With the June 24 Dobbs decision overturning of Roe v. Wade and Casey, the US Supreme Court withdrew the nationwide blockade against the intention of many states to ban abortion to a greater or lesser degree. Depending on where you live, abortion may already be illegal or will shortly become so.
Texas, where I live, is one of the more aggressive states, having effectively banned most abortions since last fall by authorizing private citizens to sue anyone who assists in an abortion. To the best of my knowledge, the penalties for performing abortion focus mainly on the providers. But any woman who wants an abortion now faces a new forest of legal complications, including the possibility that law enforcement agencies may obtain extremely private information such as data from period apps in building a case that an abortion was performed.
In a recent Vox online piece, Sara Morrison pointed out that although women concerned about keeping their possible pregnancy status private should probably get rid of their period apps, that is not the only way you can be spied on, although period-app companies have a rather poor record when it comes to data privacy anyway.
Most media companies have a boilerplate clause as part of that agreement everybody pretends to read (and nobody does), which allows them to share information with legally constituted law enforcement agencies that have a reason to obtain it. So even if a woman sent a private text message to her closest friend saying that she thought she was pregnant, and a state police investigation thought it was relevant in prosecuting an abortionist, they could legally obtain that message.
The concept of privacy lies mostly in tatters these days for anyone who spends any amount of time online, which is pretty much everybody. While the Fourth Amendment to the US Constitution guarantees the right to be secure in one’s “persons, houses, papers, and effects,” it does allow searches (presumably including online ones) in cases where a crime is suspected and a warrant for the search can be justified.
What is so different today from the circumstances in 1792, when the Bill of Rights was enacted, is that all of us leave electronic trails that are in legal grey areas in many cases. Simply being on social media and using one’s mobile phone creates gobs of data that clever analysts with adequate resources and access to commercial databases by means of search warrants can use to create an incredibly intimate portrait, including one’s pregnancy status or attempts to obtain an abortion.
Morrison says the ultimate solution is better data-privacy laws. And she may be right. The problem with this is that the entire economic basis of social media relies on the violation of the kind of privacy that data privacy laws would protect. So unless the Big Tech giants figure out an entirely new revenue model, their heavy hands on the scale of justice will outweigh any desire on the part of the general public to be more private online.
This is not an easy column for me to write, because I am personally opposed to abortion. At the same time, I realize that trying to enact (or revoke) a law that creates a situation which is hugely unpopular among a large segment of the public leads to situations in which law either loses respect or unduly harsh measures are used to enforce it. Probably some of both will happen in the coming months as the nation readjusts to the new circumstances surrounding abortion.
Judging from the way Morrison wrote her article, she seemed to take the point of view of a woman who finds herself pregnant against her intention and wants to get an abortion, but lives in a state where abortion is now illegal. What are the options?
Over half of current abortions are achieved by means of medication, which means the combination of mifepristone and misoprostol taken to induce a spontaneous abortion. Many states are or will shortly take steps to make such medications illegal for use in abortion, and the natural first thought of many—to order them online—leaves one open to surveillance as explained above.
The next option would be to travel out of state to a place where abortions are still performed. But in a state like Texas, even helping someone with travel arrangements could be grounds for a lawsuit—remote grounds, maybe, but who wants to do something that leaves their friends liable to be sued? And everyone’s whereabouts are being tracked 24/7, or at least the whereabouts of your phone, unless you turn it off. So as things stand, there are really not many places to hide.
Far from solving the problem, the Dobbs decision has brought abortion into the spotlight of public consciousness and debate in a way that perhaps hasn’t been equaled since the original 1973 decision that legalized it by judicial fiat nationwide. The real problem, the one that lies deeper than online privacy, or legal decisions or codes, is a cultural one.
We live in a hypocritical culture which both promises untrammelled freedom and withholds from nearly everyone the means to realize that freedom, which is illusory in any case. The culture has convinced millions of women that pregnancy and childbirth is simply not an option compared to all the other treasures of the world, and if a woman becomes a mother without meaning to, she must correct the error even if it means the death of an innocent being.
This is a serious distortion of how the world is, and correcting it is going to take more than the passage or revocation of a few laws or judicial rulings. But if Dobbs and its fallout get us to thinking about these things, there is at least hope that the truth will eventually emerge. And it is only the truth that makes people truly free.