By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
In the wake of last Friday’s Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, abortion is now prohibited, restricted or uncertain in half of U.S. states.
(For further details about the decision, see my earlier post, Dobbs v. Jackson Women’s Health Organization: U.S. Supreme Court Overturns Roe v. Wade by 5-4 Vote, Thereby Leaving it to States to Make Their Own Abortion Laws.
Before we can address the question posed in the headline, we must consider some legal issues first. Let’s call them the three Es: extraterritoriality, enforcement, and evidence.
The First E: Extraterritorial Reach of No-Choice States
It’ll soon become clear how aggressively prosecutors in no-choice states will be in targeting state residents who seek abortions in states where the procedure is still legal. The concept of extraterritorial jurisdiction has more often been considered to date in the context of international law, when a sovereign state – aka, a country – tries to exercise legal jurisdiction outside its normal boundaries to target actions that may be perfectly legal in the other sovereign state.
Many state legal officers have already signalled their reluctance to prosecute women who pursue abortions. To do so may certainly raise considerable political difficulties. But that doesn’t mean these prosecutors – or bounty hunters, more on those in a moment – won’t pursue other targets, with the aim of making it more difficult for residents of no-choice states to obtain abortions in states where the procedure is still legal. Targeting out-of-state third parties might thereby have a ‘chilling effect’ on provision of abortions even in states where the procedure remains perfectly legal.
Possible targets for prosecution could include:
- companies that provide funds for their employees to travel out-of-state to jurisdictions where abortion is still legal;
- insurers that provide an abortion benefit for women;
- organizations that provide information to women about how to obtain an out-of-state surgical abortion;
- organizations that assist and support women in arranging travel to another state to arrange an abortion;
- those that drive the vehicles that transport women to undergo an abortion;
- organizations that provide information about how to procure mifepristone;
- pharmacies that supply mifepristone across state lines;
- clinics that provide surgical abortions in states where abortion is legal to women from no-choice states.
Legislators in some no-choice states are mulling legislation to to restrict interstate travel. Arkansas state senator Jason Rapert told the Washington Post that the Arkansas legislature may soon address this issue in a special session (see Antiabortion lawmakers want to block patients from crossing state lines). Per WaPo:
“Many of us have supported legislation to stop human trafficking,” said Rapert, president of the National Association of Christian Lawmakers. “So why is there a pass on people trafficking women in order to make money off of aborting their babies?”
Attorney General Merrick Garland issued a statement Friday in which he suggested that the Department of Justice will challenge state bans on interstate travel, as well as restrictions on dissemination of information about the availability of abortion services in other states:
We recognize that traveling to obtain reproductive care may not be feasible in many circumstances. But under bedrock constitutional principles, women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal. Moreover, under fundamental First Amendment principles, individuals must remain free to inform and counsel each other about the reproductive care that is available in other states.
Garland’s statement also addresses potential state bans of mifepristone :
“And we stand ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care. In particular, the FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.
Yet as the WaPo notes:
[Garland’s statement] suggests that if a particular state did pass a law seeking to prevent women from traveling across state lines to receive an abortion, the Justice Department might file court papers opposing such a law. That strategy was ultimately unsuccessful in the Justice Department’s opposition to the Texas law limiting many abortions, but any new state law that involved interstate travel could raise additional legal questions for the courts.
Meanwhile, states where abortion remains legal, including California, Connecticut, Massachusetts, and New York, have passed state-level measures to shield abortion providers and patients. According to WaPo::
Connecticut passed a law in April that offers broad protections from antiabortion laws that try to reach into other states. The measure would shield people from out-of-state summonses or subpoenas issued in cases related to abortion procedures that are legal in Connecticut. And it would prevent Connecticut authorities from adhering to another state’s request to investigate or punish anyone involved in facilitating a legal abortion in Connecticut.
