Roe v Wade – A Comparison Of Data Rights In The US With Those In The UK

In a controversial turn of events that has divided the US and re-opened debates on reproductive rights, the landmark case of Roe v Wade has been overturned. This brings into question how data is processed in the US in comparison to the UK and the possible rise in the infringements on privacy.

Case background

On 24 June 2022, the Supreme Court in the US ruled in Dobbs v Jackson Women’s Health Organization (JWHO). The ruling upheld the state of Mississippi’s ban on abortion at 15 weeks of pregnancy, which overturned Roe v Wade, and ended the federal constitutional right to abortion in the United States.

The significance of the 1973 landmark case not only gave women the right to decide whether to have an abortion but the core constitutional principle of privacy and liberty was applied to the decision. The Court held in the case that the constitutional right to privacy included a woman’s right to decide whether to have an abortion.

However, the principle of privacy is now a more contentious issue than ever.

Right of privacy

Justice Samuel Alito, in his judgment, stated that the right to an abortion was a part of the right to privacy, which is not included in the US Constitution.

Prior to the judgment, lawmakers had already started to question the use of data in criminalizing abortion if Roe was to be overturned. Google and the Federal Trade Commission were requested to ensure data of consumers seeking care would be protected. The way data is processed in the US is stark in comparison to the protection GDPR regulations provide individuals in the UK.

Data protection

The General Data Protection Regulations, which were incorporated into UK law by the Data Protection Act 2018, give individuals the right to access, delete, or control the use of their data. It also requires companies to ask for some permission to share data, as under the regulations there has to be a legal basis for processing an individual’s personal data.

The six scenarios where you may be allowed to process data legally are found in Article 6 of GDPR, which states:

In the United States, there is no singular law that covers the privacy of all types of data. They have a mix of laws that have acronyms like HIPAA, FCRA, GLBA, etc. This means that any data collected by companies and products used by people every day is not regulated as there is no federal law regulating many companies.

The post-Roe landscape looks like issues surrounding data protection as Courts may start to ask tech companies to hand over types of data in criminal investigations. For example, the location information of users at abortion clinics, information from period tracking apps, search histories, and even information from third parties. Popular consumer devices and apps already collect large amounts of sensitive personal information from users. This could mean that such companies are facilitating a digital footprint that law enforcement could use to compile evidence against individuals choosing to have an abortion.

Comment

The implications of the Court’s rulings will be long-lasting but on the issue of data protection and the right to privacy, it appears that it will be down to tech companies initially to protect the privacy of their users, by cutting down on tracking and encrypting data. But users will also be left with the responsibility of protecting themselves from criminalization.