Online data, medical records could be used to put women in jail under new abortion laws

The Supreme Court ruled to overturn Roe v. Wade Friday, meaning lawmakers and law enforcement may have varied means to go after women and health care providers who participate in abortions in large part because of technology that didn't exist before the 1973 landmark ruling protecting abortion rights.

Period tracking apps, telehealth appointments, mail-in pharmacy requests and other online medical records and data could be used as evidence in criminal cases, experts said.

At least 26 states are likely to move quickly to ban abortion. Among them are 13 – including Louisiana, Texas, Mississippi, Idaho, Tennessee, Utah and Wyoming – that have "trigger laws" that take effect automatically or through a quick state action, according to the Guttmacher Institute, a reproductive health research and policy organization.

The National Association of Criminal Defense Lawyers concluded in a report in August that anti-abortion measures will lead to "rampant criminalization through regulatory enforcement and to mass incarceration on an unprecedented scale," especially with Roe overturned.

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Because some states have passed laws redefining "personhood" to include an unborn child, people who seek abortions or anyone who helps them could face charges of feticide or aggravated assault, the report said.

Most of the rhetoric around penalizing abortions has targeted health care workers who help people obtain abortions rather than pregnant women, said Brietta Clark, a health law and reproductive justice professor at Loyola Law School in Los Angeles. She said that unless laws clearly state women won't be prosecuted for the outcomes of their pregnancy, they are at risk.

Many states regularly bring criminal cases against women accused of putting their pregnancy at risk, including charges of child abuse, child neglect or endangerment or feticide, manslaughter and murder, said Dana Sussman, acting executive director of the National Advocates for Pregnant Women. The group documented 1,331 cases from 2006 through 2020 in which a woman was arrested, detained or otherwise deprived of her liberty for a reason related to her pregnancy. Since the Roe ruling in 1973, the researchers found more than 1,700 of these cases, which they noted is likely an undercount. The majority were economically disadvantaged women of color who often must rely on publicly run or funded hospitals.

"Our criminal codes have ballooned, the war on drugs has transformed the types of charges that are brought, how many people are criminalized and the communities impacted," Sussman said. "And we have used the criminal legal system to respond to public health crises, to mental health crises, to poverty, to education, in ways that I don't think were fully understood or fully applied back in 1973."

Even in California, which vowed to become a sanctuary for women seeking abortions, the state's attorney general issued a legal alert in January to law enforcement advising that the penal code "intended to hold accountable those who inflict harm on pregnant individuals, resulting in miscarriage or stillbirth, not to punish people who suffer the loss of their pregnancy."

Two women in California's Central Valley in 2018 and 2019 gave birth to stillborn infants and were flagged by medical staff after testing positive for methamphetamine. Both of the women were jailed and charged with fetal murder. The charges against one woman were dismissed in May 2021, and the other woman was freed in March after years in prison.

"Women who have to rely on public health care systems have the least amount of privacy. There’s a lot that the state can do through that process to basically monitor, surveil and control," Clark said.

It's possible some prosecutors will shy away from pursuing criminal charges against a pregnant person or anyone who helps her seek an abortion.

More than 80 elected district attorneys and attorneys generals, including in conservative states, have committed to using their discretion to not charge individuals or those who help them end a pregnancy with Roe overturned, said Miriam Krinsky, executive director of Fair and Just Prosecution, a nonprofit organization that advocates for criminal justice changes.

Krinsky noted that prosecutors frequently decide whether to use their limited resources to prioritize certain crimes over others.

"We are now facing a moment where elected public prosecutors are going to be the last line of defense," Krinsky said. "Just because something can be prosecuted doesn’t mean it should be prosecuted."

Tom Jipping, a senior legal fellow at the Heritage Foundation, a conservative think tank based in Washington, said "rogue prosecutors" are "going to be a problem" for lawmakers who want laws criminalizing abortion to be enforced.

"This is not about prosecutorial discretion, it’s about who gets to make the law, and it’s not prosecutors," Jipping said. "If this is something they want to do, they ought to run for the legislature."

Jonathan Mitchell, Texas’ former solicitor general who crafted the state’s abortion law SB 8, which enforces a ban on abortion as early as six weeks by enabling private citizens to sue those who aid and abet, told USA TODAY that he doesn’t believe most of the legislative efforts by states to ban abortion will be very effective.

Abortion clinics are located in more liberal cities where a prosecutor won’t bring charges or it would be hard to get juries to convict even if they do, Mitchell said. Since states do not run the Postal Service, it's difficult to detect and prosecute those who distribute pregnancy-ending pills on the black market.

“I think anti-abortion advocates who pushed for these trigger bans are going to be disappointed when they take effect,” Mitchell said. “Laws of this sort worked in 1970 or 1960 when every state banned abortion, they didn’t have abortion pills and didn’t have one of our two major political parties committed to the ideology of legal abortion. Also, they didn’t have widespread internet access. What worked in the United States in 1970 is not necessarily going to work in the United States in 2022.”

Unlike in 1973, conservative lawmakers are concerned about not just ensuring residents don't undergo abortions in their states but also outside their borders, legal experts said.

Although it's a "dicey question" whether a state can regulate abortions outside its borders, "you'll definitely see efforts to address the issue of abortion travel," Mitchell said.

If states “really want to reduce abortion, they’re going to have to resort to tactics that go beyond the trigger bans,” Mitchell said, such as what SB 8 did.

He said states are "going to have to rely on private civil enforcement to overcome the unwillingness of local district attorneys to bring charges.”

The risk of criminal charges could stop many women from receiving lifesaving medical care and affect relationships with their doctors, experts said.

For more vulnerable individuals, such as victims of rape or incest, there may be a greater reluctance to report crimes to authorities if it complicates their ability to pursue an abortion under the watchful eye of law enforcement, Krinsky said.

If there are complications from unsafe procedures and the patient turns up at an emergency room seeking help, she may be incentivized to lie to workers rather than face legal repercussions, Clark said. That could prompt doctors to flag her for law enforcement.

Despite the Health Insurance Portability and Accountability Act, a federal health privacy law, in many states, health care providers can, and sometimes must, disclose protected information to law enforcement if they suspect a crime occurred. Investigators can subpoena records from period tracking apps to build a case against someone – or engage in other types of surveillance, which has prompted women's health clinics to move to paper records or encrypted communication.

"There's a whole digital footprint question that’s going to come up a lot in these cases: What research did you do? Who did you text with? Did you go to a crisis pregnancy center?" Sussman said. "That’s a whole other level of potential surveillance that can be coordinated with law enforcement. What credit card purchases did you make? You can almost do nothing without leaving a trail."

Period tracking app Clue said in a statement that the health data it collects, including about pregnancies, pregnancy loss or abortion, "is kept private and safe." Because it is a European company, developed by a Berlin-based tech company, Clue is required to abide by strict protections to health data and "will not disclose it," the statement said.

Anti-abortion laws may become another tool of coercion for abusers to use against their victims, said TuLynn Smylie, who oversees Sojourn, a domestic violence program run by the People Concern, one of Los Angeles County's largest social services agencies.

“He could use that to threaten, ‘If you leave me, I'll disclose you had an abortion or you want an abortion,’” Smylie said. “That could definitely become another element of control.”

This article originally appeared on USA TODAY: New abortion laws could see many women, doctors face criminal charges