When the U.S. Supreme Court overturned Roe v. Wade last month, it put an end to safe and legal abortions in many states across the country.
But experts say the ruling also will lead to safe and legal access to reproductive health information being limited in many areas.
Robin Marty, operations director of the West Alabama Women’s Center and author of “Handbook for a Post-Roe America,” said the decision from the six right-wing justices on the Supreme Court puts the nation in a “completely new landscape” when it comes to surveillance and legal concerns.
“It’s a landscape that I don’t think any of us could have imagined,” said Marty. “People need to be aware that this landscape is shifting literally every single day. We can provide possible rules for people to follow that will help them limit their exposure, but I think if the Supreme Court has taught us anything, it’s that there’s literally no rules and no precedents anymore. … We have already seen that precedents that have stood for decades are now just being tossed aside at a whim.”
The National Right to Life Committee (NRLC), a far-right, anti-abortion group, has already drafted legislation to propose to state legislatures that would ban the spread of information online that “encourages” abortions, including news media and abortion support groups. Marty said red states, like her home state of Alabama, are likely to pass this type of legislation.
As online reproductive health information is under attack, many pregnant-capable people are afraid that their privacy online is also at risk.
Apps that track menstrual cycles, text messages among friends and Google searches for abortion resources are among the types of online activities that could put pregnant people at risk, experts say. Tech companies mining and selling personal information or court-ordered seizes of devices could potentially be used as evidence to prosecute people who performed abortions, got abortions or helped someone get an abortion in some states.
The issue of privacy has state and national Democratic leaders taking note.
During a Friday press conference, a White House spokesperson said Americans in states with restricted abortion access should be “really careful” about period-tracking apps.
And in a recent interview with the Washington Post, Michigan Gov. Gretchen Whitmer said she told her daughters to delete their period-tracking apps after the draft Dobbs decision was leaked in May.
While period-tracking apps may be a concern and may put some personal information at-risk — and isn’t unprecedented in the U.S., even before Roe was overturned — Marty says that isn’t the greatest risk.
As people navigate a post-Roe America, especially in states where access to abortion is already banned or at risk, figuring out safe ways to seek out help is complicated.
“We aren’t just trying to protect ourselves from police and surveillance anymore,” Marty said. “We need to protect ourselves from neighbors, we need to protect ourselves from friends, we need to protect ourselves from strangers. Because the next realm of this is going to be all of these aiding and abetting charges, and they are charges that are going to be able to be introduced by any person, not just someone directly affected. That’s really, really scary.”
Abortion laws in Michigan and other states
The decision to overturn Roe has caused a chain reaction in states. Some states are implementing trigger laws to immediately ban abortions and are considering going further with travel bans and other measures. Some blue states are enshrining the right to abortion in their constitutions.
Abortion is still legal in Michigan, which has a Democratic governor and a GOP-controlled Legislature, but many issues are at play.
Michigan has an abortion ban from 1931 that is still on the books but is currently unenforceable after a Court of Claims judge ordered an injunction in the Planned Parenthood of Michigan lawsuit, which is seeking to make the abortion ban permanently unenforceable.
Whitmer also has filed a lawsuit to make the 1931 abortion ban unenforceable and enshrine the right to an abortion in the Michigan Constitution.
Another line of defense against the 91-year-old abortion ban is the Reproductive Freedom for All ballot initiative that seeks to protect reproductive freedom and Michiganders’ right to make and carry out decisions relating to pregnancy, including abortion, birth control, prenatal care, and childbirth. The group turned in signatures Monday to get the constitutional amendment on the Nov. 8 ballot.
And despite the injunction on the 1931 abortion ban, some county prosecutors in Michigan said they will enforce the ban now that Roe is overturned. Meanwhile, Democratic Attorney General Dana Nessel, who is named as the defendant in the Planned Parenthood lawsuit, said she will not prosecute anyone in Michigan for providing abortions and will not enforce the abortion ban.
What not to do as abortion surveillance ramps up
Many people have warned that period tracking apps could sell information about missed periods to private companies or the government, which could then be used against pregnant people seeking abortions.
Figuring out who you can trust and then communicating through safe and secure channels is going to be crucial for pregnant people seeking abortions in states where abortion isn’t legal, Marty said.
“It’s something as simple as texting a friend, or somebody that they think is a friend, or doing a Google search on a computer that gets seized, those are the things that are the most likely to get a person in trouble,” she said.
But the U.S. government has used missed periods to target pregnant capable people in the past.
“What we are experiencing right now is actually, for the most part, something that is only new to people who have privilege, who are white, and who have financial resources,” Marty said. “We are a population that is not used to this type of intense surveillance. … But this is the world that Black people and people of color, in general, have been living in forever.”
In March 2019, Scott Lloyd, former refugee resettlement chief and anti-abortion activist under former President Donald Trump, admitted to keeping track of the menstrual cycles of teen migrants who had reported being raped in an effort to stop them from getting abortions.
Later that year, the director of the Missouri state health department admitted to monitoring the menstrual cycles of Planned Parenthood patients to identify those who had “failed medical abortions.”
