As the shockwaves from the bombshell publication of a leaked draft Supreme Court opinion overturning Roe v. Wade continue to reverberate, questions and fears about our digital privacy and what comes next abound. To be clear: Right now, abortion is still legal in this country. But according to the Guttmacher Institute, half the states are certain or likely to ban abortion if the court overturns Roe, and anti-abortion extremists are already pushing for a nationwide ban as soon as they get the chance. All of these roads lead to the same destination: the criminalization of people seeking reproductive health care, and of doctors and nurses who seek to provide it. If and when that does happen, our digital privacy will matter more than ever.

The lack of strong digital privacy protections has profound implications in the face of expanded criminalization of reproductive health care. In light of these breathtaking and authoritarian attacks on bodily autonomy, we must fight with new urgency to ensure that people maintain control over their personal information. If we fail, the repressive surveillance techniques and powers that police and prosecutors have for decades used to wage the racist wars on drugs and terrorism will be marshaled to track, catalogue, and criminalize pregnant people and those seeking basic information about reproductive health issues, putting tens of millions of people at risk of police harassment and worse.

Laws that criminalize reproductive health are already being used by police and prosecutors to surveil, penalize, and control people who are disproportionately Black and Brown. According to the National Advocates for Pregnant Women, the past 15 years have seen a shocking spike in arrests and prosecutions for crimes related to stillbirths, miscarriages, and alleged drug and alcohol use during pregnancy. Of the 1,600 people prosecuted for these offenses since the Roe decision in 1973, 1,200 were charged after 2006, and those targeted were disproportionately Black and Indigenous women. And in March, a Texas district attorney and sheriff conspired to indict and arrest a 26-year-old woman and charge her with murder, after the woman self-managed her abortion. In 2017, an online search for the abortion medication misoprostol was used to charge one woman with second-degree murder. In 2015, a series of text messages with a friend about getting an abortion helped convict another of feticide and child neglect.

Expanded criminalization of abortion will become an increasingly attractive target for prosecutors and police, which is why we must be prepared to digitally defend ourselves against corporate and government surveillance. We also must redouble our efforts to push states to take real action to protect our digital privacy. Some states have passed significant law reform in this area already.

Over the past 20 years, digital technologies have rapidly advanced, changing the way we communicate, seek and share information, travel, work, play, document and track our own health metrics, find love, and more. Billion-dollar industries have taken shape during this period, working behind the scenes to create, share, trade, and sell extremely sensitive data about hundreds of millions of people, buoyed by leaps in computing power and the declining cost of data storage.

Police and prosecutors piggyback on all of this corporate surveillance in what some have called a “public-private surveillance partnership.” In many cases, the government can obtain extremely detailed information from corporations about people’s finances, internet use, and communications without ever going to a judge, and without a shred of evidence to show someone is involved in criminal activity. When cops are armed with court orders, virtually none of the information collected and processed in what has been called the “surveillance capitalist” marketplace is off limits to the government. And even for types of personal information, like cell phone location data, that courts have said police can only force companies to turn over with a warrant, government agencies are sidestepping the warrant requirement by paying to access sensitive information instead of going to a judge.

In response to these profound transformations, civil rights advocates have pushed for consumer privacy protections to give people control over their personal information. In Illinois, civil rights advocates successfully fought for consumer privacy protections to limit what kinds of information companies can collect about us and the ways they can share and use these data. The ACLU is working across the nation to introduce state legislation to prevent law enforcement from making overly broad requests to try to identify everyone who visited visited a particular location (such as an abortion clinic) or searched online for particular keywords (such as abortion care). In Massachusetts, the abortion rights coalition is calling on the state legislature to pass a law to prevent the sale and trade of cell phone location data, which can be used to track who visits a reproductive health clinic.

We have also fought and will continue to fight for statutes and court rulings requiring police to get warrants before using invasive digital surveillance techniques like cell phone location tracking or making demands for our digital papers like emails and private web chats. And in some important cases, we have won these protections.

But the criminalization of abortion shines a glaring and unkind light on a bleak reality: Even warrant protections will not stop invasive digital surveillance of people seeking or providing abortions if doing so is a crime. That’s because if police can demonstrate probable cause that a person has committed or will commit a crime, they can obtain a search warrant allowing a search of someone’s most private information — the contents of our emails and text messages, our location history, the photos and private chats on our cell phone, and more. As what is considered criminal activity expands to include seeking and providing essential health care, privacy activists and lawmakers must likewise shift our approach.

