By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
In the wake of last Friday’s Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, abortion is now prohibited, restricted or uncertain in half of U.S. states.
(For further details about the decision, see my earlier post, Dobbs v. Jackson Women’s Health Organization: U.S. Supreme Court Overturns Roe v. Wade by 5-4 Vote, Thereby Leaving it to States to Make Their Own Abortion Laws).
Before we can address the question posed in the headline, we must consider some legal issues first. Let’s call them the three Es: extraterritoriality, enforcement, and evidence.
The First E: Extraterritorial Reach of No-Choice States
It’ll soon become clear how aggressively prosecutors in no-choice states will be in targeting state residents who seek abortions in states where the procedure is still legal. The concept of extraterritorial jurisdiction has more often been considered to date in the context of international law, when a sovereign state – aka, a country – tries to exercise legal jurisdiction outside its normal boundaries to target actions that may be perfectly legal in the other sovereign state.
Many state legal officers have already signalled their reluctance to prosecute women who pursue abortions. To do so may certainly raise considerable political difficulties. But that doesn’t mean these prosecutors – or bounty hunters, more on those in a moment – won’t pursue other targets, with the aim of making it more difficult for residents of no-choice states to obtain abortions in states where the procedure is still legal. Targeting out-of-state third parties might thereby have a ‘chilling effect’ on provision of abortions even in states where the procedure remains perfectly legal.
Possible targets for prosecution could include:
- companies that provide funds for their employees to travel out-of-state to jurisdictions where abortion is still legal;
- companies that offer health plans that cover abortion;
- insurers that provide an abortion benefit for women;
- organizations that provide information to women about how to obtain an out-of-state surgical abortion;
- organizations that assist and support women in arranging travel to another state to arrange an abortion;
- those that drive the vehicles that transport women to undergo an abortion;
- organizations that provide information about how to procure mifepristone;
- pharmacies that supply mifepristone across state lines;
- clinics that provide surgical abortions in states where abortion is legal to women from no-choice states.
Legislators in some no-choice states are mulling legislation to restrict interstate travel. Arkansas state senator Jason Rapert told the Washington Post that the Arkansas legislature may soon address this issue in a special session (see Antiabortion lawmakers want to block patients from crossing state lines). Per WaPo:
“Many of us have supported legislation to stop human trafficking,” said Rapert, president of the National Association of Christian Lawmakers. “So why is there a pass on people trafficking women in order to make money off of aborting their babies?”
Attorney General Merrick Garland issued a statement Friday in which he suggested that the Department of Justice will challenge state bans on interstate travel, as well as restrictions on dissemination of information about the availability of abortion services in other states:
We recognize that traveling to obtain reproductive care may not be feasible in many circumstances. But under bedrock constitutional principles, women who reside in states that have banned access to comprehensive reproductive care must remain free to seek that care in states where it is legal. Moreover, under fundamental First Amendment principles, individuals must remain free to inform and counsel each other about the reproductive care that is available in other states.
Garland’s statement also addresses potential state bans of mifepristone :
“And we stand ready to work with other arms of the federal government that seek to use their lawful authorities to protect and preserve access to reproductive care. In particular, the FDA has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.
Yet as the WaPo notes:
[Garland’s statement] suggests that if a particular state did pass a law seeking to prevent women from traveling across state lines to receive an abortion, the Justice Department might file court papers opposing such a law. That strategy was ultimately unsuccessful in the Justice Department’s opposition to the Texas law limiting many abortions, but any new state law that involved interstate travel could raise additional legal questions for the courts.
Meanwhile, states where abortion remains legal, including California, Connecticut, Massachusetts, and New York, have passed state-level measures to shield abortion providers and patients. According to WaPo::
Connecticut passed a law in April that offers broad protections from antiabortion laws that try to reach into other states. The measure would shield people from out-of-state summonses or subpoenas issued in cases related to abortion procedures that are legal in Connecticut. And it would prevent Connecticut authorities from adhering to another state’s request to investigate or punish anyone involved in facilitating a legal abortion in Connecticut.
California governor Gavin Newsom on Friday signed similar legislation, according to a statement from his office:
The Governor signed AB 1666 by Assemblymember Rebecca Bauer-Kahan (D-Orinda), which seeks to protect those in California from civil liability for providing, aiding, or receiving abortion care in the state. The measure comes as lawmakers in Missouri advance a proposal to allow private citizens to sue Missouri residents who have an abortion out of state, as well as their providers and anyone who assists them in seeking an abortion. Texas has enacted a six-week ban on abortion with a private right of action enabling individuals to sue abortion providers and others. U.S. Senator Marco Rubio has introduced a federal bill to exclude employers from receiving tax breaks if they provide abortion access to their employees.
Massachusetts governor Charlie Barker on Friday issued an executive order along similar lines, according to The Hill, The right to travel to seek an abortion in a post-Dobbs world:
At the other end of the spectrum, citing the Massachusetts Constitution’s protection of reproductive rights, Gov. Charlie Baker on signed an executive order designed to shield Massachusetts-based health care providers from liability for providing services to abortion-seekers from out of state, prohibiting extradictions, and protecting records from disclosure to states with criminal penalties against abortion seekers, allies and service providers.
Now, major constitutional and other issues are raised by many of these state attempts to exert extraterritorial jurisdiction and limit access to, or dissemination of information about, activities that remain perfectly legal in pro-choice states. I’ll raise but not discuss those legal issues further here.
The Second E: Enforcement of No-Choice Laws
What I’ll next consider is how states such as Missouri expect to be able to enforce their state statutes against women who procure an abortion out of state and other third parties. Many no-choice states are consider model legislation to create private rights of action to enforce state abortion laws that may circumvent some of these constitutional protections, according to WaPo:
The National Association of Christian Lawmakers, an antiabortion organization led by Republican state legislators, has begun working with the authors of the Texas abortion ban to explore model legislation that would restrict people from crossing state lines for abortions, said Texas state representative Tom Oliverson (R), the charter chair of the group’s national legislative council.
