To print this article, all you need is to be registered or login on Mondaq.com.
On June 24, 2022, the Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization. Authored by Justice Alito, the decision, which hewed closely to the draft opinion that was leaked on May 2, 2022, upheld the Mississippi abortion ban at issue (6-3) and further held that the Constitution does not grant a right to abortion ( 5-4), overturning the landmark decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. 1 Four justices — Thomas, Gorsuch, Kavanaugh, and Barrett — joined Alito for a 5-4 holding overturning Roe. This opinion will have far reaching impact on the “liberty and equality of women” across America, as Justices Breyer, Sotomayor, and Kagan argue in their dissent.
2 Additionally, Justice Thomas’s concurring opinion indicates that the Court’s work may not be done with regard to reevaluating its other key substantive due process precedents that read a privacy right into the Constitution, including rights to contraception and same-sex marriage.
Immediately, the Court’s Dobbs decision means that there is no longer a federal constitutional right to an abortion, and thus abortion procedures and medication will be governed by the laws of each state. Access to abortion is expected to be severely restricted or banned outright in nearly half of the states. In Part II of this alert, we discuss the status of abortion laws in states across the country.
With this dramatic shift in the legal landscape, many in the private sector have taken steps to protect access to and the privacy of individuals seeking reproductive health care in America. However, those actions are not without legal risk. Companies may face legal or political retribution for such action through the statutes themselves, investigations by state law enforcement officers, subpoenas or data requests, and punitive, retaliatory action in unrelated spheres.
Jenner & Block supports reproductive rights and the right to an abortion through extensive work on behalf of our clients and in our pro bono work, and is employing that experience, as well as our deep work in investigations and compliance, to advise our corporate clients who are navigating this shift in the law on a myriad of complex issues, including advising:
- A diverse range of companies interested in supplementing their employee benefits to ensure employees have the funds to travel to states to access legal abortion care;
- Companies that may be involved in supporting travelers seeking to obtain safe and legal access to abortion;
- Health care providers who are working to understand whether their continued provision of abortion care or medical consultations, which include information about abortion care, will lead to criminal or civil liability in the states they serve; and
- Technology companies want to ensure that the privacy of their users is protected or concerned that use of their platform could put users at risk of being prosecuted or that use of technology services to provide greater access to care could be alleged to be “aiding and abetting”. an abortion.
Below we discuss the risks of which companies should be aware, and provide guidance for how companies can proactively respond to this changing legal landscape.
I. Risks for which Companies Should Prepare
In the piecemeal and uncertain environment of abortion law in a post-Dobbs America, risks for companies can vary significantly even within states with abortion bans. State attorneys general and district attorneys have broad discretion in how they enforce state abortion statutes. Many state and local law enforcement agencies are primed to take action: Texas Attorney General Ken Paxton, joined by attorneys general from 23 other states, 4 filed an amicus brief in Dobbs in support of Mississippi’s abortion ban. These general attorneys may be more likely to take enforcement action when permitted. Local prosecutors in each state will handle most enforcement; some will almost certainly enforce the laws promptly. In fact, Attorney General Paxton issued a statement indicating that district attorneys could immediately enforce the state’s pre-Roe ban.
Conversely, however, some prosecutors in states with abortion bans have publicly stated that they will not enforce state abortion restrictions, including certain district attorneys in Texas and Louisiana. A list of 70 attorneys general and district attorneys who have not vowed to prosecute abortion offenses is available here.
Within this context, the likely greatest legal risk for companies based on these bans is the threat of being caught up in civil investigations launched by state attorneys general and / or criminal investigations led by district attorneys, and the subpoenas and data requests that may flow from them. However, companies, particularly high-profile companies, may also risk liability from the statutes themselves, or political retaliation from action the companies take to protect the privacy and reproductive health rights of their employees and consumers.
A. Subpoenas or Civil Investigations from State Attorneys General or Civil Litigants
As prosecutors and civil litigants are who are provided authority to enforce abortion laws under state statutes — seek to build their cases, they will likely seek to gather evidence of health, commercial, and location data through subpoenas or civil investigations. While these investigations may seek to gather information from a wide range of companies, tech companies may provide a particularly attractive target as prosecutors seek internet search histories, location data, and / or health information stored on smartphones, personal computers, or in the cloud. States have used this type of data in abortionrelated investigations before, including in Missouri in 2019. Attorneys general might not only pursue information from third-party tech companies who have data about those under investigation, but also potentially consider such companies potential targets who — as discussed further below — aided and abetted conduct prohibited by state restrictions.
Subpoenas or warrants could seek health data stored on an app or device, or information stored by tech companies. For instance, over twenty percent of women use a female health app that can predict pregnancies or track pregnancy progress. Some of these apps have sold data to third parties and such apps may have different levels of privacy protection. This data could be used to indicate when a woman was, and then was not, pregnant.
Location data will likely be at issue, too, especially as women consider traveling across state lines for abortion care. Location data can allow law enforcement to determine if a person has visited a clinic or traveled out-of-state to a state where abortion is legal; Even when data is anonymized, reporting has found that identification is relatively simple. At least one advertising company has already used ad-targeting location technology to send micro-targeted messages at women in abortion clinics. Therefore, some activist groups are simply advising people seeking an abortion to leave their smartphones at home.
Similarly, law enforcement could use travel records as a proxy for location data: by seeking information from credit card companies or travel companies such as hotels, buses, and airlines, they could determine when and where a woman traveled, raising similar risks as location data. .
Internet History and Activity
nformation from those who clicked on ads or other links on an abortion providers’ website, or even the website of organizations providing information about how to seek an abortion, could be claimed by prosecutors as evidence that an individual is seeking an abortion. Information of this nature could be shared with or in possession of tech companies through normal data collection and ad processes. Prosecutors could also seek information such as search histories, payment histories, or messaging or email information in order to identify people seeking an abortion or who assisted them in doing so.
Law enforcement and civil litigants exercising “private attorney general powers” could access this information in several ways. Data brokers already sell all of this data, and information on abortion clinic visitors particularly — and since this information is sold on the open market (ie, no subpoena required), private individuals can report on other people’s abortions for financial gain. This practice is now incentivized in Texas, which provides a right to sue clinics, doctors, nurses, and those that drive a woman to get an abortion for at least $ 10,000.
Law enforcement — and, to a lesser extent, civil litigants — could also issue subpoenas or warrants to gather such information. Law enforcement warrants could include geofence warrants and keyword search warrants, both of which request information on every device that fits a certain criteria (ie, location at a certain place or time, or who searched for a certain term). Again, tech companies will be particularly attractive targets.
To read the full article click here
1. Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 2022 WL 2276808 (US June 24, 2022).
2. Dobbs, 2022 WL 2276808, at * 71 (Breyer, J., Kagan, J, & Sotomayor, J., dissenting).
3. Dobbs, 2022 WL 2276808, at * 58 (Thomas, J., concurring).
4. Alabama, Alaska, Arkansas, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wyoming.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.