From Roe v. Wade upholding the right to privacy in 1973 until 2020, NAPW has documented over 1,700 arrests and false medical interventions on pregnant people. Kavattur said people overwhelmingly enter the carceral system or a surveillance system as a result of being reported by medical professionals or someone they know. In most cases, according to Kavattur, it is either a medical professional, an intimate partner, ex-partner, friends, or someone the pregnant person knows who has reported them to law enforcement. Then, law enforcement searches through their cellular and technological devices to find circumstantial evidence that will build their case to say the person had an abortion. Kavattur clarifies that law enforcement is not surveilling period tracker apps to identify people, but if people are reported to the authorities, they may then try to subpoena the devices in order to criminalize and support the case against the pregnant person.
In the case of Purvi Patel in Indiana, whom NAJW provided the amicus brief for, Patel experienced a miscarriage in 2013 and was convicted of feticide and sentenced to 20 years in prison based on evidence that she texted a friend about ordering abortion pills. Patel’s conviction and sentence was eventually overturned, but she was dealt a three-year long legal battle and served over a year in jail.
“Irreparable harm happened to her for experiencing a miscarriage, simply based on texts that she sent,” Kavattur said. “Quite frankly, we’ve all texted our friends all sorts of things that might not happen in the end. Not that anyone should be criminalized for searching anything. You should search whatever you want to search, and you should text whatever you want to text. That shouldn’t be criminal.”
In the 2020 case of Latice Fisher in Mississippi, a client of NAJW, Fisher experienced a stillbirth and was charged with second-degree murder. The initial charges were thrown out, but prosecutors looked for a way to charge her and prove it was a self-managed abortion and not a miscarriage. Prosecutors got access to her cell phone and used the fact that she had searched for how to induce a miscarriage and how to buy misoprostol (one of two medications used in medication abortions, but also used for miscarriages). These search results were used as sufficient evidence to charge her. After joining forces with Laurie Bertram Roberts of the Mississippi Reproductive Freedom Fund and Color of Change, advocates were able to help get Fisher’s bail lowered, get her released from jail, and eventually have the charge dropped.
“Criminalization harms and does not heal,” Kavattur said. “Pregnant people should be getting health care, not handcuffs.”
Kavattur said the continued criminalization and surveillance of pregnant people will deter people from seeking health care, especially in a post-Roe world, where there is a lot of confusion surrounding what is currently legal.
“It has a chilling effect on getting prenatal care,” Kavattur said.
Criminalization is deeply traumatizing for pregnant people who don’t receive adequate health care and are then separated from their families. Then, should the case go to trial, Kavattur adds that defendants are “at the whim, often of prosecutors and judges” who may or may not consider the evidence as presented.
While the Fourth Amendment protects people from unwarranted and unreasonable searches and seizures and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) is meant to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge, there are ways for law enforcement to get around them. The “third-party doctrine” says that people who voluntarily give information to third parties, such as banks, phone companies, internet service providers, email servers, or apps, have “no reasonable expectation of privacy” in that information. This allows the data to be used as evidence against them.
Apps have terms and conditions filled with legalese that aren’t always clear to the average layperson and often don’t have an opt-in or opt-out option to storing or surveilling users’ data. Most users do not know that their information is not just stored locally on their device, but can be stored on a cloud, or third-party server that is open to law enforcement. Smartphones also collect data on a person’s location, the images on their phone, and contact lists, and store this information in third-party servers. Kavattur said users should read through the terms and conditions of any application they download more closely and see if there is information that says the data can be subpoenaed.
Saskia Coplans, co-founder and director of Digital Interruption, said deleting apps is not enough to protect a person who is seeking an abortion. If you want all data wiped from an app, people must contact that app directly to have their data deleted from their servers. According to Coplans, any use of mobile technology or any online footprint will carry some element of risk.
“It’s really key to start understanding what you’re doing [online] and what risk you’re prepared to take when you’re sharing your data,” Coplans said. “There’s just no way of stopping it. The solution is don’t take your phone with you if you don’t want anyone to know where you’ve been. If you think that the data that you’re giving away might be giving away elements of activities that are important that you do, but the law doesn’t necessarily agree with, taking action to hide that data from the wider world is the only way to hide it from law enforcement.”
Legislatively, the My Body, My Data Act of 2022 in the House would create a new national standard to protect personal reproductive health data. By minimizing the personal reproductive health data that is collected and retained, the bill would prevent this information from being disclosed or misused, directly targeting personal data collected by entities not currently covered under HIPAA, including data collected by apps, cell phones, and search engines.
“It’s important to pass legislation that is not just about abortion and digital safety but broad net,” Kavattur said.
Kimberly Inez McGuire, the executive director of URGE: Unite for Reproductive & Gender Equity and a steering committee member of the Abortion On Our Own Terms campaign, said the surveillance has created a reproductive police state that will further target Black and Indigenous people of color, as well as LGBTQ+ people.
“When we talk about privacy, I am incredibly concerned about young people in particular because young people often don’t even have privacy in their own homes,” McGuire said. “It is people who face other barriers to privacy and are already being subjected to scrutiny, criminalization, and policing, who then, when faced with an unintended pregnancy and buoyed by these new, horrifying laws and what is effectively, a reproductive police state, who will be most impacted.”
McGuire said people should reach out to the Repro Legal Helpline for legal advice if they have concerns about being investigated or arrested over their reproductive decisions.
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