“Just because you jump across a state line doesn’t mean your home state doesn’t have jurisdiction,” said Peter Breen, vice president and senior counsel for the Thomas More Society. “It’s not a free abortion card when you drive across the state line.”
In relying on private citizens to enforce civil litigation, rather than attempting to impose a state-enforced ban on receiving abortions across state lines, such a law is more difficult to challenge in court because abortion rights groups don’t have a clear person to sue.
Now, where did this model legislation come from? One thing that those who argue for reproductive freedom must appreciate is just what a long game no-choice advocates have played.
At this stage, political blame is largely beside the point. Still I blame Democrats for Dobbs even more than I blame Republicans. Hear me out. Yes, I know it was Republican-appointed judges who overturned Roe. But they were able to do so because although Democrats claim to revere abortion rights, they’ve been unwilling to expend any political capital whatsoever to safeguard access to abortions. Instead, they were content merely to fundraise off the back of fear that Roe was doomed if Democrats weren’t allowed to run the national candy store. Democrats have relied on courts alone to preserve abortion access, and made little provision to do so regardless who sits in those nine Supreme Court chairs. Even before Dobbs, many women nationwide lacked access to a local abortion facility. And when such a facility was available, women often had to run the gauntlet of blockades or protests in order to have their procedure. Doctors and staff suffered harassment, vandalism, and worse (see the Guttmacher Institute’s, Protecting Access to Clinics).
Whereas Republicans say they oppose abortion outright, and have followed through on that belief and promoted judges who oppose abortion rights. There’s a logic and consistency to the Republican position – even though I disagree vehemently with it. Republicans say they oppose abortion and they’ve done their level best to translate that opposition into policy. (For more on this issue, see my earlier post on Dobbs cited above.)
As to Biden’s pathetic, past-due announcement this morning that he now supports abandoning the filibuster in order to codify abortion rights, what took you so bloody long? The May leak of the Dobbs opinion provided Democrats with plenty of notice to formulate their response. Which they should have wheeled into place the moment the Dobbs decision was announced.
But they seemingly didn’t plan ahead and instead relied on their own special brand of magical thinking to ignore what was obviously coming. Only today, 6 days after Dobbs was announced, do we get Biden’s response. Per CNN, Biden calls for dropping filibuster rules to put abortion rights into law:
President Joe Biden said on Thursday that he would support making an exception to the filibuster – the 60-vote threshold in the Senate needed to pass most legislation – in order to codify abortion rights and the right to privacy through legislation passed by Congress.
Asked about what executive action he would use to strengthen abortion rights following the Supreme Court’s decision to overturn Roe v. Wade last week, Biden said, “The most important thing … we have to change – I believe we have to codify Roe v. Wade in the law.”
“And the way to do that is to make sure the Congress votes to do that. And if the filibuster gets in the way, it’s like voting rights – it should be (that) we provide an exception to this … requiring an exception to the filibuster for this action to deal with the Supreme Court decision,” he added.
By contrast, look at this account in the 19th,This anti-abortion group shapes laws nationwide. Your state may be next.,which discusses the long game played by the Americans United for Life (AUL), a group that:
“was founded to be the law firm of the pro-life movement — at one point, that was the tagline of the organization,” said Katie Glenn, who until recently was AUL’s government affairs counsel.
These lawyers are the creme de la creme of the no-choice side. Per The 19th:
Abortion law expert Mary Ziegler told The 19th that AUL is known as the home of the movement’s “legal elite.”
AUL was founded in 1971, two years before Roe was decided. At that time, the organization pursued a legal strategy and pushed a case that it hoped would provide the alternative to a Roe framework. The Supreme Court at that time chose to hear Roe instead. But even though AUL lost that battle, it didn’t surrender. Instead, according to The 19th:
Over the past 50 years, Americans United for Life has filed more than 200 legal briefs, and helped create at least 400 anti-abortion bills in more than 40 states by writing model legislation, consulting with state legislators and defending their own laws and other anti-abortion statutes in court.
Now, with the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturning its 1973 ruling in Roe v. Wade, the nonprofit law firm has seen its biggest victory.
Americans United for Life (AUL), didn’t write the Mississippi legislation that led to the Dobbs case. But the friend-of-the-court brief it filed in the case was one of 89 that it has filed in various anti-abortion cases, including every claim that made it to the Supreme Court.
AUL’s dual-front approach of writing and defending legislation has proved an effective one that could become even more impactful as GOP-controlled state legislatures move to enact restrictive abortion laws now that access will be determined by states, experts said.
I mention the work of AUL so readers understand just how carefully the ground work was laid for Dobbs. It wasn’t a mere matter of just changing the membership of the Supreme Court that produced last Friday’s result. Over to the 19th:
After the Supreme Court took and decided Roe instead, AUL’s founders “felt like this needs to be something that someone is doing full time,” Glenn said. Their thinking, she said, was that it can’t be a handful of lawyers doing this as their pro-bono work; there needs to be a dedicated response.”
This is the group behind the model legislation, which brings me to my second legal point: enforcement of state no-choice laws. Abortion opponents are well aware of the lack of resources any state can devote to policing abortion restrictions. So, the ALU and others devised the novel ‘bounty hunting’ strategy, which empowers third parties to sue to enforce the state’s abortion laws. Per the NYT, which discusses the Texas bounty statute; the basic concept applies to similar initiatives now being mulled by other no-choice states:
The new law in Texas effectively banning most abortions has ignited widespread controversy and debate, in part because of the mechanism it uses to enforce the restrictions: deputizing ordinary people to sue those involved in performing abortions and giving them a financial incentive to do so.
