What Privacy in the United States Could Look Like without Roe v. Wade

According to a leaked draft opinion of Dobbs v. Jackson Women’s Health Organization, the Supreme Court could soon uphold the constitutionality of Mississippi’s Gestational Age Act, a state law which generally bans abortions after 15 weeks of conception. In doing so, it would overturn an almost 50-year precedent set by the Supreme Court’s decisions in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), which affirmed that individuals maintain certain privacy rights from the government in family planning.

The Dobbs decision would come at a time when the general global trend over the past few decades has been to expand—not limit—access to family planning options. But the leaked opinion could impact more than just an individual right to abortion; it could also lead to disputes over the constitutional interpretation of privacy. President Joe Biden has acknowledged this challenge, stating in response to the leaked opinion: “every other [Supreme Court] decision relating to the notion of privacy is thrown into question.” A reversal in reproductive health policy could implicate commercial businesses as well, especially considering the absence of a comprehensive federal data privacy law in the United States. Because law enforcement officers often access data from the private sector, the massive scope and scale of data collection by internet platforms and consumer devices introduce unique questions over the appropriate limitations of government surveillance to enforce state laws, including any current or upcoming abortion restrictions.

Q1: How does the original Roe v. Wade decision in 1973 relate to a constitutional right to privacy?

A1: Although the Fourteenth Amendment does not contain the word “privacy” itself, nor does it appear in the rest of the Constitution, U.S. courts have long acknowledged an individual’s right to privacy in home and family life. The Supreme Court first recognized a constitutional right to privacy in Griswold v. Connecticut (1965), a landmark decision that centered around the freedom of individuals to use contraception without interference from the government. The Griswold decision acknowledged that the Bill of Rights contained “zones of privacy” from the government within the First, Third, Fourth, and Fifth Amendments. Combined with the Ninth Amendment, which acknowledges the existence of some constitutional rights that are not explicitly mentioned in the Bill of Rights, and the Fourteenth Amendment, which states that the government cannot infringe upon “life, liberty, or property” without the “due process of law,” the Supreme Court declared that there is a constitutional right to privacy within the “penumbra,” or shadow, of these protections. Griswold set a precedent for numerous privacy-related cases over the past six decades, including Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

In Roe v. Wade (1973), the Supreme Court held that the Fourteenth Amendment’s Due Process Clause “protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy,” and that “though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life.” Striking this balance of interests, Roe v. Wade effectively stopped the enforcement of many state laws that banned abortion before 24 weeks. The Supreme Court later reaffirmed in Planned Parenthood v. Casey that “the fundamental right of privacy protects citizens against governmental intrusion in such intimate family matters” and that a state law would violate the Due Process Clause if it creates an “undue burden” on a pregnant person’s right to choose.

Q2: Considering the draft decision, why is it important to also examine data privacy regulations for private businesses?

A2: Once Roe v. Wade and Planned Parenthood v. Casey are overturned, it is possible that U.S. private businesses could become either voluntary or involuntary participants in the enforcement of state anti-abortion laws. In particular, numerous popular consumer devices and mobile apps collect an enormous amount of sensitive personal information from users—including precise geolocation, browsing or internet activity, search history, private communications, social media posts, photos, videos, financial transactions, and more—which would allow developers, data aggregators, advertisers, and other third parties to infer pregnancy status.

In many cases, this information may be used for targeted advertisements for pregnancy or baby-related products. But more consequentially, it could also facilitate a digital paper trail for law enforcement to compile evidence against individuals who choose to have an abortion. Law enforcement agencies frequently access data held by private companies through a variety of mechanisms, which include legal requests (e.g., warrants, subpoenas, court orders) or voluntary sales, dramatically expanding the government’s scope and resources to conduct surveillance. For example, from January to June 2020 alone, Apple, Google, Meta, and Microsoft received over 112,000 legal requests to access data from federal, state, and local law enforcement agencies, and fulfilled approximately 85 percent of those requests. In recent years, several federal law enforcement agencies including the U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) also purchased smartphone app geolocation data from data brokers like Venntel and Babel Street, without a warrant or court order, which they used to track unlawful activity leading to arrests or deportations.

If abortion is outlawed in some states, law enforcement officers can use these same tools to track pregnant people and abortion facilities. A 2019 Kaiser Family Foundation survey found that nearly a third of female-identifying respondents used a smartphone app to track their menstrual cycles, some of which collect and share highly sensitive information about period cycles, sexual activity, and medical conditions. In addition, data aggregators can compile and sell precise geolocation information related to people who visit reproductive health clinics; for example, SafeGraph recently offered location information of individuals who visit Planned Parenthood and other family planning facilities for approximately $160, including the frequency and length of their visits and other movement activity. Even if data brokers take steps to anonymize this data, it can potentially link back to specific individuals when combined with other information. In addition, de-identified location information can still help pinpoint abortion facilities with a high amount of interstate traffic—which may be useful to states, such as Missouri, that might implement legal penalties for those who facilitate out-of-state abortions.

