Data Surveillance After Dobbs

BY CHARLES PIERSON

Photograph by ev on Unsplash

With its decision in Dobbs v. Jackson Women’s Health Organization, the US Supreme Court’s far-right majority has eliminated the constitutional right to abortion recognized in 1973’s Roe v. Wade. The country is now split roughly in half between pro-choice and antiabortion states. The legal landscape is in almost daily flux as state abortion bans are challenged in court.

Trevor Noah, host of the satirical Daily Show, summarized the situation this way:

Ever since the Supreme Court decided that having a child is a sacred choice between a woman and her state legislature, abortion laws have been chaos. Because, you see, some states banned abortion, some states are protecting abortion, and other states banned abortion but then their courts unbanned those bans so abortion is legal again until they re-ban it.

Big Brother Is Watching Women

How will states enforce abortion bans? In her June 24 New Yorker article, “We’re Not Going Back to the Time Before Roe. We’re Going Somewhere Worse,” Jia Tolentino describes how twenty-first century technology will be used to enforce eighteenth-century morality. Tolentino writes that:

Search histories, browsing histories, text messages, location data, payment data…prosecutors can examine all of it if they believe that the loss of a pregnancy may have been deliberate. Even if prosecutors fail to prove that an abortion took place, those who are investigated will be punished by the process, liable for whatever might be found.

Have you searched on your phone for abortion pills? Latice Fisher did and was charged with second-degree murder after her child was stillborn. Fisher, who Tolentino informs us was “a Black mother of three who made eleven dollars an hour as a police-radio operator,” had performed searches on her phone for the abortion drugs mifepristone and misoprostol. There was no evidence that Fisher had taken either drug. Nor was there evidence that her stillbirth was not genuine. Those facts didn’t save her from several weeks in jail. Fortunately, the Mississippi Reproductive Freedom Fund and Color of Change were able to get the charges against her dropped. The ordeal cost Ms. Fisher three years of her life.

A woman’s phone can rat her out in other ways. For the low price of $160, a data-tracking company will provide a list harvested from smartphone location trackers of people who have visited out of state abortion clinics Who buys these lists? Anyone who wants $10,000 badly enough. Texas law SB 8 allows private citizens to sue abortion providers or anyone who “knowingly … aids or abets” performance of an abortion. That could include the Uber driver who takes a woman to Planned Parenthood. HB 8 allows the snitch to collect a judgment for $10,000—a de facto bounty. Paying $160 and making $10,000 is a mighty attractive return on investment.[1]

Even technology designed to help women can betray them. Menstrual period tracker apps like Clue or Flo can reveal that a pregnancy has ended before term. That can tip off prosecutors that an abortion has occurred. Deleting the apps won’t help. Your phone has other ways to inform on you. Prosecutors scrutinize web searches, smartphone location data, and visits to websites about abortion. Texts, too. You may have sent a text announcing that you’re pregnant or that you’ve taken abortion pills. None of this intrusive technology existed in 1973. Jia Tolentino is right to predict that the coming years will be worse for women than the period before Roe.

The Guardian quotes Cooper Quintin at the Electronic Frontier Foundation:

There’s a 100% parallel to climate change – it gets framed a lot as an individual consumer issue when it’s really up to corporations and institutions that are doing the most damage and need to do the most work to solve it….

[C]ompanies have the most power to protect users…. First, I would really love for companies to stop working with data brokers, and stop selling location data to these data brokers…. [But the] most important thing companies can do is to reduce the amount of data they store on their users, especially since they may not have the power or ability to refuse a legal request like a court-ordered subpoena.

Police can access your data with impunity. Fourth Amendment protections against “unreasonable searches and seizures” apply only to state actors. Data collection companies are private actors. There is no prohibition on their selling their lists to police. In fact, you’ve probably already consented. Your phone’s user agreement probably contains a provision stating that your carrier can’t give out your data except to law enforcement agencies.

* * *

Dobbs will force many women across state lines for abortions. Abortion foes are determined to stop them. Antiabortion legal groups are working with Republican legislators on draft bills modeled on Texas’ HB 8. Jason Rapert, a Republican state senator from Arkansas who helms the National Association of Christian Lawmakers, draws a comparison to laws against human trafficking. (Both categories of laws punish people who cross state lines for immoral purposes, get it?)

An attractive alternative to traveling possibly hundreds of miles to out of state abortion clinics is abortion pills which can be delivered through the mail. “Medication abortions,” as they are called, make up about half of all abortions. What is called the “abortion pill” is actually two pills—Mifepristone and Misoprostol—which are taken together. The pills can be prescribed remotely by telephone or video chat. The Food and Drug Administration has approved Mifepristone and Misoprostol for use through the 10th week of pregnancy. Because these drugs are FDA-approved, both President Biden and Attorney General Merrick Garland have stated unequivocally that states cannot ban them. Anti-choice states disagree and lawsuits have already begun.

State constitutions can confer more extensive rights than the US Constitution. Pro-choice groups are bringing lawsuits arguing that abortion is guaranteed under their state constitutions. No state constitution expressly guarantees a right to abortion. However, some state supreme courts have interpreted their state constitutions to include a right to abortion. But, as Dobbs illustrates, courts can change their minds; and Louisiana, Alabama, and West Virginia have amended their constitutions to preclude a right to abortion. Abortion foes are now pushing constitutional amendments to ban abortions in Kansas, Kentucky, and Missouri.

An Atwoodian Future?

Outlawing abortion in half the states won’t satisfy conservatives. On June 25, the day after Dobbs was decided, former Vice President Mike Pence told Breitbart that “we must not rest and must not relent until the sanctity of life is restored to the center of American law in every state in the land” (emphasis added). Top Republicans are discussing a national abortion ban: a strange turn for a party that cannot shut up about its devotion to states’ rights.

The US may be on the brink of the dystopian future envisioned by Margaret Atwood in her 1985 novel The Handmaid’s Tale. In Atwood’s novel, the former United States has become a male-dominated theocratic dictatorship—the Republic of Gilead—in which women have few rights and are relegated to the status of breeding machines. Sound familiar? Dobbs takes the US a giant step closer to Atwood’s future.

Predicting an Atwoodian future for American women may be hyperbole. Atwood writes in the Atlantic that when she was writing The Handmaid’s Tale, she “stopped writing it several times, because I considered it too far-fetched. Silly me. Theocratic dictatorships do not lie only in the distant past: There are a number of them on the planet today. What is to prevent the United States from becoming one of them?”

What, indeed.

Notes.

1. H.B. 8 is the brainchild of a Texas state senator, Bryan Hughes, and a former Texas solicitor general, Jonathan Mitchell. They concluded that bounties would motivate private citizens to enforce abortion bans when progressive government officials refuse to. “Dozens” of district attorneys, according to NBC News, have stated that they will not prosecute individuals who violate state abortion bans. 

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