California governor Gavin Newsom on Friday signed similar legislation, according to a statement from his office:
The Governor signed AB 1666 by Assemblymember Rebecca Bauer-Kahan (D-Orinda), which seeks to protect those in California from civil liability for providing, aiding, or receiving abortion care in the state. The measure comes as lawmakers in Missouri advance a proposal to allow private citizens to sue Missouri residents who have an abortion out of state, as well as their providers and anyone who assists them in seeking an abortion. Texas has enacted a six-week ban on abortion with a private right of action enabling individuals to sue abortion providers and others. U.S. Senator Marco Rubio has introduced a federal bill to exclude employers from receiving tax breaks if they provide abortion access to their employees.
Massachusetts governor Charlie Barker on Friday issued an executive order along similar lines, according to The Hill, The right to travel to seek an abortion in a post-Dobbs world:
At the other end of the spectrum, citing the Massachusetts Constitution’s protection of reproductive rights, Gov. Charlie Baker on signed an executive order designed to shield Massachusetts-based health care providers from liability for providing services to abortion-seekers from out of state, prohibiting extradictions, and protecting records from disclosure to states with criminal penalties against abortion seekers, allies and service providers.
Now, major constitutional and other issues are raised by many of these state attempts to exert extraterritorial jurisdiction and limit access to, or dissemination of information about, activities that remain perfectly legal in pro-choice states. I’ll raise but not discuss those legal issues further here.
The Second E: Enforcement of No-Choice Laws
What I’ll next consider is how states such as Missouri expect to be able to enforce their state statutes against women who procure an abortion out of state and other third parties. Many no-choice states are consider model legislation to create private rights of action to enforce state abortion laws that may circumvent some of these constitutional protections, according to WaPo:
The National Association of Christian Lawmakers, an antiabortion organization led by Republican state legislators, has begun working with the authors of the Texas abortion ban to explore model legislation that would restrict people from crossing state lines for abortions, said Texas state representative Tom Oliverson (R), the charter chair of the group’s national legislative council.
“Just because you jump across a state line doesn’t mean your home state doesn’t have jurisdiction,” said Peter Breen, vice president and senior counsel for the Thomas More Society. “It’s not a free abortion card when you drive across the state line.”
In relying on private citizens to enforce civil litigation, rather than attempting to impose a state-enforced ban on receiving abortions across state lines, such a law is more difficult to challenge in court because abortion rights groups don’t have a clear person to sue.
Now, where did this model legislation come from? One thing that those who argue for reproductive freedom must appreciate is just what a long game no-choice advocates have played.
At this stage, political blame is largely beside the point. Still I blame Democrats for Dobbs even more than I blame Republicans. Hear me out. Yes, I know it was Republican-appointed judges who overturned Roe. But they were able to do so because although Democrats claim to revere abortion rights, they’ve been unwilling to expend any political capital whatsoever to safeguard access to abortions. Instead, they were content merely to fundraise off the back of fear that Roe was doomed if Democrats weren’t allowed to run the national candy store. Democrats have relied on courts alone to preserve abortion access, and made little provision to do so regardless who sits in those nine Supreme Court chairs. Even before Dobbs, many women nationwide lacked access to a local abortion facility. And when such a facility was available, women often had to run the gauntlet of blockades or protests in order to have their procedure. Doctors and staff suffered harassment, vandalism, and worse (see the Guttmacher Institute’s, Protecting Access to Clinics).
Whereas Republicans say they oppose abortion outright, and have followed through on that belief and promoted judges who oppose abortion rights. There’s a logic and consistency to the Republican position – even though I disagree vehemently with it. Republicans say they oppose abortion and they’ve done their level best to translate that opposition into policy. (For more on this issue, see my earlier post on Dobbs cited above.)
As to Biden’s pathetic, past-due announcement this morning that he now supports abandoning the filibuster in order to codify abortion rights, what took you so bloody long? The May leak of the Dobbs opinion provided Democrats with plenty of notice to formulate their response. Which they should have wheeled into place the moment the Dobbs decision was announced.
But they seemingly didn’t plan ahead and instead relied on their own special brand of magical thinking to ignore what was obviously coming. Only today, 6 days after Dobbs was announced, do we get Biden’s response. Per CNN, Biden calls for dropping filibuster rules to put abortion rights into law:
President Joe Biden said on Thursday that he would support making an exception to the filibuster – the 60-vote threshold in the Senate needed to pass most legislation – in order to codify abortion rights and the right to privacy through legislation passed by Congress.
