A post-Roe United States will be defined not only by abortion access, but by the data collected on pregnant women. Period tracking apps are likely to become sources of data mining for prosecutors who hope to establish whether a woman is poised to seek an abortion. However, electronic data experts think period tracking apps don’t pose the most danger for women seeking abortions; it’s believed that text messages, browser histories, and emails are more commonly used in criminal investigations. Therefore, it’s very important for users to be aware of their phone’s privacy settings, especially while using search engines like Google. One of the most important things users can do is aim to protect their location data, especially in terms of interstate travel.
Currently, interstate travel for abortion access remains legal in every state. In a concurring opinion on Dobbs v. Jackson Women’s Health Organization, Supreme Court Justice Kavanaugh — who voted to overturn Roe — argued there would remain a constitutional right to interstate travel to protect women seeking abortions in states where the medical procedure is legal. Furthermore, many companies, including the likes of Disney and JP Morgan Chase, have announced they would assist in travel funds for employees seeking out-of-state abortions. Interstate travel is expected to be a reality for many women seeking abortions in the Upper Midwest and South. Most notably, women along the Gulf Coast in cities like Houston and McAllen, Texas are now expected to travel over 400 miles to seek an abortion from the nearest clinic two or three states away. There are also pockets of inacess in the Mountain West and parts of Alaska with large Indigenous populations.
Despite the current status of legal interstate travel, some legal scholars caution that prosecutors in states with abortion bans could attempt to file charges against those helping women seek abortions. This would include anyone aiding in the travel efforts to the abortion. There are two rights in question regarding abortion access in a post-Roe world aside from the right to abortion. It is largely unclear what states are seeking to do in terms of legal action towards interstate travel, although Texas and Oklahoma provide a few indications as to how extensive these charges may be. Both states now have laws that allow private citizens to sue abortion providers or anyone who helps a woman obtain an abortion for up to $10,000. Idaho passed a similar law in March, although it is currently blocked by the state’s Supreme Court. As previously stated, the status of interstate travel is further tested by whether location data of those seeking abortions will be used against them. Despite this, interstate travel remains a right in the Constitution. These rights will therefore open up new areas of conflict between state and federal law.
In concern with the right to privacy with location data, the Supreme Court decided in Carpenter v. United States via a 5-4 decision that the Fourth Amendment protects not only property interests, but also reasonable expectations of privacy. This interpretation means the government generally will need a warrant to access cell-site location information. Despite this ruling, the Supreme Court also upheld the third-party doctrine, which holds that the phone numbers a person dialed on their phone could be obtained without a warrant, just not the audio of the conversation. The doctrine also covers data such as telephone numbers dialed, email addresses of those emailed, and websites visited. This doctrine will likely be a key component to laws similar to those passed in Oklahoma and Texas, where information on websites visited will be vital in establishing a case against those seeking or aiding in abortions.
The rights to privacy and interstate travel will be put to the test in a post-Roe United States as states clarify and attempt to extend their legal limits on abortion access/prosecution. While these rights will be fundamental in establishing the legal landscape of the future of abortion, this review of rights does not begin to touch on access to abortion pills via the internet, which will remain another fronteir in terms of location data, geographic limitations, and more. The Locus Charter — a framework of 10 principles to improve standards of practice when using location data — developed by EthicalGEO and the Benchmark Initiative, aims to get other organizations and companies using any form of spatial data to recognize the importance of privacy and commit to the responsible and ethical use of such data.