In some cases, police should be prevented from acquiring or using particularly invasive technologies and techniques even with a warrant. In others, legislatures must impose strict limitations on their use, restricting surveillance warrants to only the most serious kinds of criminal investigations, excluding investigations related to sexual health. States that seek to preserve access to abortion should take extreme care to protect information created or maintained in their jurisdictions from being disclosed to out of state officials investigating sexual health related matters. Technology companies should change their internal policies and procedures to ensure that they notify their users of all government requests for their data before turning anything over unless a court order bars them from doing so, giving people a chance to fight back against surveillance aimed at their personal health information. And state legislators should enact strong laws ending nonconsensual collection and sale of sensitive information like location and biometric data, give people more control over how their personal information is collected and used by private companies, and outlaw the use of search word and geofencing warrants, which allow police to conduct dragnet surveillance.

Unfortunately, it’s not likely that the states that adopt abortion bans will be amenable to restricting law enforcement’s ability to use digital surveillance to investigate and prosecute crimes related to bodily autonomy. That means that while we build the political power we need to defend our ability to control if and when to have a child, it’ll be up to each of us to protect ourselves and each other.

The fact that we are about to take one of the biggest strides backwards in our country’s history should serve as a reminder to us all that we should never accept living in a surveillance society, no matter what technology is used to carry it out. Privacy sits at the heart of democracy, and we must fight like hell to ensure its relevance in 2022 and the decades to come.

With the increasing likelihood that the Supreme Court will overturn Roe v. Wade, the rights and lives of millions are on the line. But this fight isn’t just taking place at the Supreme Court. Here’s how you can take action.

No matter where you live, you can join the fight and support our partners fighting for abortion rights. A good place to start? Take the pledge to show your support.

The ACLU is joining partners in a nationwide mobilization on Saturday, May 14. RSVP now to join a Bans Off rally near you.

https://www.plannedparenthoodaction.org/rightfully-ours/bans-off-our-bodies#events

Can’t attend a rally or would prefer a more remote option? Text FIGHTBACK to 826-23 to join ACLU alerts for more actions and updates on the crucial work ahead – delivered right to your phone.*

Check out our guide to discussing abortion rights at the dinner table.

https://www.aclu.org/news/reproductive-freedom/your-mini-guide-to-discussing-abortion-rights-at-the-dinner-table

As we head into the midterm elections and prepare for the 2024 national election, we must center abortion in the public debate for all elected officials, and support candidates who unequivocally support abortion rights. You can ask your elected officials and local candidates where they stand on reproductive rights, and demand commitments to protecting abortion access. To fight back, research your candidates and spread the word.

Across the country, abortion funds are helping people access care by providing financial assistance to patients in need. You can help expand the impact by donating to an abortion fund today.

For more information on how to get support when seeking an abortion, check out the National Network of Abortion Funds.

You can also donate to help the ACLU continue our fight for reproductive freedom. Together, we will work toward a better future — one in which everyone is free to make decisions about their own lives and futures.

In courthouses and state legislatures across the country, the ACLU is challenging abortion restrictions and promoting abortion access in close collaboration with local providers and our partners. We’ve already shown we can win, and our strategies continue to evolve as the fight for bodily autonomy does. Our advocacy efforts have helped pass legislation protecting or expanding abortion access in Illinois, Massachusetts, New Jersey, and Rhode Island. And after years of advocacy, we won a federal lawsuit challenging a Food and Drug Administration (FDA) rule that required patients seeking mifepristone, a safe drug used for abortion, to pick up the pill in- person at a medical facility. The FDA has permanently repealed the in-person dispensing requirement since that victory, expanding essential access to abortion in states across the country.

Whatever the Supreme Court decides about Roe, the ACLU will never stop defending people’s right to decide when and whether to have a child, and to ensure that everyone who has decided to have an abortion has access to the care and support they need. The ACLU has been fighting for abortion access since before Roe v. Wade was decided, and the work continues. We are committed to using the full force of the organization to do this. We will continue to fight in the courts, in statehouses, and in Congress, at the ballot box through ballot measures and other races, and in the streets — not just today — for as long as it takes.

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