Digital Transformation Data & Privacy

The repeal of Roe v Wade will impact our privacy landscape at large, experts predict

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By Kendra Clark | Senior Reporter

June 24, 2022 | 13 min read

Roe was fundamentally a privacy ruling. Its reversal has far-reaching implications not only for healthcare and the right to choose, but also for consumer privacy of all kinds, per leading experts. Other Constitutional rights contingent on privacy precedent — including same-sex marriage — could be next on the chopping block.

The US Supreme Court today struck down Roe v Wade in a 6-3 decision. The highly anticipated ruling on Dobbs v Jackson Women’s Health Organization wipes the Constitutional right to an abortion in the United States — a right that had been in place for nearly five decades.

Media coverage — which heated up after a draft of the Court’s decision was leaked in May — has largely focused on how a post-Roe society will impact abortion access in the US and shape health policy across states. An oft-neglected but critical piece of the abortion legislation puzzle, however, has no explicit bearing on healthcare; it has to do with the Constitutional right to privacy.

Supreme Court in US

The Supreme Court's Dobbs ruling may have broader implications for consumer privacy rights / Adobe Stock

Untangling a complicated web

Though it's is not explicitly mentioned in the US Constitution, Supreme Court cases dating to the late nineteenth century have established an implied right to privacy. Elements of the 14th, 1st, 3rd, 4th, 5th and 9th Amendments include language that has been interpreted as ensuring protections for individuals’ rights to private decision-making.

A 1923 Supreme Court case, Meyer v Nebraska, prompted the Court to explicitly articulate the connection between liberty and privacy, arguing that the two go hand-in-hand under the 14th Amendment’s “liberty claim.” In Meyer, the Court ruled that the 14th Amendment “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

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Legal scholars claim that, taken together, this overarching right to independent decision-making concerning personal matters — free from the state’s intervention — is known as ‘decisional privacy.’ According to Jolynn Dellinger, a senior lecturing fellow at Duke University School of Law who specializes in privacy and ethics, decisional privacy “can encompass everything from child-rearing, to contraception, to whom you can have sex with, how you can have sex and whom you can marry.”

Abortion as a decisional privacy issue

Decisional privacy is central to the Roe ruling. When the decision was issued in January of 1973, the Court rendered abortion a ‘privacy right’ and a ‘liberty claim’ protected by the 14th and 9th Amendments and informed by a handful of other amendments. The written decision mentions privacy 25 times.

But privacy remains an ill-defined right in the US because it is not explicitly outlined in the Constitution. Dellinger explains that throughout the years, the Court has sought, to varying degrees, to cement both decisional privacy and informational privacy — which concerns personal data — as Constitutional rights. But it’s had to get "creative" in doing so, she says.

In its decision to overturn Roe today, the Court sought to challenge the privacy protections established with Roe that previously upheld the federal right to an abortion. In the 213-page majority opinion made public today, Justice Alito acknowledges the privacy argument at the heart of both Roe and Planned Parenthood v Casey, another landmark abortion ruling. : “...supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed it as the freedom to make ‘intimate and personal choices’ that are ‘central to personal dignity and autonomy.’”

But he goes on to argue that Roe’s treatment of the Constitutional language was “remarkably loose,” deriding the notion that a right to privacy could be pieced together from a handful of different amendments. “Roe expressed the ‘feel[ing]’ that the 14th Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance.”

Most importantly, Alito writes that Roe’s definition of the Constitutional “right of personal privacy” unfairly conflated two different protections — the right to not disclose information and the right to make personal decisions without interference from the government. “Only the cases involving this second sense of the term could have any possible relevance to the abortion issue,” he says, “and some of the cases in that category involved personal decisions that were obviously very, very far afield.”

With today's decision, the Court has positioned abortion not as a matter of personal decision-making, but as a matter that's best left in the hands of state representatives. It implies, furthermore, that the Constitutional right to privacy is illegitimate, arguing that the existing right has been constructed on shaky grounds.

The legal logic undergirding today's decision, in other words, takes aim at the entire concept of privacy as a protected Constitutional right.

Are same-sex marriages and contraceptives the next to go?

The implications of today’s ruling could be destabilizing, both politically and socially; a loss of the right to decisional privacy and the protections ensured under the 14th Amendment’s Due Process Clause could jeopardize Americans’ right to raise their children as they please, marry whom they wish and have consensual intimate relationships without government interference.

“Over time, the Supreme Court has incorporated other rights [within the] scope of 14th Amendment protections — before Roe v Wade, for example, in Griswold v Connecticut the issue of ‘marital privacy’ [was established as a 14th Amendment protection,]” says Arielle Garcia, chief privacy officer at media agency UM Worldwide. In essence, the overturning of Roe threatens to challenge the Constitutionality of same-sex marriage and other issues concerning personal decision-making.

This is not an alarmist sentiment. In fact, these rights may already be next up on chopping block. In a concurring opinion to the Dobbs ruling, Justice Clarence Thomas writes that in light of today’s decision, the Court should revisit all past cases that rely on the right to privacy. “In future cases, we should reconsider all of this Court’s substantive due process precedents,” he said. These include landmark rulings on contraception, same-sex marriage and more.

