What Overturning Roe v. Wade Could Mean for Data Privacy

Quick Hits

• Overturning Roe v. Wade allows states to criminalize abortion
• Law enforcement could subpoena data from tech companies to pursue convictions
• Social media platforms could censor content related to abortions
• The interpretation of a woman’s right to privacy would be drastically changed

Earlier this month, a leaked draft opinion indicated the U.S. Supreme Court intends to overturn Roe v. Wade, a nearly 50-year-old ruling that legalized abortion. Amid the public response and confusion to the leaked draft, another issue has come to the forefront: privacy.

Data privacy has increasingly become a hot-button issue as technology ingrains itself deeper into our everyday lives. However, Congress has been reluctant to establish privacy legislation at the federal level, leaving it up to individual states to determine how their residents’ data should be collected and used by businesses.

In the instance of overturning Roe v. Wade, a lack of clear privacy legislation could allow law enforcement in states that outlaw abortion to request data from tech companies and social media platforms to be used as evidence in criminal cases.

A WIRED article referenced a case where a Mississippi woman was indicted on second-degree murder after prosecutors used her online search and purchase history as evidence of an unlawful abortion. This revives the debate about whether organizations should be required to share private user data with law enforcement, especially when the legality of the alleged behavior varies by state.

The article suggests that social media platforms might begin removing or censoring abortion-related content to keep themselves from entering a legal gray area.

“It’s an example of what happens when something is illegal in some states and not in others,” civil rights attorney Conti Cook told WIRED. “The companies tend to deal with [these issues] in a blanket, categorical way that doesn’t always protect the people on their platform.”

Further, the primary basis for the original Roe v. Wade decision was an individual’s constitutional right to privacy. Specifically, it was the “penumbra of rights” established by the First, Third, Fourth, and Ninth Amendments. Overturning Roe and rejecting that interpretation brings into question how deeply the privacy rights of women will be eroded. In a country where privacy is regulated by sector, it could be a slippery slope.

For example, the Health Insurance Portability and Accountability Act (HIPAA) regulates how private medical information is handled and shared. It applies generally to entities involved in providing healthcare. However, health-related personal information does not receive protection under HIPAA when, say, Garmin or Apple receives data about your heart rate from your smartwatch.

So context becomes more important—and more uncertain—than ever. Without comprehensive privacy legislation at the federal level, the impact on privacy rights for women will vary not only from sector to sector, but also from state to state. And the consequences could be criminal.

Although what exactly comes next is unclear, what is clear is that our understanding of privacy—what constitutes it and how it must be protected—will change.

No official ruling has been given on the future of Roe v. Wade, but a final decision is expected to be published in the next two months.