Q3: What options might Congress consider in the aftermath of Dobbs v. Jackson Women’s Health Organization?

A3: In the absence of Roe v. Wade, Congress could theoretically pass a new statute to either permit, limit, or abolish abortion services nationwide—but all these options would be difficult to achieve in the current political environment. On May 11, the Senate voted 51–49 against the Women’s Health Protection Act—a measure that aimed to legalize abortion services nationwide, as well as supersede any state bills or laws that would require “medically unnecessary” in-person services, waiting periods, tests, and other procedures that could delay or prevent abortion services. The vote fell along party lines, with Senator Joe Manchin (D-WV) joining all 50 Republican senators against, and ultimately failed to pick up the 60 votes necessary to overcome a Senate filibuster. And while President Biden has supported codifying Roe into law, he has also stated that he would not abolish the filibuster to do so.

Congress could alternatively establish new guardrails on the enforcement of state laws, including abortion bans, by passing a federal commercial privacy law that regulates how private businesses and nonprofits collect and share personal information. Commercial privacy legislation could indirectly reduce the amount of extraneous surveillance data that government officials might access through the private sector—it is not a substitute for a federal statute that codifies abortion rights nationwide, but it is more politically achievable. Representative Suzan DelBene (D-WA) recently advocated for such a bill, stating: “Democrats must swiftly pass a strong national consumer data privacy standard that protects our personal information including pregnancy status and other health data.”

There is some bipartisan consensus on the basics of federal privacy legislation: two leading bills in the U.S. Senate Committee on Commerce, the Democrat-sponsored Consumer Online Privacy Rights Act and Republican-sponsored SAFE DATA Act, both propose to afford U.S. individuals the rights to access, delete, correct, and export personal information that private businesses hold, which would grant greater control over sensitive health and location information. Both also introduce the principle of data minimization, which would generally limit websites and apps to only process and share personal information to the extent necessary to provide authorized services. In turn, these individual rights and boundaries on data collection, processing, and sharing could reduce the scale of user information that data brokers and law enforcement agencies can access through either voluntary sales or legal requests.

Q4: Outside of family planning services, could the decision in Dobbs v. Jackson Women’s Health Organization more broadly affect privacy or civil rights for individuals in the United States?

A4: The draft majority opinion in Dobbs v. Jackson Women’s Health Organization explicitly rejects the notion that abortion constitutes a protected “liberty” under the Fourteenth Amendment’s Due Process Clause. It states that the Due Process Clause only protects rights that are “deeply rooted in this Nation’s history” and “implicit in the concept of ordered liberty.”

This language has raised concerns. Such an interpretation could threaten the viability of other landmark Supreme Court decisions that—based on similar concepts of liberty and equal protection under the Fourteenth Amendment—established rights that were not available during the American Revolution. These include Griswold v. Connecticut (1965) that guaranteed a right to use contraceptives, Loving v. Virginia (1968) that invalidated state bans on interracial marriage, Lawrence v. Texas (2003) that banned state “sodomy” laws, and Obergefell v. Hodges (2015) that recognized a constitutional right to same-sex marriage. The leaked opinion attempts to mitigate such concerns by drawing a distinction between abortion and other fundamental rights, stating that: “We emphasize that our decision concerns the constitutional right to abortion and no other right,” and that abortion is different because it “destroys what [Roe and Casey] call ‘potential life’ and what the law [in Texas] regards as the life of an ‘unborn human being.’”

These assurances are not binding, however, and leave the door open for further erosion of civil rights. It is difficult to state that all rights under the Due Process Clause must be “deeply rooted” in U.S. history without also subjecting other cases to legal risk. Justices Samuel Alito and Clarence Thomas criticized Obergefell v. Hodges only 20 months ago, writing that: “the court read a right to same-sex marriage into the 14th Amendment, even though that right is found nowhere in the text.” And now, the leaked opinion casts doubt on the privacy framework that Roe rests on, stating: “[Roe] held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.” As such, the leaked opinion in Dobbs v. Jackson Women’s Health Organization introduces legitimate concerns over the future of privacy in America—as well as the societal impacts that could result from its absence.

Caitlin Chin is a fellow with the Strategic Technologies Program at the Center for Strategic and International Studies in Washington, D.C.

Critical Questions is produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).

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