The law establishes a kind of bounty system. If these vigilante plaintiffs are successful, the law allows them to collect cash judgments of $10,000 — and their legal fees — from those they sue. If they lose, they do not have to pay the defendants’ legal costs.
The enforcement provision has generated backing from those seeking to limit abortion rights but confusion and criticism among supporters of abortion rights.
“When the law first came out and I was reading it, I thought I was missing something,” said Mary Ziegler, a professor at the Florida State University College of Law who specializes in the history of reproductive law. “It almost seemed like anyone could sue anyone — and that didn’t seem right. But it was. It really is that extraordinary.”
Now, the incentives the Texas law and the model legislation establish is based on the same concept behind class action suits, which incentivize attorneys to pursue certain cases. But it’s not altogether unusual in other contexts. IIRC, California has a consumer protection that allows for similar third party suits. These provisions that incentivize third parties to purse legal claims produce an in terrorem effect. A state may pass a statute but doesn’t have to expend resources on enforcement; it relies on third parties to produce results. that accord with the policy preferences of state legislators. What is unusual is that these state abortion statutes essentially incentivize stalking.
The Third E, Evidence: How Protected Are Your Medical Records and Digital Data When State Prosecutors or Bounty Hunters Come Knocking?
Which brings me to my main objective in writing this post: to answer the question spelled out in my headline.
Let’s consider those medical records first. Are they protected?
The answer, at least in terms of federal law, is not very. According to Stat, HIPAA won’t protect you if prosecutors want your reproductive health records:
If there’s a warrant, court order, or subpoena for the release of those medical records, then a clinic could be required to hand them over. And patients and providers may be made legally vulnerable by the enormous trail of health-related data we all generate through their devices every day.
As far as health records go, the most salient law is HIPAA — the Health Insurance Portability and Accountability Act. It’s possible that federal officials could try to tweak it, so records of reproductive care or abortion receive extra protection, but legal experts say that’s unlikely to stand up in the courts in a time when many judges tend to be unfriendly to executive action. Likewise, courts could block authorities from getting medical records they’ve requested on a case by case basis, but that isn’t a certainty, and could depend on the judge.
Stat drilled down into some details – and those are even more depressing:
“People think HIPAA protects a lot more health information than it actually does,” said Kayte Spector-Bagdady, a professor of bioethics and law at the University of Michigan.
She said the federal privacy rule contains exceptions that could allow prosecutors to compel businesses to relinquish information relevant to a criminal investigation — and the same is true for other kinds of legal action, too. In other words, in a state that has outlawed abortion, HIPAA wouldn’t necessarily keep records of the procedure from being used as evidence.
Now, defendants and their counsel do have some options. Per Stat:
There are ways to try to push back. A clinic could, for instance, say, “I want to see a warrant,” or “I want to see a subpoena,” explained Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.
There have been instances in which providers’ lawyers have blocked the release of such records even when authorities have obtained the necessary documentation to get their hands on them.
“We filed a motion to quash that subpoena. And we succeeded. And the district court held that the government was not entitled to obtain those records,” California attorney Beth Parker recalled, about two abortion-related federal cases she worked on in 2004. n one, she represented Planned Parenthood, and in another, a hospital.
Yet, Stat concludes that it’s most likely that the target would eventually have to turn over medical records.
“If the request was properly served and otherwise consistent with state law, it would be difficult to challenge, although an attorney could always try to request protections for that information after the fact,” said Dianne Bourque, of the law firm Mintz.
“These types of motions are available but it’s a defense mechanism,” wrote Isabelle Bibet-Kalinyak, a member of Brach Eichler’s health care law practice, in an email to STAT. Whether they’ll succeed could depend on the presiding judge, she went on. [Jerri-Lynn here: my emphasis]
The Department of Health and Human Services weighed in on June 29 in HHS Issues Guidance to Protect Patient Privacy in Wake of Supreme Court Decision on Roe weighed in and issued guidance on HIPAA privacy in the wake of Dobbs:
In general, the guidance does two things:
- addresses how federal law and regulations protect individuals’ private medical information (known as protected health information or PHI) relating to abortion and other sexual and reproductive health care – making it clear that providers are not required to disclose private medical information to third parties; and
- addresses the extent to which private medical information is protected on personal cell phones and tablets, and provides tips for protecting individuals’ privacy when using period trackers and other health information apps. [Jerri-Lynn here: I’ll discuss this point further below.]
How a judge might decide a case in which this federal HIPAA guidance and a no-choice state statute conflicts is uncertain, so I’m not altogether sure how much protection the guidance actually provides. Qverall, the trend has been for the Supreme Court and lower courts to be increasingly open to invalidating regulations, on the basis that the agency abused its discretion or didn’t cross all ts and dot all is during the rule making process. Instead, they require Congress to pass a statute in order to implement a major policy change.
So, the bottom line is that federal law won’t necessarily protect against disclosure of medical records, but note that the new state shield statutes mentioned above will also be in play. I’m not going to speculate here on how conflicts between conflicting state statutes will play out – although I recognize that is certainly another key issue. There’s no easy and obvious answer and these issues will undoubtedly be aggressively litigated on both sides. We’ll just have to wait and see how things shake out.
Let’s move onto data privacy. Loosely translated: what happens in Vegas no longer stays in Vegas. Again I turn to Stat:
“If I was giving my sister or best friend some advice, the first thing I would say is to be very careful about what data in general you’re generating,” Shachar said. “We think about medical records, but our phones collect an amazing amount of data. It’s not a good idea to send texts about your intent to seek an abortion. It’s not a good idea to use an online payment app to buy these services. You might want to leave your phone at home as opposed to taking it to the clinic. You may not even want to search for abortion providers on your phone or computer.”
Spector-Bagdady added that a large economy of health information also operates beyond the control of HIPAA, allowing the makers of period-tracking apps and other devices to share customer information with third parties in some instances.
