Tech preps for post-Roe

The uncertain post-Roe future

The Supreme Court decided Roe v. Wade in 1973, 49 years and approximately as many technological eons ago. While the legal precedent still holds as the law of the land, it seems all but certain Roe will not make it to 50. Many states already have laws on the books that will make abortion completely illegal within their borders the second Roe stops existing. But for all the talk of going “back” to a pre-Roe world, tech has completely changed the landscape — and has a huge role to play in what comes next.

Technology makes health care and legal information much easier to access. Fifty years ago, getting access to health care without actually seeing a doctor in person was significantly more challenging than it is today.

• Virtual doctor’s office visits, like virtual everything else, exploded in popularity due to the pandemic. Insurers expect remote care services to remain widely used even as the pandemic ebbs from its peak. For people who live too far away from or don’t have a means of transportation to in-person health care, that can be a lifeline.
• The FDA in December permanently removed restrictions on ordering mifepristone, a medication patients can take at home to end an early pregnancy, by mail or through telehealth, making it more widely available nationwide. (Although some states, such as Texas, have already moved to block access to mail-order abortion medication.)
• The internet is also a valuable source for basic reproductive health education, especially for younger users, and accurate information about applicable state laws.

But technology can also be weaponized. Tech companies face a legal nightmare if Roe is overturned, because they may be compelled to turn over user data related to obtaining abortions.

• Not only would they potentially have to hand over information about individuals seeking abortion care, but also about ride-hail drivers or online funding donors who help anyone obtain an abortion.
• The issue is that most everything is tracking you, and “anonymized” data is anything but. Dozens of studies and reports published in the past decade have found that it takes very little work to pinpoint and identify individuals out of “anonymized” datasets.
• Data brokers are already selling location data of individuals who visit abortion clinics. Vice reports it costs about $160 “to get a week's worth of data on where people who visited Planned Parenthood came from, and where they went afterwards.”

We don’t have meaningful federal privacy law, and we’re not going to anytime soon. In a post-Roe world, that leaves mountains of commercial user data wide open for cops who want to track down people trying to secure abortions.

• Although HIPAA puts limits on how your health care providers can use your data, huge numbers of entities that can track, collect and sell data related to your health care aren’t covered under it.
• Police have already used technologies such as facial recognition and geofencing to identify and arrest individuals, for example during the nationwide protests against racism and police brutality in 2020.
• Law enforcement agencies also sometimes simply buy user data on the open market instead of conducting surveillance directly, thereby avoiding Fourth Amendment concerns.

So here we are. The pre- and post–Roe worlds couldn’t be farther apart thanks to technology. While the internet threw open the door to free health care information and resources, that same internet will also be used to surveil people trying to obtain health care. Tech companies might be caught in the crossfire, and what happens next is anyone’s guess.

–Kate Cox (email | twitter)

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