Facebook data, abortion prosecution, and search warrents

 The Guardian has the story:

Facebook gave police their private data. Now, this duo face abortion charges  Experts say it underscores the importance of encryption and minimizing the amount of user data tech companies can store. Johana Bhuiyan

"In the wake of the supreme court’s upheaval of Roe v Wade, tech workers and privacy advocates expressed concerns about how the user data tech companies stored could be used against people seeking abortions.  

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"when local Nebraska police came knocking in June – before Roe v Wade was officially overturned – Facebook handed the user data of a mother and daughter facing criminal charges for allegedly carrying out an illegal abortion. Private messages between the two discussing how to obtain abortion pills were given to police by Facebook, according to the Lincoln Journal Star. The 17-year-old, reports say, was more than 20 weeks pregnant. In Nebraska, abortions are banned after 20 weeks of pregnancy. The teenager is now being tried as an adult."

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And the Washington Post focuses on search warrents:

Search warrants for abortion data leave tech companies few options. Facebook’s role in a Nebraska case underscores the risks of communicating on unencrypted apps. By Naomi Nix and Elizabeth Dwoskin 

"Prosecutors and local law enforcement have strict rules they must follow to obtain individuals’ private communications or location data to bolster a legal cases. Once a judge grants a request for users’ data, tech companies can do little to avoid complying with the demands.

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“If the order is valid and targets an individual, the tech companies will have relatively few options when it comes to challenging it,” said Corynne McSherry, legal director at the privacy advocacy group Electronic Frontier Foundation. “That’s why it’s very important for companies to be careful about what they are collecting because if you don’t build it, they won’t come.”

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And then there's this to watch out for, also from the Guardian:

How private is your period-tracking app? Not very, study reveals. Research on more than 20 apps found that the majority collected large amounts of personal data and shared it with third parties.  by Kari Paul

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The Washington Post offers some advice on keeping your data private (it's not so easy...)

Seeking an abortion? Here’s how to avoid leaving a digital trail. Everything you should do to keep your information safe, from incognito browsing to turning off location tracking.  By Heather Kelly, Tatum Hunter and Danielle Abril 

No divorce in Missouri while pregnant

The post-Roe change in the availability of abortions will have many consequences, not all of them obvious.  It may prevent some divorces in Kansas City.

The Kansas City Star has the story:

Women in Missouri can’t get a divorce while pregnant. Many fear what this means post-Roe BY ANNA SPOERRE

"In Missouri, divorce cases cannot be finalized if a woman is pregnant, since a custody agreement must first be in place, multiple attorneys told The Star. That custody agreement cannot be completed until the child is born.

"The state law, while old, gained renewed attention after the Supreme Court on June 24 overturned Roe v. Wade, repealing the constitutional right to abortion. The decision immediately made abortion illegal in Missouri."

American data privacy, post Roe

 As we plunge ahead into the post-Roe era, American laws about abortion are going to be very divided. Some states will seek to criminalize not only surgical abortions, but the use of pharmaceuticals as well (and, if Justice Thomas gets his wish, perhaps contraceptives of all sorts, as well as day-after pills).*

Some states may seek to prosecute their residents who seek treatment out of state, or who order mail order pharmaceuticals. Doing so will leave a data trail, in searches on the web, emails, and geo-location data.  How private will those data be?

This is going to be an issue for tech companies, prosecutors, and legislators at both state and federal levels.  E.g. can prosecutors access and use your geo-location data to determine if you visited a clinic?  Your web searches to see if you looked for one? Your emails or pharmacy data to see if you ordered drugs?  Your medical data of other sorts?

*Here is the Supreme Court Opinion, written by Justice Alito followed by the other opinions. Justice Thomas' concurring opinion begins on p. 117 of the pdf, after Appendix A to the majority opinion which ends on numbered page 108 (but the numbering restarts at 1 for Justice Thomas' opinion).  DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL. v. JACKSON WOMEN’S HEALTH ORGANIZATION ET AL. 