“Some of these (businesses) have sold or shared information that is fully identified in the past with other companies such as Facebook,” she said. She noted a lawsuit the state of California recently pursued against Glow, a company that makes menstrual cycle tracking software, for sharing reproductive health information outside the app. But the violation in that case stemmed from more rigorous data protection rules in California that are not in place in other states.
In addition, neither HIPAA, nor state consumer protection rules, prohibit the disclosure of huge amounts of health information transmitted outside medical settings — in retail stores, social media sites, online shopping accounts, text messages, and elsewhere.
“The more online you are, the greater your exposure,” said Eric Perakslis, a health privacy and cybersecurity expert at Duke University. “You have your CVS account, your online patient portal, your email where appointment reminders are sent, your SMS stream on your phone. You can see how the threat compounds. It’s very difficult for people to think through that because they compartmentalize.”
Prospective patients aren’t the only ones who must now pay greater attention to safeguarding their data. The Washington Post ran an article yesterday about Planned Parenthood’s digital privacy lapses, You scheduled an abortion. Planned Parenthood’s website could tell Facebook.
The Supreme Court’s decision last week overturning the nationwide right to an abortion in the United States may have sent worried people flooding to Planned Parenthood’s website to learn about nearby clinics or schedule services.
But if they used the organization’s online scheduling tool, it appears Planned Parenthood could share people’s location — and, in some cases, even the method of abortion they selected — with big tech companies.
An investigation by Lockdown Privacy, the maker of an app that blocks online tracking, found that Planned Parenthood’s web scheduler can shareinformation with a variety of third parties, including Google, Facebook, TikTok and Hotjar, a tracking tool that says it helps companies understand how customers behave. These outside companies receive data including IP addresses, approximate Zip codes and service selections, which privacy experts worry could be valuable to state governments looking to prosecute abortions.
The details are ‘absolutely shocking’. Per WaPo:
In a video shared with The Washington Post, Lockdown founder Johnny Lin visited the Planned Parenthood website, opened the scheduling tool, input a Zip code and selected “surgical abortion” as a service. As he clicked around, a development tool let him see how data such as his IP address was being shared with Google, Facebook and many other third-party companies. Only the companies would know for sure how they use our data, but any data sitting on servers is vulnerable to potential cyberattacks or government subpoenas. In a criminal abortion case, an IP address would be pertinent because with the help of internet service providers, law enforcement can trace IP addresses back to individuals.
“This was absolutely shocking,” said Lin. “We’ve analyzed and reviewed the tracking behaviors of hundreds of apps and websites, and it’s rare to see this degree of carelessness with sensitive health data.”
And Planned Parenthood’s response was especially lame. Per WaPo:
Planned Parenthood spokeswoman Lauren Kokum said the organization uses trackers for its marketing efforts. She did not respond to questions about whether the organization plans to remove the marketing analytics from its scheduling page given new state-level abortion bans, or why trackers were running on the scheduling page in the first place.
“Marketing is a necessary part of Planned Parenthood’s work to reach people who are seeking sexual and reproductive health care, education, and information,” she said.
Seriously: marketing efforts!?! Someone at the Supreme Court provided everyone with two months’ notice that Roe was going to be overturned by leaking the Dobbs opinion. No-choice states have banned abortion within their borders and some are poised to restrict their residents from undergoing the procedure in states where it remains legal. And no one at Planned Parentood thought to turn off their trackers, which they have in place because marketing?
The WaPo article mentions exactly what types of data were shared with Google, Facebook, and TikTok. In the interest of keeping this post to a manageable length, I won’t include this information here, but direct interested readers to the WaPo link. But I’m not the only one to note that Planned Parenthood dropped the bill here. The rules of the game certainly changed on Friday and Planned Parenthood should have recognized that and dropped the trackers. Per WaPo:
As an organization that has long provided sensitive health-care services, Planned Parenthood should know better than to run third-party analytics on a scheduling page used by people in states with current or impending abortion bans, said Cooper Quintin, senior staff technologist at the privacy advocacy organization Electronic Frontier Foundation.
“It’s really irresponsible of Planned Parenthood to be creating more data about the visitors to the website and more trails of evidence about the people that are seeking their services,” he said. “Planned Parenthood needs to — right now, right this second — minimize the amount of data that they are sharing with any outside party and minimize the amount of data that they are keeping.”
Now, to be sure, the WaPo notes that leading Big Tech companies including Facebook, Google, Hotjar, and TikTok have yet to comment publicly on how they’ll respond to future requests for abortion data.
I’m not going out on a limb here when I tell you: Of course they’ll comply. Though they may hem and haw first. Axios notes in Tech companies may surrender abortion-related data:
The big picture: The companies aren’t directly answering questions about how they will respond to such inquiries now that the U.S. Supreme Court is letting states outlaw abortion.
Yes, but: The firms’ privacy policies and past conduct answer the question clearly: They may contest what they view as overly broad data requests, but generally they will cooperate with criminal investigations.
Axios spelled out further details:
Driving the news: The Big Tech platforms haven’t rushed to clarify how they will handle legal requests related to abortion prosecutions since the Dobbs decision on Friday. They were similarly silent when Axios posed the question after a draft ruling leaked in May.
But policies for the companies — including Apple, Google and Meta (Facebook) — clearly lay out how they handle such data requests.
And, Axios also makes clear that it’s not even necessary to get a warrant, court order, or subpoena and request the data directly from a Big Tech platform, since online data brokers offer online data for sale:
“Even though the government could get a court order or a subpoena or a warrant to access data, at the moment, there are so many different channels for it to do so without going through that legal process,” Caitlin Chin, a fellow at the Center for Strategic and International Studies, told Axios.
