A Year After Dobbs, Federal Privacy Legislation to Protect Abortion Seekers Remains Stalled
Legislative efforts have suffered due to little Republican interest and a lack of urgency in Congress to address privacy issues.
Introduction
In the wake of last year’s Supreme Court decision to reverse Roe v. Wade, concerns have been raised about the potential misuse of digital health and location data to track and arrest individuals seeking or receiving abortions. These fears were supported by incidents such as Nebraska police serving a search warrant to Facebook’s parent company Meta for messages related to an illegal abortion. Advocacy groups and lawmakers have called for legislation to protect reproductive health data, but little progress has been made in Washington. This report examines the current status of federal privacy legislation and the challenges involved.
Lack of Urgency in Congress
Despite urgent pleas from advocacy groups and lawmakers to address privacy issues in the aftermath of the Dobbs decision, there has been little movement in Congress to pass legislation. Many lawmakers, including Rep. Sara Jacobs, D-Calif., have expressed frustration at the slow progress. Rep. Jacobs introduced the “My Body My Data Act” last year, which limits the collection of reproductive and sexual health data and extends privacy protections beyond the scope of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). While the legislation has gained support from Democrats, it has struggled to gain bipartisan support.
Rep. Anna Eshoo, D-Calif., a co-sponsor of the bill, acknowledges that Republicans are unlikely to take up the legislation but believes it is important to build support for these policies for when Democrats regain the majority. The legislation has gained support from civil liberties and reproductive rights groups, who emphasize the need to protect the privacy of individuals seeking and providing reproductive care.
Success in Regulatory Action
While legislative efforts have faced obstacles, the Biden administration has taken steps to protect reproductive health data through regulatory action. President Biden signed an executive order tasking the Federal Trade Commission and the Department of Health and Human Services with protecting abortion services. In April, HHS proposed a rule that would strengthen existing privacy protections under HIPAA by prohibiting healthcare providers from disclosing reproductive healthcare data during investigations into legal abortions. This rule has gained support from 24 state attorneys general.
States with pro-choice leadership have also taken action to protect reproductive health data, passing laws that restrict the sharing of data about legal abortions with states conducting criminal investigations. California lawmakers are even seeking to ban reverse search warrants that could potentially target abortion seekers.
Challenges in Privacy Protection
Experts note that the lack of high-profile cases involving digital evidence in abortion criminal cases may be due to several factors. Companies that receive law enforcement requests are often subject to initial gag orders, and abortion-related investigations may not be explicitly labeled as such. Additionally, without federal legislation, many state and agency protections fall short. The HIPAA rulemaking only applies to states where abortion is legal, and applying protections to all states would require action from Congress.
Legislators are expected to force a vote on legislation protecting access to abortion nationally ahead of the Dobbs anniversary. However, protecting other forms of metadata, such as private messages and geolocation history, requires more comprehensive federal privacy legislation. The American Data Privacy and Protection Act and the Online Privacy Act, introduced by Rep. Zoe Lofgren, D-Calif., and Rep. Anna Eshoo, respectively, are two such pieces of legislation that aim to provide comprehensive privacy protections.
The Role of the Private Sector
While legislation is crucial for protecting privacy rights, the private sector also plays an important role in safeguarding consumer data. Concerns about reproductive health privacy have led companies like Google and fertility and reproductive tracking apps to implement privacy measures. For example, Google has promised to stop collecting users’ location data for visits to reproductive health clinics, and apps like Flo have introduced anonymous mode options. However, Andrew Crawford of the Center for Democracy & Technology emphasizes that companies should embrace best practices for protecting reproductive health data, even without legislation.
Conclusion
Although there is a greater awareness of the need for privacy legislation to protect abortion seekers, little progress has been made in Washington. Advocacy groups and lawmakers continue to push for federal privacy legislation while seeking support from Republicans. While the Biden administration has taken regulatory action to protect reproductive health data, comprehensive federal legislation is needed to address the wider range of privacy concerns. It is crucial for both government and the private sector to prioritize the protection of sensitive health data and provide robust safeguards for individuals seeking and providing reproductive care.
<< photo by Dannie Jing >>
The image is for illustrative purposes only and does not depict the actual situation.