Here are some thoughts on various aspects of the emerging situation.

From STAT:

HIPAA won’t protect you if prosecutors want your reproductive health records  by By Eric Boodman , Tara Bannow , Bob Herman  and Casey Ross

"With Roe v. Wade now overturned, patients are wondering whether federal laws will shield their reproductive health data from state law enforcement, or legal action more broadly. The answer, currently, is no.

"If there’s a warrant, court order, or subpoena for the release of those medical records, then a clinic is required to hand them over. 

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"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.

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"In states that ban abortion, simply the suspicion that a patient had an abortion would be enough to allow law enforcement to poke around in their medical records under the guise of identifying or locating a suspect, said Isabelle Bibet-Kalinyak, a member of Brach Eichler’s health care law practice. “They would still need to have probable cause,” she said."

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Health tech companies are scrambling to close data privacy gaps after abortion ruling By Katie Palmer  and Casey Ross July 2

"STAT reached out to two dozen companies that interact with user data about menstrual cycles, fertility, pregnancy, and abortion, asking about their current data practices and plans to adapt. The picture that emerged is one of companies scrambling to transform — building out legal teams, racing to design new privacy-protecting products, and aiming to communicate more clearly about how they handle data and provide care in the face of swirling distrust of digital health tools.

"Period-tracking apps have been the target of some of the loudest calls for privacy protections, and the most visible corporate response. At least two period-tracking apps are now developing anonymous versions: Natural Cycles, whose product is cleared by the Food and Drug Administration as a form of birth control, said it’s had calls to trade insights with Flo, which is also building an anonymous version of its app."

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From the Guardian:

Tech firms under pressure to safeguard user data as abortion prosecutions loom. Private information collected and retained by companies could be weaponized to prosecute abortion seekers and providers by Kari Paul

"Such data has already been used to prosecute people for miscarriages and pregnancy termination in states with strict abortion laws, including one case in which a woman’s online search for abortion pills was brought against her in court. 

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"Smaller companies are also being targeted with questions over their data practices, as frantic calls to delete period tracking apps went viral following the supreme court decision. Some of those companies, unlike the tech giants, have taken public stands.

“At this fraught moment, we hear the anger and the anxiety coming from our US community,” period tracking app Clue said in a statement. “We remain committed to protecting your reproductive health data.”

"Digital rights advocacy group the Electronic Frontier Foundation (EFF) has advised companies in the tech world to pre-emptively prepare for a future in which they are served with subpoenas and warrants seeking user data to prosecute abortion seekers and providers.

"It recommends companies allow pseudonymous or anonymous access, stop behavioral tracking, and retain as little data as possible. It also advocated for end-to-end encryption by default and refrain from collecting any location information."

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From the NYT:

When Brazil Banned Abortion Pills, Women Turned to Drug Traffickers. With Roe v. Wade overturned, states banning abortion are looking to prevent the distribution of abortion medication. Brazil shows the possible consequences.  By Stephanie Nolen

"The trajectory of access to abortion pills in Brazil may offer insight into how medication abortion can become out of reach and what can happen when it does.

"While surgical abortion was the original target of Brazil’s abortion ban, the proscription expanded after medication abortion became more common, leading to the situation today where drug traffickers control most access to the pills. Women who procure them have no guarantee of the safety or authenticity of what they are taking, and if they have complications, they fear seeking help.

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From the Guardian

Google will delete location history data for abortion clinic visits. The company said that sensitive places including fertility centers, clinics and addiction treatment facilities will be erased

"Alphabet will delete location data showing when users visit an abortion clinic, the online search company said on Friday, after concern that a digital trail could inform law enforcement if an individual terminates a pregnancy illegally.

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"Effective in the coming weeks, for those who do use location history, entries showing sensitive places including fertility centers, abortion clinics and addiction treatment facilities will be deleted soon after a visit."