Asked about what executive action he would use to strengthen abortion rights following the Supreme Court’s decision to overturn Roe v. Wade last week, Biden said, “The most important thing … we have to change – I believe we have to codify Roe v. Wade in the law.”
“And the way to do that is to make sure the Congress votes to do that. And if the filibuster gets in the way, it’s like voting rights – it should be (that) we provide an exception to this … requiring an exception to the filibuster for this action to deal with the Supreme Court decision,” he added.
By contrast, look at this account in the 19th,This anti-abortion group shapes laws nationwide. Your state may be next.,which discusses the long game played by the Americans United for Life (AUL), a group that:
“was founded to be the law firm of the pro-life movement — at one point, that was the tagline of the organization,” said Katie Glenn, who until recently was AUL’s government affairs counsel.
These lawyers are the creme de la creme of the no-choice side. Per The 19th:
Abortion law expert Mary Ziegler told The 19th that AUL is known as the home of the movement’s “legal elite.”
AUL was founded in 1971, two years before Roe was decided. At that time, the organization pursued a legal strategy and pushed a case that it hoped would provide the alternative to a Roe framework. The Supreme Court at that time chose to hear Roe instead. But even though AUL lost that battle, it didn’t surrender. Instead, according to The 19th:
Over the past 50 years, Americans United for Life has filed more than 200 legal briefs, and helped create at least 400 anti-abortion bills in more than 40 states by writing model legislation, consulting with state legislators and defending their own laws and other anti-abortion statutes in court.
Now, with the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturning its 1973 ruling in Roe v. Wade, the nonprofit law firm has seen its biggest victory.
Americans United for Life (AUL), didn’t write the Mississippi legislation that led to the Dobbs case. But the friend-of-the-court brief it filed in the case was one of 89 that it has filed in various anti-abortion cases, including every claim that made it to the Supreme Court.
AUL’s dual-front approach of writing and defending legislation has proved an effective one that could become even more impactful as GOP-controlled state legislatures move to enact restrictive abortion laws now that access will be determined by states, experts said.
I mention the work of AUL so readers understand just how carefully the ground work was laid for Dobbs. It wasn’t a mere matter of just changing the membership of the Supreme Court that produced last Friday’s result. Over to the 19th:
After the Supreme Court took and decided Roe instead, AUL’s founders “felt like this needs to be something that someone is doing full time,” Glenn said. Their thinking, she said, was that it can’t be a handful of lawyers doing this as their pro-bono work; there needs to be a dedicated response.”
This is the group behind the model legislation, which brings me to my second legal point: enforcement of state no-choice laws. Abortion opponents are well aware of the lack of resources any state can devote to policing abortion restrictions. So, the ALU and others devised the novel ‘bounty hunting’ strategy, which empowers third parties to sue to enforce the state’s abortion laws. Per the NYT, which discusses the Texas bounty statute; the basic concept applies to similar initiatives now being mulled by other no-choice states:
The new law in Texas effectively banning most abortions has ignited widespread controversy and debate, in part because of the mechanism it uses to enforce the restrictions: deputizing ordinary people to sue those involved in performing abortions and giving them a financial incentive to do so.
The law establishes a kind of bounty system. If these vigilante plaintiffs are successful, the law allows them to collect cash judgments of $10,000 — and their legal fees — from those they sue. If they lose, they do not have to pay the defendants’ legal costs.
The enforcement provision has generated backing from those seeking to limit abortion rights but confusion and criticism among supporters of abortion rights.
“When the law first came out and I was reading it, I thought I was missing something,” said Mary Ziegler, a professor at the Florida State University College of Law who specializes in the history of reproductive law. “It almost seemed like anyone could sue anyone — and that didn’t seem right. But it was. It really is that extraordinary.”
