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How the Supreme Court Upending of Roe vs. Wade Could Effect Telehealth Privacy Rights

by | Jun 14, 2022 | 0 comments

Privacy Rights, telehealth abortion, telehealth privacyTelehealth abortion groups have warned of telehealth privacy rights being affected if the Supreme Court strikes down Roe vs. Wade. A Supreme Court information leak in May indicated that the 1973 reproductive rights Roe v. Wade case might be overturned, effectively removing the constitutional right to abortion in the United States.

According to a report by the Guttmacher Institute, a research and policy organization, 26 states are likely to ban abortion if the case is overturned. Bans could also lead to the criminalization of abortion. For example, Louisiana lawmakers are pushing a bill that could subject the person seeking an abortion, not just the provider, to criminal prosecution. Telehealth privacy advocates have warned that the states prohibiting abortion may infringe on the data privacy of women who seek telehealth abortions.

States’ Actions Towards Telehealth Abortion

Some states have started legislation to ban abortion, while others are passing laws to uphold the original Roe vs. Wade language. Many states are still in the process of discussion. See a summary of many the states taking action against telehealth abortion and updated bills pre-Roe and post-Roe here.

Two states opposed to abortion are highlighted below:

Texas

Texas Gov. Greg Abbott (R) signed legislation (S.B. 8) in May of 2021 to ban abortion at six weeks of gestation, a time when many people may not realize that they are pregnant. The law went into effect on September 1, 2021. The law allows anyone opposed to abortion to sue an abortion provider or anyone who assists a patient obtain an abortion, such as by providing financial help or transportation. Opponents can sue regardless of where they live or are associated with the patient.

Oklahoma

Oklahoma has approved a bill that will prohibit almost any abortion. The law also contains a civil enforcement device that allows the public to bring a civil case against anyone delivering an abortion or aiding such action. Statutory damages have been set at a minimum of $10,000. The court may also award compensatory damages. The law will not penalize people for undergoing an abortion. 

Risk of Telehealth Privacy Rights Related to Telehealth Abortions 

Politico quoted the head of the Surveillance Technology Oversight Program, Albert Fox Cahn, saying that pregnant women have been arrested for years following electronic surveillance. He expressed concern that authorities may seek to breach telehealth privacy to apprehend women seeking telehealth abortions. With contention surrounding this issue being so high, supporters of both sides would do well to exert extra caution when using telehealth. Below, some of the vital technology-related vulnerabilities are outlined.

Direct-to-Consumer Apps

The Health Insurance Portability and Accountability Act (HIPAA) protects consumers’ telehealth privacy through telehealth apps or online patient portals. However, many apps, such as menstrual cycle or health activity trackers, contain lots of health-related information. Many of these apps are not offered the same protections as medical records. Not considered covered entities under HIPAA, the companies that create them can also share and sell patient data. See TBHI’s previous article Am I a HIPAA Covered Entity? for more information. Related issues are becoming increasingly commonplace. Last Year, the Federal Trade Commission (FTC) reached a settlement agreement with Flo Health after the company shared information about its customers’ menstrual cycles and ovulation with marketing firms, including Facebook and Google.

Use of Geo-Fence & Keyword Searches

State-level surveillance of people’s personal health decisions could be possible due to the dangers of states being at odds in their stances about abortion and the various digital tools available to law enforcement, prosecutors, and savvy internet users worldwide. Geo-fencing (geofencing) uses the global positioning system (GPS) or radio frequency identification (RFID) in a software program to identify geographical areas occupied by a user. Geofence and keyword search warrants have become increasingly popular in police circles investigating various crimes. Geofence warrants allow police to track smartphone movements, and keyword search warrants permit them to track suspects’ search histories. A geofence or reverse location warrant is a court-ordered search warrant that allows law enforcement to search a digital database to identify all active mobile devices within a particular geofence area. Geo-fence software users could use these warrants to track visits to abortion clinics and use them to discover telehealth abortion searches. It can also track people opposed to abortion and their whereabouts.

Governments can avoid warrants altogether if they buy data from brokers. Federal agencies frequently purchase access to data that supplies citizens’ information via their smartphones. The Electronic Communication Privacy Act (ECPA) requires the government to apply legal processes before accessing private information. According to the Fourth Amendment, police can get a search warrant. However, the ECPA doesn’t cover data brokers and, as private actors, are not obliged to follow the Fourth Amendment. This means that your data could be up for sale to government agencies. However, the police are not the only parties accessing these software programs. Various consumer groups can easily obtain them without a warrant to illegally collect information related to the lack of enforcement on both sides of the abortion argument: both pro-abortion and pro-life groups.

Protecting Your Telehealth Privacy Rights

Knowing your telehealth privacy rights is half the battle won. Healthcare providers and the clients/patients they serve would do well to understand that the authorities have the power and the tools to track online movements. It is wise for all clinicians to encourage patients and clients to get fully educated about their digital privacy and act with caution.

Please leave your thoughts, comments, and questions below.
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