So at minimum, Planned Parenthood needs to up its game and stop collecting such data in the first instance. I’m sorry to have to pick on any single organization as I’m sure it’s not the only organization whose data protection is not yet ready for a post-Roe prime time. And I hope those who support abortion rights are ready to devote the same level of thought to safeguarding data privacy as the AUL does to limiting choice,
And not just Planned Parenthood. It’s past high time for Big Tech to reconsider its data collection policies. Axios concurs:
Our thought bubble: The post-Roe world will drive every tech company to review the volume of data they are collecting and ask whether they need it, how it could be harmful, and how long they want to hold it.
Note that in the guidance discussed above, HHS essentially throws up its hands and places the onus ‘for protecting individuals’ privacy when using period trackers and other health information apps’ on individuals, by providing tips on how to do so, e.g., turning off location tracking on Apple and Android devices, for example.
This guidance explains that, in most cases, the HIPAA Privacy, Security, and Breach Notification Rules do not protect the privacy or security of individuals’ health information when they access or store the information on personal cell phones or tablets. This guidance also provides tips about steps an individual can take to decrease how their cell phone or tablet collects and shares their health and other personal information without the individual’s knowledge. This guidance:
- Explains how to turn off the location services on Apple and Android devices.
- Identifies best practices for selecting apps, browsers, and search engines that are recognized as supporting increased privacy and security.
One potential silver lining is that perhaps our political leaders will finally get serious about enacting provisions to protect our data. Dare we hope that Dobbs provides a spur to make that happen. A starting point for that effort might be to investigate just what mobile phone data Apple and Google are allowing to be collected and sold, as I discussed in my Dobbs post cited above:
On Friday – before the Dobbs decision was announced – three senators, Ron Wyden, Elizabeth Warren, and Cory Booker, and House member Sara Jacobs, wrote to Federal Trade Commission chair Lina Khan, asking that she investigate Apple and Google for allowing the collection and sale of the personal data of mobile users:
We write to request that the Federal Trade Commission (FTC) investigate Apple and Google for engaging in unfair and deceptive practices by enabling the collection and sale of hundreds of millions of mobile phone users’ personal data. These two companies knowingly facilitated these harmful practices by building advertising-specific tracking IDs into their mobile operating systems.
Apple and Google both designed their mobile operating systems, iOS and Android, to include unique tracking identifiers which they have specifically marketed for advertising purposes. These identifiers have fueled the unregulated data broker market by creating a single piece of information linked to a device that data brokers and their customers can use to link to other data about consumers. This data is bought or acquired from app developers and online advertisers, and can include consumers’ movements and web browsing activity.
I was going to discuss what such data protections might look like. But this piece is already rather long. So I think I’ll stop here. Except to say that it’s crucial that privacy advocates work to get the maximum protection for data – and not in some way allow restrictions to be limited to the abortion context only.
The Dobbs majority has upended how abortion is regulated in the United States. But that doesn’t mean abortion-related litigation will cease in during the upcoming weeks and months. The opposite will be the case: I expect a huge upsurge in lawsuits, as many conflicting federal and state laws and regulations will now come into play, broadly clustering around issues of extraterritoriality, enforcement, and evidence. What had previously been a well-settled albeit imperfect framework will now degenerate into what I fear will be an incoherent, deeply contested mess.
Brought to us, most immediately, by a self-described ‘conservative’ majority of Supreme Court justices.
Permit me to close, finally, by answering in a couple of words, the question posed in my headline:
What is truly laughable about discussing privacy of medical records is that there is no such thing. The advent of the electronic medical records assured us of that. HIPPA is just another Orwellian title that promises medical privacy but instead delivers the “portability” of your records to whoever may want to see them at a blink of an eye.
Not to mention where they are stored.
Many if not most of the medical records in this country are now maintained on amazon and google servers and if you are concerned with privacy, you must include a chain of employees in these middlemen server areas. These dozens/hundreds of employees have total access to your data 24/7. I know this because of things that have happened in places I have worked.
The hospital IT people think they have a lid on it in the hospital, but they have absolutely zero control over what is being done in these big server farms and web services.
This is all so very concerning to me. For example, if you go to one of the many former Catholic hospitals in the country that are now part of the Ascension group, you can see from this article that not only Ascension but also GOOGLE has access to all of your records. Many of these hospitals use the EPIC system which I am told is just an open sieve with Google and Amazon.
When I read articles like this, it surprises me how naive people are in thinking that any of their medical records are safe in the first place.
It is also incumbent upon one to realize that this issue has already come up in a major way in American history. During the Nixon administration, Daniel Ellsberg’s psychiatrist office was broken into in a search for Ellsberg’s records to discredit him. The break-in was unsuccessful but because it was a physical address it was known and eventually made it to the press. In today’s world, Mr. Nixon would have just had to press a couple of buttons on the computer.
Indeed! From HHS Office for Civil Rights:
HHS Issues Guidance to Protect Patient Privacy in Wake of Supreme Court Decision on Roe
Guidance includes information about what’s protected – and what’s not – when using period trackers and other health information apps on smartphones.
June 29, 2022
On the heels of the Supreme Court ruling in Dobbs vs. Jackson Women’s Health Organization, where the right to safe and legal abortion was taken away, President Biden and U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra called on HHS agencies to take action to protect access to sexual and reproductive health care, including abortion, pregnancy complications, and other related care. Today, in direct response, the HHS Office for Civil Rights (OCR) issued new guidance to help protect patients seeking reproductive health care, as well as their providers.
In general, the guidance does two things:
addresses how federal law and regulations protect individuals’ private medical information (known as protected health information or PHI) relating to abortion and other sexual and reproductive health care – making it clear that providers are not required to disclose private medical information to third parties; and
addresses the extent to which private medical information is protected on personal cell phones and tablets, and provides tips for protecting individuals’ privacy when using period trackers and other health information apps.