Now, the incentives the Texas law and the model legislation establish is based on the same concept behind class action suits, which incentivize attorneys to pursue certain cases. But it’s not altogether unusual in other contexts. IIRC, California has a consumer protection that allows for similar third party suits. These provisions that incentivize third parties to purse legal claims produce an in terrorem effect. A state may pass a statute but doesn’t have to expend resources on enforcement; it relies on third parties to produce results. that accord with the policy preferences of state legislators. What is unusual is that these state abortion statutes essentially incentivize stalking.
The Third E, Evidence: How Protected Are Your Medical Records and Digital Data When State Prosecutors or Bounty Hunters Come Knocking?
Which brings me to my main objective in writing this post: to answer the question spelled out in my headline.
Let’s consider those medical records first. Are they protected?
The answer, at least in terms of federal law, is not very. According to Stat, HIPAA won’t protect you if prosecutors want your reproductive health records:
If there’s a warrant, court order, or subpoena for the release of those medical records, then a clinic could be required to hand them over. And patients and providers may be made legally vulnerable by the enormous trail of health-related data we all generate through their devices every day.
As far as health records go, the most salient law is HIPAA — the Health Insurance Portability and Accountability Act. It’s possible that federal officials could try to tweak it, so records of reproductive care or abortion receive extra protection, but legal experts say that’s unlikely to stand up in the courts in a time when many judges tend to be unfriendly to executive action. Likewise, courts could block authorities from getting medical records they’ve requested on a case by case basis, but that isn’t a certainty, and could depend on the judge.
Stat drilled down into some details – and those are even more depressing:
“People think HIPAA protects a lot more health information than it actually does,” said Kayte Spector-Bagdady, a professor of bioethics and law at the University of Michigan.
She said the federal privacy rule contains exceptions that could allow prosecutors to compel businesses to relinquish information relevant to a criminal investigation — and the same is true for other kinds of legal action, too. In other words, in a state that has outlawed abortion, HIPAA wouldn’t necessarily keep records of the procedure from being used as evidence.
Now, defendants and their counsel do have some options. Per Stat:
There are ways to try to push back. A clinic could, for instance, say, “I want to see a warrant,” or “I want to see a subpoena,” explained Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.
There have been instances in which providers’ lawyers have blocked the release of such records even when authorities have obtained the necessary documentation to get their hands on them.
“We filed a motion to quash that subpoena. And we succeeded. And the district court held that the government was not entitled to obtain those records,” California attorney Beth Parker recalled, about two abortion-related federal cases she worked on in 2004. n one, she represented Planned Parenthood, and in another, a hospital.
Yet, Stat concludes that it’s most likely that the target would eventually have to turn over medical records.
“If the request was properly served and otherwise consistent with state law, it would be difficult to challenge, although an attorney could always try to request protections for that information after the fact,” said Dianne Bourque, of the law firm Mintz.
“These types of motions are available but it’s a defense mechanism,” wrote Isabelle Bibet-Kalinyak, a member of Brach Eichler’s health care law practice, in an email to STAT. Whether they’ll succeed could depend on the presiding judge, she went on. [Jerri-Lynn here: my emphasis]
Note that while federal law won’t necessarily protect against disclosure of medical records, the new state shield statutes mentioned above will also be in play. I’m not going to speculate here on how conflicts between conflicting state statutes will play out – although I recognise that is certainly a if not the key issue. There’s no easy and obvious answer and these issues will undoubtedly be aggressively litigated on both sides. We’ll just have to wait and see how things shake out.
Let’s move onto data privacy. Loosely translated: what happens in Vegas no longer stays in Vegas. Again I turn to Stat:
“If I was giving my sister or best friend some advice, the first thing I would say is to be very careful about what data in general you’re generating,” Shachar said. “We think about medical records, but our phones collect an amazing amount of data. It’s not a good idea to send texts about your intent to seek an abortion. It’s not a good idea to use an online payment app to buy these services. You might want to leave your phone at home as opposed to taking it to the clinic. You may not even want to search for abortion providers on your phone or computer.”
Spector-Bagdady added that a large economy of health information also operates beyond the control of HIPAA, allowing the makers of period-tracking apps and other devices to share customer information with third parties in some instances.