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And while we await further developments here, the Times has an article about growing surveillance in China:

‘An Invisible Cage’: How China Is Policing the Future By Paul Mozur, Muyi Xiao and John Liu, June 25, 2022

It begins "The more than 1.4 billion people living in China are constantly watched. They are recorded by police cameras that are everywhere, on street corners and subway ceilings, in hotel lobbies and apartment buildings. Their phones are tracked, their purchases are monitored, and their online chats are censored..."

Pregnancy in Poland, a database and anti-abortion laws

 The Lancet recently reported on new pregnancy data being collected in Poland, and controversy on whether and how it might be used in enforcing Poland's very stringent anti-abortion laws.

Poland to introduce controversial pregnancy register, by Ed Holt, Lancet,  VOLUME 399, ISSUE 10343, P2256, JUNE 18, 2022  DOI:https://doi.org/10.1016/S0140-6736(22)01097-2

"A new legal provision in Poland requiring doctors to collect records on all pregnancies has been condemned by critics who fear it could create a pregnancy register to monitor whether women give birth, or track those who go abroad for abortions.

Poland has some of Europe's strictest abortion laws, with terminations allowed in only two instances—if the woman's health or life is at risk and if the pregnancy is the result of either rape or incest. Until last year, abortions had also been allowed when the fetus had congenital defects. Most legal terminations in Poland were carried out under this exemption. But this provision was removed by a constitutional court ruling following a challenge by members of the ruling right-wing Law and Justice party, which some rights activists accuse of systematic suppression of women's rights.

Rights groups and opposition Members of Parliament (MPs) say that, in light of the tightened abortion legislation, they worry that the collected pregnancy data could be used by police and prosecutors in an unprecedented state surveillance campaign against women. “A pregnancy register in a country with an almost complete ban on abortion is terrifying”, Agnieszka Dziemianowicz-BĄk, an MP for the New Left party, said. 

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Here's a recent NY Times story on the implementation of Polish anti-abortion law:

Poland Shows the Risks for Women When Abortion Is Banned. Poland’s abortion ban has had many unintended consequences. One is that doctors are sometimes afraid to remove fetuses or administer cancer treatment to save women’s lives.  By Katrin Bennhold and Monika Pronczuk, Updated June 16, 2022

"Today, Poland and Malta, both staunchly Catholic, are the only European Union countries where abortions are effectively outlawed.

"The consequences in Poland have been far-reaching: Abortion-rights activists have been threatened with prison for handing out abortion pills. The number of Polish women traveling abroad to get abortions, already in the thousands, has swelled further. A black market of abortion pills — some fake and many overpriced — is thriving.

"Technically, the law still allows abortions if there is a serious risk to a woman’s health and life. But critics say it fails to provide necessary clarity, paralyzing doctors."

What might the assisted reproduction gray market look like, post Roe?

 Yesterday I blogged about what might happen to the availability of abortion if it's constitutional protection is reversed so that individual states can ban it.  Today let's consider other medical issues involving conception, such as IVF, which involves creating embryos in Petri dishes. It may be at risk, state by state, if we find that embryos have legal rights.  But (like abortion), IVF is likely to remain legal in some states even if banned in others.

Here's an article in JAMA:

What Overturning Roe v Wade May Mean for Assisted Reproductive Technologies in the US, by I. Glenn Cohen, JD; Judith Daar, JD; Eli Y. Adashi, MD, MS, JAMA. Published online June 6, 2022. doi:10.1001/jama.2022.10163

"Across the US there exists a wide range of state laws (statutory and common law) regarding assisted reproductive technologies. For example, California courts essentially enforce agreements involving gestational surrogacy, whereas Nebraska treats such agreements as void and unenforceable and Michigan treats the creation of a commercial surrogacy agreement as a felony.