According to recent reports, many patients are concerned that period trackers and other health information apps on smartphones may threaten their right to privacy by disclosing geolocation data which may be misused by those seeking to deny care.
“How you access health care should not make you a target for discrimination. HHS stands with patients and providers in protecting HIPAA privacy rights and reproductive health care information,” said HHS Secretary Xavier Becerra. “Anyone who believes their privacy rights have been violated can file a complaint with OCR as we are making this an enforcement priority. Today’s action is part of my commitment to President Biden to protect access to health care, including abortion care and other forms of sexual and reproductive health care.”
This guidance addresses the circumstances under which the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule permits disclosure of PHI without an individual’s authorization. It explains that disclosures for purposes not related to health care, such as disclosures to law enforcement officials, are permitted only in narrow circumstances tailored to protect the individual’s privacy and support their access to health care, including abortion care. Specifically, the guidance:
Reminds HIPAA covered entities and business associates that they can use and disclose PHI, without an individual’s signed authorization, only as expressly permitted or required by the Privacy Rule.
Explains the Privacy Rule’s restrictions on disclosures of PHI when required by law, for law enforcement purposes, and to avert a serious threat to health or safety.
OCR is also issuing information for individuals about protecting the privacy and security of their health information when using their personal cell phone or tablet. This guidance explains that, in most cases, the HIPAA Privacy, Security, and Breach Notification Rules do not protect the privacy or security of individuals’ health information when they access or store the information on personal cell phones or tablets. This guidance also provides tips about steps an individual can take to decrease how their cell phone or tablet collects and shares their health and other personal information without the individual’s knowledge. This guidance:
Explains how to turn off the location services on Apple and Android devices.
Identifies best practices for selecting apps, browsers, and search engines that are recognized as support in increased privacy and security.
The guidance on the HIPAA Privacy Rule and Disclosures of Information Relating to Reproductive Health Care may be found at https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/phi-reproductive-health/index.html.
The guidance on Protecting the Privacy and Security of Your Health Information When Using Your Personal Cell Phone or Tablet may be found at https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/cell-phone-hipaa/index.html.
If you believe that a HIPAA-covered entity or its business associate violated your (or someone else’s) health information privacy rights or committed another violation of the Privacy, Security, or Breach Notification Rules, you may file a complaint at https://www.hhs.gov/hipaa/filing-a-complaint/index.html.
For more information on how HHS is working to protect reproductive rights, visit https://reproductiverights.gov.
Thanks for raising this. I have amended the text to include a brief discussion of this guidance, but I think it’ll prove far from definitive in addressing some of the conflicts that will inevitably arise. I understand that in today’s decision in West Virginia v. EPA – which I have yet to read so I rely here on the NYT, The Ruling’s Implications May Extend Beyond the Climate Fight:
If the Court struck down a regulation, imagine what it might do in a case where the HHS ‘guidance’ and a state statute conflict.
That sounds like the Law and Economics legal movement which began mostly with the Chicago school of economics, Milton Friedman’s turf. Neoliberalism in law.
Yes, including Judge Richard Posner, who occasionally can be sensible. He taught at the U of Chicago law school and then sat on the 7th Circuit for a very long time.
His son, Eric, was a member of my law school class. He was very tall and had very long arms. He would extend his very long right arm and once recognized would begin each and every comment by saying, “The efficient thing to do would be…” I kid you not. He’s had quite a successful career as a law professor in his own right.
I need to read the West VA v. EPA opinion and think about it a bit. I’ll be posting about it for Tuesday.
To cut to the chase [at my age, it’s essential :)] we write of the US Oligarchy:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.
Aid and Comfort maybe, but are the hooligans on January 6th the enemy? A bunch of pinheads more like. It’d be hard to make out a crime with these allegations and harder to convict. The Atlantic article seems like it’s part of the dog and pony show for 2024.
$100 Million Dollar Landlord, Nancy Pelosi COULD HAVE brought up the Emoluments Clause to impeach Trump. But THAT might have led to putting Nancy in the slam for Insider Trading
It’s better to use Trump’s dumbass phone call to Ukraine which nobody really cared about at the time. So as Tommy D’Allesandro, Mayor of Baltimore taught young Nancy early: IT’S ALWAYS BEST TO BAFFLE ‘EM WITH BULL****!
My Medical records were recently hacked, along with those of many thousands of others.
It was an EPIC event…
Not much damage to me because I am old and broke, and no surprise at all.
Electronic Medical Records are a very profitable (For the few) disaster and I expect they will be the standard until things come apart.
This week’s Court decisions make it clear that the USA has abandoned any pretence of Civilization, it’s going to be an interesting Summer and Fall
So given that half of all first trimester abortions are performed with pills does that make individual women who abort at home “abortion providers”? A more elaborate explanation of the Texas law would be helpful for those of us who aren’t following this all that closely. Have people now sued and collected their 10K? And the law was passed before the new SC decision and therefore federal rights still applied at the time to supersede Texas regulations.
While abortion opponents are clearly trying to intimidate women into having their babies the article above says that doesn’t include prosecuting them except in a few cases.
And a recent NYT story said that the pills do make a difference and a different landscape for the abortion debate than in the 1970s. Seems like that’s something that should be explored further. As for Biden, if they drop the filibuster and pass a federal law then what are the Dems going to run on this Fall?
The abortion providers are presumably the doctors who wrote the Rx. MIT Technology Review contends otherwise, but we’ll see:
One simple finesse is to have doctors write Rxs in states where abortion is legal.
The Supreme Court allowed the TX law SB8 that included bounties to remain in effect after it was passed in 2021 (first link below).
It’s difficult to keep up with provisions state-by-state. States are passing new laws; some had trigger laws already on the books now going into effect; and lawsuits are temporarily blocking some. The second link discusses the status of SB8 and the pending trigger law in TX.
