Policy

Tech companies face a legal nightmare if Roe v. Wade is overturned

Tech companies will need to decide how they’ll handle dozens of states looking into their users for seeking abortions.

A photo of the Texas State Capitol building

A six-week Texas abortion ban takes aim at those aiding and abetting the performance or inducement of an abortion, even unknowingly.

Photo: Tamir Kalifa / Stringer via Getty Images

The Supreme Court is poised to end abortion rights as the U.S. has known them for five decades, creating a state-by-state approach to reproductive law that will test tech companies’ commitments to the privacy of user data and their own workers.

Chief Justice John Roberts has confirmed the authenticity of a leaked draft opinion overturning Roe v. Wade, and while he emphasized it wasn’t final, it’s clear that conservatives have the votes to significantly curtail abortion access. In the process, they’re all but certain to uphold state laws that would bring down lawsuits and investigations on people seeking to terminate pregnancies, and in some cases even on those who might transport them to clinics or advertise to them about health care options.

That could mean tech companies, which generally comply with legal information demands, could suddenly be helping states investigate and punish people who seek or facilitate abortions, and even those who help them unwittingly.

There’s little doubt that consumers will turn to tech they carry in their pockets when they’re seeking abortions. Tech, in other words, will snitch on its users thanks to the data-driven business models it’s spent decades building. After all, once the procedure is outlawed or curtailed in roughly half of U.S. states, law enforcement will take a keen interest in precise data revealing intentions and locations — and not just by those who seek abortions.

Tech companies are in a bind

A six-week Texas abortion ban, for instance, takes aim at those aiding and abetting the performance or inducement of an abortion, even unknowingly, leading to concerns that it will affect ride-hail drivers taking patients to clinics or even potentially people advertising information about abortion.

In fact, as with many types of investigations, digital tools already appear to have played a role in punishments related to abortion drugs, according to Mother Jones. And a Vice report on Tuesday revealed a data broker selling information on people who visited Planned Parenthood after pulling the data from “ordinary apps” — information that can make its way into the hands of the authorities.

These issues would likely give anyone thinking about an abortion in a state where it’s banned ample reason to increase their digital hygiene: to chat only on fully encrypted platforms, avoid saved Google searches, disguise web traffic, block ads, ditch smartphones entirely when traveling for health care and minimize data-collection and sharing by apps. All of this, of course, will make it more difficult for people to access abortion.

But it also puts companies in a bind. Facebook may have to decide how it will respond to a subpoena seeking the IP address of an abortion rights group administrator who fundraises. Google might face demands about the identities of advertisers trying to get out information on how to obtain an abortion in states where it’s illegal. GoFundMe may have to figure out how it’ll treat users raising money for out-of-state abortions. Tech and telecom, which face thousands of so-called geo-fenced warrants each year, could have to deal with demands seeking to find out who was merely near a reproductive health care clinic.

In theory, these issues may not present much conflict, even if company leadership may not like what they have to do: The big platforms say they respond to valid legal demands for information on users and, at least for Meta and Google, the amount of information they’re handing over around the world is going up all the time.

In practice, though, many of these cases involve judgment calls, both about formal law enforcement requests as well as the handling of the content they moderate. In the case of subpoenas and other demands, the companies can choose to push back — often if the requests are incredibly broad, but also potentially to protect free speech — and they seem to cough up information close to 80% of the time.

An uncertain legal landscape

The questions around how to handle these requests were all vexing for companies’ legal departments when it was just Mississippi that was going to the highest court in the land with its ban, which has a limit at 15 weeks and allows for private lawsuits.

With its ultimate decision on Mississippi, which is expected in June, the Supreme Court could bring an explosion of complexity, with states barring abortion overall or at different periods after conception that can be hard for even pregnant people to track.

In addition, all of these companies also have their own workers to worry about. Uber and Lyft have pledged to cover drivers’ legal expenses if they’re caught up in Texas’ provision on abetting abortions, and the two ride-hail companies just extended the program to Oklahoma, which passed a similar law. It’s not clear how they’ll treat requests for riders’ information, though.

Meanwhile, Apple, Yelp, Match Group and Bumble are covering employee expenses when they travel out-of-state to get an abortion. And Amazon announced, just hours before the Supreme Court’s draft opinion leaked, that it would cover up to $4,000 for travel to care for certain non-life-threatening health care expenses, nodding not just to abortion bans but the new limits on care for transgender people. It’s not clear, however, how these companies will handle abortion laws varying across dozens of states instead of just two.

What is clear is that these companies will have to contend with a legal landscape that is poised to shift profoundly. Almost any decision they take could put them in the crosshairs of state governments — some of which are increasingly willing to punish big companies for their social stances — or will end up upsetting and harming their users and workers. And they’ll have to make those decisions soon.

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