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"The leaked opinion in the Dobbs case explicitly states that “to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right” and that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion” after sentences that reference the Supreme Court’s pre-Roe constitutional cases regarding a constitutional right to use contraception.1 But on its face, the key piece of the reasoning of the Dobbs decision, that a “right to abortion is not deeply rooted in the Nation’s history and traditions,”1 would seem to apply with even more force to IVF, which was first used in the US in 1981, after Roe v Wade—and certainly was not present at the time of the framing of the Fourteenth Amendment (1868).

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"A future Supreme Court opinion might easily group embryo destruction as more like abortion because of its involvement with the destruction of “potential life.” If anything, it is easier to see how the Supreme Court might reach such a decision because there is not a countervailing claim to a woman’s gestational bodily autonomy raised by, for example, a prohibition on IVF."

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States that make laws against IVF may have difficulty enforcing them if other U.S. states continue to have legal IVF.  Laws can of course claim to apply to their citizens wherever they are, but a woman who returns home, pregnant, from a jurisdiction with legal IVF will be very hard to distinguish from other pregnant women.  So it will be easier to shut down fertility clinics (or to ban the sale of contraceptives) within a state's boundaries than to prevent state residents who can afford it from going to a neighboring state to help them with family planning.  

What might the abortion gray market look like, post Roe?

 My favorite psychiatrist points out that, before abortions became generally legal except when the woman's life was at risk, psychiatrists were often called upon to make a decision.

The ‘Open Secret’ on Getting a Safe Abortion Before Roe v. Wade  By Sally L. Satel

"Dr. Satel is a visiting professor of psychiatry at Columbia and a senior fellow at the American Enterprise Institute."

"If the Supreme Court overturns Roe v. Wade, will psychiatrists resume their pre-Roe role as arbiters of abortion access? The law once compelled psychiatrists and pregnant women to perform dishonest rituals to get abortions. Will psychiatrists once again need to be complicit post-Roe?

"Before Roe v. Wade, a number of states allowed abortions if doctors could certify that the mother’s health, not solely her life, was at serious risk. A great number of those certifications were granted by psychiatrists, some of them by the professors who taught me as a resident in the mid-1980s in Connecticut.

"Through the 1940s and 1950s, medicine advanced to the point where health problems like heart disease and tuberculosis were generally no longer considered to be indications for therapeutic abortion. As a result, psychiatric justification became the primary rationale for therapeutic abortion before Roe.

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"It was an “‘open secret,’” Dr. Richard A. Schwartz of the Cleveland Clinic observed in 1972, the year before Roe was decided, “that a woman can obtain a safe abortion in a licensed hospital if she can find a psychiatrist who will say she might commit suicide.”

"To accommodate such women, psychiatrists used a combination of empathy and civil disobedience to declare them at risk unless they were allowed to terminate their pregnancies."

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If the Supreme Court overturns Roe, laws about abortion will go back to the individual States. One difference from the pre-Roe environment is that there will now be probably around half of the states that will continue to allow legal (and hence safe) abortions.  So the gray market in states with abortion bans will also involve travel, for those who can afford it (and perhaps mail order pills for those well organized enough and for whom travel isn't a good option).

Colombia decriminalizes abortion

Sentiments about abortion seem to be shifting in opposite directions across the Americas. The NY Times has the story:

Colombia Decriminalizes Abortion, Bolstering Trend Across Region By Julie Turkewitz

"Having an abortion is no longer a crime under Colombian law, the country’s top court ruled on Monday, in a decision that paves the way for the procedure to become widely available across this historically conservative, Catholic country.

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"Mexico’s Supreme Court decriminalized abortion in a similar decision in September and Argentina’s Congress legalized the procedure in late 2020. Colombia’s decision means that three of the four most populous countries in Latin America have now opened the door to more widespread access to abortion.

"It also comes as the United States has been moving in the opposite direction, with abortion restrictions multiplying across the country, and the U.S. Supreme Court considering a case that could overrule Roe v. Wade, the 1973 ruling that established a constitutional right to abortion"