“Some of these (businesses) have sold or shared information that is fully identified in the past with other companies such as Facebook,” she said. She noted a lawsuit the state of California recently pursued against Glow, a company that makes menstrual cycle tracking software, for sharing reproductive health information outside the app. But the violation in that case stemmed from more rigorous data protection rules in California that are not in place in other states.
In addition, neither HIPAA, nor state consumer protection rules, prohibit the disclosure of huge amounts of health information transmitted outside medical settings — in retail stores, social media sites, online shopping accounts, text messages, and elsewhere.
“The more online you are, the greater your exposure,” said Eric Perakslis, a health privacy and cybersecurity expert at Duke University. “You have your CVS account, your online patient portal, your email where appointment reminders are sent, your SMS stream on your phone. You can see how the threat compounds. It’s very difficult for people to think through that because they compartmentalize.”
Prospective patients aren’t the only ones who must now pay greater attention to safeguarding their data. The Washington Post ran an article yesterday about Planned Parenthood’s digital privacy lapses, You scheduled an abortion. Planned Parenthood’s website could tell Facebook.
The Supreme Court’s decision last week overturning the nationwide right to an abortion in the United States may have sent worried people flooding to Planned Parenthood’s website to learn about nearby clinics or schedule services.
But if they used the organization’s online scheduling tool, it appears Planned Parenthood could share people’s location — and, in some cases, even the method of abortion they selected — with big tech companies.
An investigation by Lockdown Privacy, the maker of an app that blocks online tracking, found that Planned Parenthood’s web scheduler can shareinformation with a variety of third parties, including Google, Facebook, TikTok and Hotjar, a tracking tool that says it helps companies understand how customers behave. These outside companies receive data including IP addresses, approximate Zip codes and service selections, which privacy experts worry could be valuable to state governments looking to prosecute abortions.
The details are ‘absolutely shocking’. Per WaPo:
In a video shared with The Washington Post, Lockdown founder Johnny Lin visited the Planned Parenthood website, opened the scheduling tool, input a Zip code and selected “surgical abortion” as a service. As he clicked around, a development tool let him see how data such as his IP address was being shared with Google, Facebook and many other third-party companies. Only the companies would know for sure how they use our data, but any data sitting on servers is vulnerable to potential cyberattacks or government subpoenas. In a criminal abortion case, an IP address would be pertinent because with the help of internet service providers, law enforcement can trace IP addresses back to individuals.
“This was absolutely shocking,” said Lin. “We’ve analyzed and reviewed the tracking behaviors of hundreds of apps and websites, and it’s rare to see this degree of carelessness with sensitive health data.”
And Planned Parenthood’s response was especially lame. Per WaPo:
Planned Parenthood spokeswoman Lauren Kokum said the organization uses trackers for its marketing efforts. She did not respond to questions about whether the organization plans to remove the marketing analytics from its scheduling page given new state-level abortion bans, or why trackers were running on the scheduling page in the first place.
“Marketing is a necessary part of Planned Parenthood’s work to reach people who are seeking sexual and reproductive health care, education, and information,” she said.
Seriously: marketing efforts!?! Someone at the Supreme Court provided everyone with two months’ notice that Roe was going to be overturned by leaking the Dobbs opinion. No-choice states have banned abortion within their borders and some are poised to restrict their residents from undergoing the procedure in states where it remains legal. And no one at Planned Parentood thought to turn off their trackers, which they have in place because marketing?
The WaPo article mentions exactly what types of data were shared with Google, Facebook, and TikTok. In the interest of keeping this post to a manageable length, I won’t include this information here, but direct interested readers to the WaPo link. But I’m not the only one to note that Planned Parenthood dropped the bill here. The rules of the game certainly changed on Friday and Planned Parenthood should have recognized that and dropped the trackers. Per WaPo:
As an organization that has long provided sensitive health-care services, Planned Parenthood should know better than to run third-party analytics on a scheduling page used by people in states with current or impending abortion bans, said Cooper Quintin, senior staff technologist at the privacy advocacy organization Electronic Frontier Foundation.
“It’s really irresponsible of Planned Parenthood to be creating more data about the visitors to the website and more trails of evidence about the people that are seeking their services,” he said. “Planned Parenthood needs to — right now, right this second — minimize the amount of data that they are sharing with any outside party and minimize the amount of data that they are keeping.”
