A leaked United States Supreme Court draft opinion published by Politico on Monday and soon after authenticated by Chief Justice John Roberts is a blaring signal that the Court will overturn the 1973 reproductive rights case Roe v. Wade. Abortion access has already been dramatically curtailed in many states around the US, but a decision from the Court would turn back the clock nearly 50 years, reinstating historic abortion bans in some states and paving the way for newer “trigger laws" to take effect.
That seismic shift hasn't come yet. The leaked draft opinion is just that—a draft—and it's possible the justices will move in another direction. The Supreme Court is expected to issue its official decision in June. Currently, people around the country continue to seek legal, albeit often restricted, abortions. The leak raises important questions, though, about what criminalization of abortion might look like in different states, how far it might extend, and what people can do to protect themselves and minimize their digital footprint as they inevitably continue to seek the medical intervention.
A critical component of Roe v. Wade is its determination that the “right of privacy … is broad enough to encompass a woman's decision whether to terminate her pregnancy.” But comprehensive digital privacy is challenging to achieve in an age of widespread user-tracking, location-tracking, and corporate data retention.
Organizations like Digital Defense Fund and Electronic Frontier Foundation offer detailed guides for steps you can take to protect your digital privacy while researching and seeking an abortion or related services. When it comes to a potential dismantling of Roe, though, it remains to be seen how far criminalization will extend in different states and what exactly the landscape will look like. In the meantime, researchers and reproductive health experts note that incorporating a few basic privacy strategies could go a long way later.
Before diving into research and logistics related to having an abortion, consider how public a given communication channel is. Using a social network where most posts can be seen by anyone or posting in a group with a lot of members (like a big Facebook group or Telegram channel, for example) carries the risk that your posts could be discovered or revealed.
“If you know that you’re doing something that is risky, just be cautious about how you talk about it on the internet—or don't talk about it on the internet at all,” says Kat Green, managing director of Abortion Access Front. “And if you can avoid being explicit about what you’re asking for and what you’re talking about—[it's] better not to text somebody unprotected on SMS and be like, ‘how do I get abortion pills?’”
Across the board, abortion access proponents recommend talking about anything that might carry risk on an end-to-end encrypted messaging app like Signal with the disappearing/auto-deleting feature turned on so your messages don't hang around on your device or that of the person you're talking to. Apps like Signal also offer end-to-end encrypted calling and even video chat to keep snoops off your calls (and your call and text logs off your phone company's records).
While it may be increasingly important for people in the US to consciously consider what they're posting when it comes to their own abortions or those of loved ones, Hayley McMahon, an independent public health researcher who studies abortion access, notes that the goal of this advice is not to chill speech, but to keep people safe.
“I don’t ever want to tell someone they shouldn’t talk about their experience or they can’t talk about their experience, because there’s tons of power in abortion storytelling,” McMahon says. “But I think people need to have all of the information and an understanding of the risks, and then they can make choices about what to say where.”
Researchers emphasize, too, that people in the US should know and feel secure in their rights when it comes to dealing with law enforcement. If you are being questioned by police, you can simply say, “I am exercising my right to remain silent and I want to speak with an attorney.” Resources like the Repro Legal Helpline can help connect you with specific legal advice. Additionally, lock your devices with a strong, unique PIN number, keep them locked, and simply ask for an attorney if a cop attempts to compel you to unlock your device.
McMahon also adds that in the very rare case of a complication with a medication abortion, people should not feel pressure to disclose the treatment to clinicians in the emergency room or other health care settings. Simply saying, “I think I'm having a miscarriage” will suffice.
“People need to understand that it's impossible to tell the difference between spontaneous miscarriage and medication abortion,” McMahon says. “Medication abortion simply induces a miscarriage. And of course, we typically want everyone to disclose their health history to their clinician, but in this case, the treatment is the same, so nothing is lost by not disclosing that information.”
Using apps, browsing the web, and using search engines are all activities that can expose personal details, creating a major challenge in controlling the flow of personal information as people research or seek abortions. And often by the time someone is seeking an abortion, they have already generated data that could reveal their health status. Period-tracking apps, for example, gather data that may seem benign but is clearly sensitive in the context of potential abortion criminalization. In one recent case, the Federal Trade Commission investigated and sanctioned the fertility-tracking app Flo Health for sharing user health data with marketing and analytics firms, including Facebook and Google. And researchers have also found numerous examples of health websites sharing personal data with third parties or conducting targeted ad-tracking without adequately informing users and in violation of their privacy policies.
Using a search engine that doesn't track potentially sensitive user data, like DuckDuckGo, and browser extensions that block web trackers, like EFF's Privacy Badger, are all steps you can take to significantly cut down on how much of your browsing data ends up in tech companies' hands. And consider analog options, if possible, for recording and storing reproductive information, like a notebook or paper calendar where you log details of your menstrual cycle.
One of the most pernicious and complicated aspects of attempting to rein in your personal data as you research or seek an abortion is the question of how to mitigate the collection of your location data. Always turn off location services for as many apps as possible—iOS and Android both make this relatively easy now. And if you're traveling to receive an abortion, you might consider leaving your phone at home or keeping it in a faraday bag for as much of the trip as possible.
“A lot of those data-generating activities that you’ve already engaged in in the past are already out there,” says Andrea Downing, founder of the nonprofit Light Collective and a security and privacy researcher focused on patient populations and social media. “You can delete apps from here forward, turn off location services, stop using a fertility app, and those are all great steps. But it's also reasonable if people can't remember everything all the time. Patient populations are susceptible and vulnerable online, and we need to focus on protecting them.”
McMahon, the independent public health researcher, echoes this sentiment, noting that any small steps a person can take to defend their data are positive and should be celebrated.
“I want to emphasize, it is definitely not someone's fault if they forget to do any of these things and then get criminalized,” she says. “People may feel like they made a mistake if they reach out to others for help, but no! You did a normal human thing and the system is criminalizing you.”
While issues of digital privacy are extremely salient to people seeking abortions, they impact every marginalized and disenfranchised group. And as the Light Collective's Downing points out, they ultimately affect everyone.
“Roe v. Wade is about privacy, it was always the core thing underlying that case,” she says. “So even if you are not a person seeking an abortion, you need to be thinking in terms of how your rights may be next.”