Another point is that anti-abortion states may pass illegal or unconstitutional measures as a form of intimidation. It will take time for those to be overturned, if they are indeed overturned, but in the meantime they can be used to prosecute people and set an example.
There are consequences for people that are arrested and/or charged regardless of legality of their arrest, starting with financial, mental health, etc. So many people will be intimidated into compliance as they don’t have the resources to fight the state on this.
I made a similar point in my post earlier this week. Thanks for highlighting the financial and mental health consequences of these legal actions. And while the laws might eventually be overturned, in the meantime people will be prosecuted and might end up in jail, and in the case of travel bans, women may be trapped in a no-choice state until after their pregnancies come to term
And how about the miscarriages?
One cause is stress and wondering whether you are being stalked is effing stressful
How many Women going to be criminally prosecuted when they have in fact had a miscarriage?
Vigilantism is a REALLY bad idea in this context, it’s an invitation to a lot of crazies, when you add greed to insanity things get ugly fast.
My suspicion is that before too long the no-choice states will come to resemble the East Bloc of old, with police and bounty hunters waiting at the borders, at airports, bus terminals (where there will be departure screening) and the like. After a bit, I wonder if actual walls (in addition to the digital walls) will go up, rendering the analogy to the communist states of the East Bloc complete. Further, I expect that many of the people from non-choice states who do make it to choice states will become political refugees b/c they can’t go back to the no-choice states. Finally, imagine the potential travel disruptions as people who leave a no-choice state can’t go into (fly-over?) another no-choice state as that other no-choice state will enforce subpoenas, warrants, etc issued by the original no-choice state from which the women and people who help them originally fled.
I agree with the assertion that there will be more litigation rather than less, and that the right to travel will be one of the big issues. What was it that B.Franklin said about keeping a republic?
Horrifying. Thanks for the long and painful read.
“Smile, things could be worse. So I smiled, and sure enough. Things got worse…”
My prediction: The recent Supreme Court decision will not lead to a surge in the American birth rate. If anything, it will lead to a surge in business for surgeons who perform tubal ligations and vasectomies.
Half-joking: those procedures will be outlawed or deemed illegal soon too.
I suspect that, no matter how successful some of these no-choice states may be in restricting out-of-state abortions for their residents, it will never be enough. The logic of their beliefs will push them towards a nation-wide ban, and if that happens, things will get very interesting.
Rich and powerful women from the Illegal Abortion states will not be prosecuted or bounty hunted if they go to Legal Abortion states for abortions. That means they and their significant others and their social class in general will feel zero pain from the pain they have chosen to sadistically inflict on the non-rich and non-powerful women of the Illegal Abortion states.
The only way to torture the leadership elites of the Illegal Abortion states into legalizing abortion in their states is to force them to endure every last bit of the cruelty they laughingly and sadistically impose on the non-leadership non-elites of their Illegal Abortion states. And the only way to do that is for the Legal Abortion states to absolutely and utterly forbid the performance of so much as one single abortion on so much as one single non-resident of a Legal Abortion state.
The residents of the Illegal Abortion states must be made to feel so much utter and absolute social pain and destabilization and even social-disintegration if necessary that they find themselves tortured into legalizing abortion in their states.
Part of that torture, IF the Legal Abortion states have the long term strategic vision and intelligence to deny abortion to abortion seekers from the Illegal Abortion states would be the encouragement of all people from the Illegal Abortion states who support Legal Abortion to move from the Illegal Abortion states to the Legal Abortion states. The purpose would be to de-populate and brain-drain the Illegal Abortion states to the point where their leadership elites are forced to face the fact of looming social disintegration and economic non-viability of their own Illegal Abortion states until and unless they legalize abortion within their Illegal Abortion states.
If the Illegal Abortion states are not themselves either tortured into legalizing abortion or otherwise stripped of their power, wealth and population to the point where they are no longer able to pollute National Policy and National Governance, they will impose their vision of Christian Sharia Law upon all Fifty States.
But I am just a humble layman here. No one has to believe me about that. If the Legal Abortion states permit Abortion Tourism from the Illegal Abortion states so much as even one single time for one single Abortion Tourist, then my fellow readers can just watch the trend of events over the next few decades and see if I am right or wrong about my prediction in the paragraph just above this one.
And no . . . “Medical records privacy” is a deceitful contradiction in terms.
I don’t know how rich and powerful a woman from an illegal abortion state would have to be to “feel zero pain” and be able to find timely, safe care for abortions, pregnancy complications, and complications of illegal abortions their daughters had attempted without telling them.
In any case. pain isn’t experienced by a class, it’s experienced by people. A solution that punishes any woman who can manage to find funds and resources to travel to a legal abortion state just compounds the cruelty.
Meanwhile, Planned Parenthood has apparently given up “fighting for” in Montana, so we’ll see a real-world example of this experiment on women’s lives.
“Planned Parenthood of Montana will no longer schedule patients for medication abortions if they are from states that have banned abortions, citing the rapidly changing legal landscape, per an internal email from PPMT president and CEO Martha Fuller.”
Islam isn’t driving the legal imposition of right wing misogyny and authoritarianism in the US. Using sharia as an adjective to stand for religious authoritarianism isn’t, in my opinion, instructive or productive of solidarity.
Solidarity? Solidarity with whom? The Shariah Law Christian Fascists? That seems like a vain pursuit in any case. ” Shariah Law Christian ” makes the point I want to make. At this stage in the unfolding civil cold war, punctiliosity of academic intellectual precision of analysis is irrelevant.
Yes, it compounds the individual cruelty. In war, there are civilian casualties and collateral damage.