Now, to be sure, the WaPo notes that leading Big Tech companies including Facebook, Google, Hotjar, and TikTok have yet to comment publicly on how they’ll respond to future requests for abortion data.
I’m not going out on a limb here when I tell you: Of course they’ll comply. Though they may hem and haw first. Axios notes in Tech companies may surrender abortion-related data:
The big picture: The companies aren’t directly answering questions about how they will respond to such inquiries now that the U.S. Supreme Court is letting states outlaw abortion.
Yes, but: The firms’ privacy policies and past conduct answer the question clearly: They may contest what they view as overly broad data requests, but generally they will cooperate with criminal investigations.
Axios spelled out further details:
Driving the news: The Big Tech platforms haven’t rushed to clarify how they will handle legal requests related to abortion prosecutions since the Dobbs decision on Friday. They were similarly silent when Axios posed the question after a draft ruling leaked in May.
And, Axios also makes clear that it’s not even necessary to get a warrant, court order, or subpoena and request the data directly from a Big Tech platform, since online data brokers offer online data for sale:
“Even though the government could get a court order or a subpoena or a warrant to access data, at the moment, there are so many different channels for it to do so without going through that legal process,” Caitlin Chin, a fellow at the Center for Strategic and International Studies, told Axios.
So at minimum, Planned Parenthood needs to up its game and stop collecting such data in the first instance. I’m sorry to have to pick on any single organization as I’m sure it’s not the only organization whose data protection is not yet ready for a post-Roe prime time. And I hope those who support abortion rights are ready to devote the same level of thought to safeguarding data privacy as the AUL does to limiting choice,
And not just Planned Parenthood. It’s past high time for Big Tech to reconsider its data collection policies. Axios concurs:
Our thought bubble: The post-Roe world will drive every tech company to review the volume of data they are collecting and ask whether they need it, how it could be harmful, and how long they want to hold it.
One potential silver lining is that perhaps our political leaders will finally get serious about enacting provisions to protect our data. Dare we hope that Dobbs provides a spur to make that happen. A starting point for that effort might be to investigate just what mobile phone data Apple and Google are allowing to be collected and sold, as I discussed in my Dobbs post cited above:
On Friday – before the Dobbs decision was announced – three senators, Ron Wyden, Elizabeth Warren, and Cory Booker, and House member Sara Jacobs, wrote to Federal Trade Commission chair Lina Khan, asking that she investigate Apple and Google for allowing the collection and sale of the personal data of mobile users:
We write to request that the Federal Trade Commission (FTC) investigate Apple and Google for engaging in unfair and deceptive practices by enabling the collection and sale of hundreds of millions of mobile phone users’ personal data. These two companies knowingly facilitated these harmful practices by building advertising-specific tracking IDs into their mobile operating systems.
Apple and Google both designed their mobile operating systems, iOS and Android, to include unique tracking identifiers which they have specifically marketed for advertising purposes. These identifiers have fueled the unregulated data broker market by creating a single piece of information linked to a device that data brokers and their customers can use to link to other data about consumers. This data is bought or acquired from app developers and online advertisers, and can include consumers’ movements and web browsing activity.
I was going to discuss what such data protections might look like. But this piece is already rather long. So I think I’ll stop here. Except to say that it’s crucial that privacy advocates work to get the maximum protection for data – and not in some way allow restrictions to be limited to the abortion context only.
The Dobbs majority has upended how abortion is regulated in the United States. But that doesn’t mean abortion-related litigation will cease in during the upcoming weeks and months. The opposite will be the case: I expect a huge upsurge in lawsuits, as many conflicting federal and state laws and regulations will now come into play, broadly clustering around issues of extraterritoriality, enforcement, and evidence. What had previously been a well-settled albeit imperfect framework will now degenerate into what I fear will be an incoherent, deeply contested mess.
Brought to us, most immediately, by a self-described ‘conservative’ majority of Supreme Court justices.
Permit me to close, finally, by answering in a couple of words, the question posed in my headline: