Democrats work to protect privacy of data of patients seeking abortion

Democrats in the U.S. Congress and the Michigan Legislature are working to protect reproductive health data before Republicans take control of Congress and the presidency in January.

On Dec. 11, Sen. Elizabeth Warren of Massachusetts and several other Democratic lawmakers introduced the Health and Location Data Protection Act of 2024.

The bill would make it illegal for data brokers to “sell, resell, license, trade, transfer, share, or otherwise provide or make available” health and location data. 

“Data brokers are raking in giant profits from selling Americans’ most private information – even location tracking data from visits to clinics for reproductive care,” Warren said in a news release that claimed that brokering data is a $200 billion industry. “As Republicans ramp up efforts to criminalize abortion, it’s more important than ever to crack down on greedy data brokers and protect Americans’ privacy.”

Since the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade in June 2022, abortion rights activists have been concerned about protecting information related to reproductive health and abortion care — particularly in states where abortion is banned or severely restricted.

In an interview with NPR, Albert Fox Cahn, the founder of the Surveillance Technology Oversight Project, said it’s not just period tracker apps that can threaten a person’s privacy with regard to abortion, but also apps that gather location and ad data as well. 

Data brokers claim patients’ health information is fully anonymized, or removed from its source, but the nonprofit news outlet NOTUS reported in October that Atlas Privacy, a company that removes customers’ personal information from data broker sites, was able to track a person’s cell phone as they went from an abortion clinic in Tallahassee, Florida, to a house in Mississippi, using a tool marketed to law enforcement agencies.

“No one should have to fear state violence when seeking health care,” Farah Diaz-Tello, the senior counsel and legal director of the reproductive rights organization If/When/How, said in an email. “But the misuse of our data is creating widespread panic about the monitoring of our reproductive health decisions.”

David Cohen, a professor of law at the Drexel University Thomas R. Kline School of Law, said Warren knows that nothing’s going to happen with her bill. A bill introduced this late in the year won’t make it through both chambers, he said, and with Republicans in control of the House and set to take control of the Senate in January, it likely wouldn’t pass if Warren reintroduced it next year.

“This is just messaging, scoring political points, fundraising, which is important,” Cohen said. “We need people to be able to make their political points and get their message out. Those are valuable things that legislators do, not just passing laws. So no one’s under the illusion that this is going to go anywhere.” 

Messaging bills provide a lawmaker’s political position, Cohen noted. They are often aspirational, and politicians understand they may not pass but are important to show voters where their elected officials stand on an issue and what’s important for them to fight for. 

Democrats in the Michigan Legislature have introduced a similar bill. S.B. 1082, a bill to “regulate the collection, processing, and selling of reproductive health data,” passed out of the state Senate by a vote of 20-16 on Dec. 6 without any Republican support and advanced to the state House of Representatives. It would have to pass the House before the current legislative session ends, likely on Dec. 19.

“I think a lot of the perception is that, because this is medical data, that my voluntarily entering it into a service that is supposed to provide me with a service in return, means that my data is protected, and far too often that is not the case,” Michigan Sen. Mallory McMorrow said during a floor speech on Dec. 5, adding: “I don’t think people realize how much information, biometric data is in our watches, in our phones. They can be used against us.”

Gov. Gretchen Whitmer told the Michigan Advance in October that data being misused or weaponized against people is a “very real concern” for Michigan residents and others who use apps such as those that track their menstrual cycles. 

The Michigan House flips to a Republican majority in January. 

Jess Travers, a spokesperson for the Michigan House Democratic Caucus, told the Michigan Independent that it still has a chance to get on to the calendar for a vote before the end of the session.