit some and not others. Enhanced privacy protections won’t necessarily safeguard people whose devices are confiscated upon arrest as police can access data stored on smartphones. As history shows, low-income people and people of colour are more frequently arrested for having an abortion in states where it is restricted and criminalised. This reveals who these privacy-enhancing tool-kits and measures are aimed at.  

Calling on individuals to take charge of their data-protection is also an individualised strategy that places the onus on individual people to protect themselves instead of collectively challenging data-exploitation by corporate-tech and its public sector partners. Emulating the logics of Roe, this strategy reduces the structural political issue of abortion access to individual people’s right to data-privacy, untethering the issue from social, racial, economic and data justice. In doing so, it fails to address the ways that people are differentially surveilled and have differing levels of access, privilege and risk. Political initiatives like the ‘My Body, My Data Act’ are further evidence of this exclusionary logic. With explicit reference to the slogan of the early reproductive rights movement, the act recodes the question of privacy in the abortion context into freedom “from” intrusion in the digital era. 

Calls from organisations like Fight for the Future and the ACLU for enhanced privacy protections for ‘abortion data’ show how this reproductive issue is considered an urgent privacy matter when others simply are not. But many aspects of reproduction and child-rearing are surveilled and policed with the aid of tech-capitalism’s tools. Systems such as the Electronic Benefit Transfer (EBT) have been used by caseworkers for decades to scrutinise the purchases of parenting people on welfare. As political scientist Virginia Eubanks documents, algorithmic systems are also employed to try and predict which children might be subjected to abuse and neglect in the future. The system samples data from people who use public programmes, disproportionately focussing on poor and working-class communities, especially communities of colour. The automated tool, and the biases built into it, plays a large part in determining which people will have their children removed into foster care.  

Automated and predictive tools, biometric databases and electronic monitoring devices built by the corporate tech-sector also enable the state to pursue family separation and deportation policies through border and im/migration policing. In 2017, Immigration and Customs Enforcement (ICE) used data mining firm Palantir’s surveillance system to target and arrest families of unaccompanied children who were crossing the border, including people who came forward to claim their children in the United States. And yet, questions of ‘privacy’ are rarely – if ever – highlighted in this context of reproduction because of gendered, racialised and classist assumptions that they are not an issue to begin with. 

What now? 

Privacy rights, couched in the liberal democratic tradition, failed to guarantee equitable access to abortion and will continue to fail the project of collective reproductive liberation and justice. Instead, privacy continues to be a tool to demarcate who is and who isn’t deserving of reproductive autonomy. As a privacy ruling, Roe depoliticised abortion access, making it a matter of individual ‘choice’. In combination with the Hyde Amendment, the decision also helped to establish a link between reproductive privacy and economic advantage. In spite of this, as we enter the digital ‘post-roe’ era of abortion politics in the US, privacy is once again being proposed as a viable solution by many concerned civil society and advocacy groups. Of course, the Dobbs decision and the very real dangers of data-exploitation for abortion seekers merit attention and political action in their own right. But resorting to privacy, and the idea that autonomy can be reached through contract and ownership, ignores the history of abortion and internet politics in the US. Limiting data-privacy legislation to abortion and reproductive health further inscribes and demarcates who is shielded from surveillance and top-down reproductive control and who isn’t.  

That said, maybe the current political situation presents us with an opportunity. While Roe’s reversal closes the door on federal protections of legal abortion, it can also open a window to rethink what reproductive liberation and autonomy in the digital age might look like. In our data driven contemporary, the quest for bodily and data autonomy are inextricably connected. How, then, could the fight for reproductive autonomy and abortion access help the quest for data justice, and vice versa? And how can we collectively build technological infrastructures that take seriously and deliver reproductive liberation and justice? 

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