The link to information privacy

Beyond these implications, some privacy experts suggest that issues of decisional privacy are intimately tied to another kind of privacy (and one that is also a hot-button issue in US courts today): information privacy.

Among the most concerning direct possibilities is the prospect that location-based ad targeting becomes weaponized in state-level abortion battles. As it stands, advertisers already have data insights on whether a person has visited an abortion clinic. “There are anti-abortion groups that will target advertising to people sitting in abortion clinics using geofencing [technology,]” says Dellinger. These practices are likely to become more common now that abortion rights will become the provenance of states. Of course, Dellinger suggests, adtech companies and ad publishers could take a stance and refuse to take advertising dollars from such organizations — but at the end of the day, she finds such a prospect unlikely. “Money is money,” she says.

From a broader perspective, the philosophical and legal debates surrounding personal decision-making concerns both the kind of privacy implied in the 14th Amendment as well as information privacy. “Think about … the content that you receive when you're on your phone,” she poses. “[Targeted] advertising is driven by profiles of you and inferences about you drawn from what you click on, what you read and how you spend your time on your device — [as well as] lookalike populations of you.” This pattern impedes on decisional privacy, she says. “When you put in a search to Google, is it some objective thing where you're getting all the results that are responsive to your request? No. You're getting the things that … ads [support]. On Amazon, what do you see first? Amazon’s ‘preferred’ products.” By shaping the content that consumers encounter each day, Dellinger argues, advertising is “affecting the information we have access to and affecting our decision-making.”

Dellinger likens this status quo to a surveillance state. “The content being pushed to you … and that surveillance that's associated with that is going to affect people's freedom to make individual decisions post-Roe. And that's what I think is most frightening about this situation.”

UM Worldwide’s Garcia also recognizes the potentially deceptive nature of the advertising industry’s tracking and data collection practices. She sees questions about so-called “dark patterns” — interfaces designed to mislead users or misrepresent or obscure information — as potentially entwined with concerns about personal autonomy and decision-making. She's also concerned about “AI-driven content recommendation algorithms and algorithmic influence on decision-making, particularly [in cases when those are] not transparent to the individual.”

From a more industry-specific perspective, Garcia says that “the Roe v Wade and abortion debate highlights important questions” for media, advertising and publishing professionals “about appropriate, fair and responsible data collection and use.” She points out a few key areas of data privacy that may come under greater scrutiny in light of concerns about decisional privacy.

For one, she points to a common practice in business of taking data that a consumer has willingly shared — for an express purpose — and using that data for undisclosed secondary purposes. The Colorado Privacy Act — one of just a handful of comprehensive, state-level consumer data protection laws — requires organizations to notify individuals when their data is used for secondary purposes. Garcia suggests that other states may be taking note.

She also predicts that business uses of consumers’ location data will become increasingly fraught. “Advertisers need to consider the partners they work with, where those partners collect data, and, in particular, who those partners sell location data to,” she says.

Perhaps most important is the question of what’s often categorized as ‘sensitive data’ — information about an individual that requires a higher level of protection, which can include biometric data, medical records as well as information about religion, race and ethnicity and more. “Collecting certain sensitive data may inherently pose risk,” says Garcia. “In light of the abortion debate, companies may be considering what data they and their partners hold that could become subject to legal requests. For our industry, this is an opportune time for all to contemplate data minimization opportunities, data retention policies and practices and to fast-track evaluation of their sensitive data collection and use.” She notes that this activity is especially pressing in light of the fact that existing US state data privacy laws will require consumer opt-ins to allow organizations to collect sensitive data starting in 2023.

Only time will reveal the tangible effects of today's ruling on decisional and information privacy. Many, however, aren’t waiting to take a stand. Chloe Autio, an advisor and senior manager specializing in tech and AI at policy consulting firm The Cantellus Group, is one of a small contingent of women working in privacy law and policy who have published an open letter calling for a federal law to protect decisional privacy. “It’s not often that you have an opportunity to speak on issues for which my professional and personal passions intersect,” Autio tells The Drum.

“My family history taught me first that restricting abortions not only does not stop abortions, but it can put women's lives at risk,” she says. “My grandmother, who helped raise me, was left motherless in 1930 in rural Montana when her mother died giving herself an abortion. My grandmother told stories of herself and friends — decades later — trying to induce abortions and miscarriage by riding horses around, and the work of trying to figure out how to travel to other states to get an abortion. My father became a doctor and specialized in family practice, and made a point to do abortions in a large rural state throughout the 90s and 2000s because he felt it was an important service to provide. In high school I volunteered at Planned Parenthood and my father’s clinic, proud to be part of the community of women and healthcare providers supporting other women who needed or wanted abortions.”

It’s this personal connection that’s motivating Autio to advocate for more explicit privacy protections on the federal level — because she recognizes the intersection of these issues. “Decisional and informational privacy overlap specifically in the abortion context,” she says. “Decisional privacy protects the right to make the decision to have an abortion and informational privacy protects information about that decision from being shared, disclosed or monitored.”

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