Legal Experts Discuss Data Privacy, Criminalization of Abortion in Post-Dobbs World at Law School Panel

Legal experts and scholars discussed the use of data from menstrual tracking applications in courtrooms in the wake of the Dobbs v. Jackson Women's Health Organization decision at a Harvard Law School abortion and digital rights panel on Tuesday.

Harvard Law School Clinical Instructor Alejandra L. Caraballo, who teaches at the school’s Cyberlaw Clinic, moderated the panel of technological and legal experts who commented on the history of criminalizing abortion and the emerging implications of online medical data.

Civil rights lawyer Cynthia Conti-Cook, who serves as a Technology Fellow at the Ford Foundation, said, considering the current age in which third parties like Facebook Messenger have access to vast amounts of data, individuals need to think more critically about the means and extent to which they share their personal information online.

“It’s something that we all have to start paying attention to, not just in the context of protecting ourselves and our autonomy and reproductive health, but for many different reasons — to protect who we love, and protect how we want to die, and how we want to be treated by healthcare professionals,” Conti-Cook said.

Yveka Pierre, Senior Litigation Counsel for nonprofit organization If/When/How: Lawyering for Reproductive Justice, explained how data from menstrual cycle tracking apps could be used in court cases. Instead of monitoring all users, prosecutors are more likely to build their case using data from a tracking app after the woman is accused of having an illegal abortion, Pierre said.

“The way that is likely to be used is: your phone is taken away, your laptop, your tablet, whatever — and then someone is able to get access to that app and say, ‘Look, Judge, she knew she was pregnant because she tracked her last period to be that day — and that’s how she knows she was at that gestational age, we can move forward with the prosecution for that reason,’” she said.

Panelist Kate Bertash of the Harvard Law School Cyberlaw Clinic said that “just being aware of the footprint that’s generated can help us act differently.”

Pierre cited the Hyde Amendment — a post-Roe v. Wade, pre-Dobbs legislation that banned the use of federal funds to cover abortion services — as an example of how disinterest in racially and socioeconomically disadvantaged women fosters ignorance of previous abortion access limitations.

“There’s part of us that needs to navigate through why the sympathetic character is a white woman in her 30s with her blonde daughter or her brunette daughter in these ads,” Pierre said of mainstream abortion activism that followed the overturning of Roe in June. “It’s not folks that are more likely to be criminalized.”

Harvard Law School administrator Emily R. Neill, who attended the panel, said the event reaffirmed the need to reevaluate portrayals of who is criminalized by anti-abortion laws.

Neill said recent public outrage “ignores a long, long history of entrapping and ensnaring for women of color.”

Bertash said that collective advocacy can make it possible to ensure protection for those seeking reproductive health care access and those offering services.

“When you are actually pregnant and giving birth is another time that you're incredibly policed,” she said. “All of these people, if we bring ourselves together, make singular demands of these platforms, and also policymakers, then we have those opportunities to make an impact.”