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Following the Supreme Courts decision overturning Roe v. Wade, experts discuss abortion-related data privacy concerns.

As societys reliance on technology has increased in recent decades, both individuals seeking and opposing abortion services have found that they could access online resources aligned with their respective goals. People seeking abortions could use technology to find nearby abortion clinics and reproductive health guidance, while abortion opponents have used geolocation data to disseminate targeted ads to those visiting specific abortion clinics.

Today, in the wake of the Supreme Courts ruling in Dobbs v. Jacksons Womens Health Organization, technology is creating new complicationseven perhaps a double-edged sword. As the ever-evolving digital sphere increases access to safe abortion resources, digital surveillance of those seeking and providing abortions is rising to unprecedented levels with little regulation on what information is protected.

Facebook messages, emails sent through burner accounts, apps that track menstrual cycles, and geolocation data are just a few examples of potentially incriminating digital footprints that confront people seeking abortions. Law enforcement capabilities are seemingly boundless. A woman in Nebraska was recently arrested after police uncovered private Facebook messages that implied she was trying to help her teenage daughter get an abortion.

Even after the U.S. Supreme Courts 1973 ruling in the landmark case Roe v. Wade, cultural taboos and restrictive state laws presented significant barriers for pregnant individuals seeking abortions, resulting in U.S. residents crossing state boundaries to obtain the procedure safely and legally. But today, the imperatives of cross-border travel and the digital communication needed to arrange access to abortion services prompt new questions about how regulatory agencies and lawmakers can and should address digital privacy in a post-Dobbs era.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) currently allows abortion providers to provide law enforcement with patient information. Employees who may receive reimbursements from their employers for traveling to another state for an abortion are also not protected by HIPAA.

Federal lawmakers are clamoring to address the looming privacy implications of digital communications related to abortion. A proposed American Privacy and Data Protection Act, for example, would classify reproductive health data as sensitive and thus protected. In a separate matter, the Federal Trade Commission appears to be positioning itself to take legal action against a company for licensing data that reveals users whereabouts, including visits to abortion clinics.

Although the future after Dobbs still remains hazy, a responsive regulatory framework might emerge to protect the privacy and autonomy of those seeking abortions. In this weeks Saturday Seminar, scholars discuss the digital landscape of data privacy both before and after the Dobbs decision, and they put forward solutions for protecting those who seek abortions.

The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week,The Regulatory Reviewpublishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.

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Digital Privacy in the Post-Dobbs Landscape - The Regulatory Review