And compounding the cruelty withIN the Christian Sharia Law states is the entire point. The point is to keep the cruelty within the borders of the states which maliciously and deliberately cause the cruelty to begin with, and to raise the pressure within these states so high that they explode like Tsarnaev pressure cooker time bombs. Or crush and destroy their own Christian Sharia Law movements in order to legalize abortion within their own states. Because the alternative is to permit them to extend their Christian Shariah Law Occupation Regime to all Fifty States.
Hug-a-nazi make-a-liberal does not work. THEY chose this war. THEY chose to MAKE it a war. THEY have given you this rigid binary choice: Crushing Victory over them or Abject Submission to their will.
Solidarity with pro-choice Muslims.
Private hospital rooms for the rich, wire coat hangers for the poor.
Force those private hospital rooms for the Illegal Abortion state rich to be in their own Illegal Abortion states, where there is a hope of embittered non-rich people finding them, doxing them, stalking and harrassing them in public, ruining their lives in their Illegal Abortion states until they are tortured and terrorised into re-Legalising abortion in the Illegal Abortion states.
If those rich abortion seekers are permitted to waltz and flounce into the Legal Abortion states for their hypocritical abortions in their private hospital rooms, they will have zero incentive to re-legalise abortion ( or legalise it for the first time) in their own Illegal Abortion states.
The side which understands this is a war to the death will have the advantage over the side which refuses to believe that this is even a war at all. If the Legal Abortion states wish to be all hug-a-nazi-make-a-liberal and kumbaya about permitting interlopers from the Illegal Abortion states into the Legal Abortion states to get abortions, the Legal Abortion states will all be placed under Christian Sharia Law rule over the next few decades.
People who don’t wish to believe that are free to not believe that. Time will tell if I am right or wrong.
We won’t see any changes in medical record privacy requirements until our elite political class has their embarassing health information splashed across the media. There may also be some blowback on rich backers, preachers and judges as well as politicians in restricted states and states with bounties. Abortions, STDs, rehab, etc will be fair game for hackers and leakers, especially if friends and family get caught in this.
And I think it may be a shock to so many how hard it can be to track down people who are really really good at this. There may be some script kiddies who get caught, but others…
Master hackers can teach hackers how to become Master hackers. And hackers can teach script kiddies how to become hackers.
There will eventually be a movement of hundreds of thousands of hackers and Master hackers devoted to destroying the lives of the Sharia Law Christianazi Satanofascists who conspire to destroy the lives of others.
And if that doesn’t work, they will move on to destroying every business and government function within the Sharia Law states if it is on a computer. They will want their freedom back from the Christian Sharia Law Gilead Republic Occupation Regime, and they will burn everything down in order to get it.
So, we’re at burner phones and homing pigeons, right?
Yup, that about nails it. I guess we could also include signal flags. I think they’re also untrackable.
Thank God I use an alias here !
So what about women, who aren’t pregnant but are of child-bearing ages – say 10 to 60), what protections are included in the law to protect their privacy and safety from bounty hunters or just people who might mean them harm?
Does the law provide legal recourse to women who aren’t pregnant but get targeted? Can they get a bounty on the bounty hunters and/or the organizations they represent plus legal fees?
Can the bounty hunter file a claim against multiple entities such as a doctor, a boyfriend, a car rental business, insurance company, employer, etc. Is it a $10,000 all in cap or $10,000 per. Can more than one bounty hunter claim the reward?
‘Legislators in some no-choice states are mulling legislation to to restrict interstate travel.’
Isn’t that a pretty fundamental right in the US? That you can travel through the whole country without permits or restrictions? That might be a bridge too far for them to try to argue. Otherwise they will have to set up border inspection posts around their State borders along with interstate travel permits.
Some future black mirror episodes:
-Gangs of pro-choice rapists target wives and daughters of prominent no-choice leaders.
-Armed militias at no-state state borders checking for pregnant residents leaving their no-choice state (using medical information obtained from data brokers) and asking where they’re going.
I understand why many people are up-in-arms about the Supreme Court ruling, but I think the far-fetched “What ifs” are a bit much.
Let’s assume for the moment that we have no privacy in our medical records. And let’s limit the discussion to people over the age of 18. Can anyone give me ONE example of an enforeable US State law which forbids an adult from crossing a state line to do something which is legal in that other state? Or a law that punishes such persons when they return? Or a law that forbids the distibution of speech which is protected by the First Amendment across state lines?
I know far-fetched lawsuits get filed, far-fetched local laws get enacted and idiological judges issue TROs to slow things down. But just give me ONE example.
I don’t think you recognize that legal lines are moving very quickly. Whether there is Constitutional protection for private individuals to cross state lines it turns out, shockingly, is not a settled issue.
And in case you missed it, all sorts of speech leads to prosecution, such as statements that show intent to commit a crime in connection with action that could be deemed criminal.
I hope you’re wrong and that this isn’t a legal line that’s moving quickly. I’m checking it out with a well-respected DC lawyer I trust. I’ll post his response.
Marijuana. Legal to buy in one state regardless of residency. Illegal to bring back across state lines.
Federal law still trumps state law.
Civil forfeiture. Not exactly what you mean but what’s happening now is not how the laws were sold during the drug wars of the 80s to stop drug kingpins. I suspect most people don’t say a word. The little we do hear about it leads me to believe that most don’t recover the property which was seized.
I think Assange, Covid, Ukraine, corporate NDAs are all examples of how easily speech may be stifled. Whistleblowers doing jail time. We’ve also been watching noble lies and scapegoating happening in real time. The media keeps pounding into our heads that there is no common ground to be found between the sides. Which I think is a lie. Nevertheless, why should anyone trust politicians, corporations, internet influencers, celebrities to not stifle speech in this case when they’re already doing it with other issues?
Our soopreem Catholic Sharia Law Court will soon take care of that and any other legal problems and loose legal ends which slow down or prevent the imposition of the Gilead Republic over all Fifty States.