Earlier this month, Nessel issued a new consumer alert focused on consumer protection measures to protect Michiganders’ personal information that companies obtain when users sign up for certain services, like apps that track fertility and menstrual cycles.
This is just what happens when the very fringiest of far-right views, when it comes to bodily autonomy, are now the ones that are in power and the ones that get to make the decisions. – Robin Marty
This is just what happens when the very fringiest of far-right views, when it comes to bodily autonomy, are now the ones that are in power and the ones that get to make the decisions.
– Robin Marty
“There are a lot of unknowns as we face a post-Roe era in this country, but one thing that remains certain is that consumers can protect themselves and their private information,” Nessel said in a statement. “I implore Michigan residents to read the fine print in the user agreements for applications and programs because their registration often gives companies the right to sell personal information to other companies that can then make it available to advertisers, or whoever wants to pay to obtain it.”
One period-tracking app that doesn’t store data in a cloud is Euki, Marty said, which could make users less vulnerable to having their information used against them.
When talking with trusted friends and family about abortions, Marty suggests using encrypted messaging apps, like Signal or Whatsapp.
“If there is anything even remotely sensitive … my general practice is to do disappearing messages. You can change that setting [on Signal] to disappear in a week, in a month, or you can have it disappear after five minutes.” Marty said.
As abortion access has been increasingly harder to come by in different parts of the country, many people in states where abortion is safe and legal have taken to social media to offer up help to cover the financial, travel, and lodging costs of getting an abortion of out-of-state.
Experts say that doing so isn’t safe for either party.
“It’s such a bad idea to ask a stranger on the internet to help you with an abortion. It’s never a good idea in the first place. But you are opening up both of you, at best, to the potential of being caught in some sort of criminal conspiracy. But even worse is the fact that you don’t know who that person really is on the other end,” Marty said.
Anti-abortion activists are known to hide out in online abortion groups and will offer services to either entrap somebody or to then convince them out of an abortion.
“I hate sounding paranoid, but that’s how you have to proceed when it comes to trying to navigate an America where abortion is illegal in half the states,” Marty said.
The extreme approach to enforcing abortion bans really picked up momentum in September 2021 when Texas implemented Senate Bill 8.
The anti-abortion legislation banned most abortions in the state, as early as six weeks with no exceptions for incest or rape, and allows private individuals to sue anyone who they believe is providing abortions or assisting someone in accessing an abortion.
“This is still new, and nobody thought that these bounty-hunter laws would be upheld,” Marty said. “And they shouldn’t be upheld, because once you go into private enforcement and vigilantism, your entire legal system collapses.”
But Marty said that there are so many reputable resources available now that strangers don’t need to be helping other strangers online.
“Luckily, that’s not something that we need right now because there are so many practical support groups and abortion funding groups,” she said. “And that’s the point of these organizations. They already have the groundwork, the network, and the legal help. So you don’t need to look to strangers when there are so many people who have been vetted and are ready to help.”
Right-wing efforts to limit access to information
Despite an abundance of support available, there are also anti-information efforts from far-right organizations that are trying to quash people’s ability to find these support networks, clinics, or medical advice.
The National Right to Life Committee (NRLC) drafted and released model legislation last month that would subject people to criminal and civil penalties for “aiding or abetting” an abortion, including “hosting or maintaining a website, or providing internet service, that encourages or facilitates efforts to obtain an illegal abortion.”
As drafted, journalists who write about abortion access and experts who release reports about abortions in the U.S. could be penalized for their work.
Rod Hicks, the director of ethics and diversity for the Society of Professional Journalists, said the NRLC’s legislation “seems to be, on the face of it, in conflict with the First Amendment.”
“You can inform people without calling them to action, and journalists do that every day,” said Hicks. “I still am optimistic that if a case that is trying to silence journalists from doing their jobs and informing people, and that becomes a law of the state, that the Supreme Court will accurately interpret the First Amendment the Constitution.”
Limiting abortion information has been a goal of many anti-abortion advocates long before the Supreme Court decided to overturn Roe.
A 2018 law in Arizona, states that “a person who willfully writes, composes or publishes a notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or for prevention of conception” is guilty of a misdemeanor.
“This isn’t anything new. This is just what happens when the very fringiest of far-right views, when it comes to bodily autonomy, are now the ones that are in power and the ones that get to make the decisions,” Marty said. “It’s been a very slow process that has happened over the last few decades. It’s just now that it’s moving so fast, more people are actually seeing it.”
Marty, who has written a book dedicated to helping pregnant people access abortions, is most concerned about how this will impact health care providers.
“As someone who runs an abortion clinic, or I guess I should say former abortion clinic now thanks to the state of Alabama, I am highly concerned about … what happens when we have a clinic that provides other reproductive health care and we’re not allowed to tell patients what’s going on with their own bodies if they tried to manage their own abortion,” Marty said. “Or what if we are not allowed to talk to a person who has started to manage their own abortion and tell them what is and is not safe about what they are experiencing at that moment?
“These are the things that I think about every day and that keep me up at night and there are no answers for that right now.”
Allison R. Donahue covers education, women’s issues and LGBTQ issues for the Michigan Advance, a sibling site of the Pennsylvania Capital-Star, where this story first appeared.
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