“This summer, the United States Supreme Court issued a grave, myopic decision that failed the American people.”[1]

So began the September 22, 2022, testimony of California Attorney General (“AG”) Rob Bonta before Maryland’s Joint Committee on Cybersecurity, Information Technology, and Biotechnology.[2]  AG Bonta was referring to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org.[3] The Joint Committee’s mandate is protecting Marylanders from phishing and ransomware attacks, and ensuring that companies safeguard customer data, among other digital threats.[4] But AG Bonta’s testimony about new protections for reproductive data in California indicates that the Joint Committee is also eager to hear how other states safeguard the privacy of those seeking and providing abortion care. According to Michael Lore, Chief of Staff for Senator Susan C. Lee, Maryland lawmakers are troubled by state laws creating bounty schemes (where private citizens are granted broad standing to sue abortion providers and collect money, even if they have no connection to the provider or her patient) and the rise in criminal prosecutions for seeking abortion care.[5]

As AG Bonta explained, California’s new data privacy law, Assembly Bill 1242, prohibits California law enforcement from assisting outside law enforcement in obtaining data about or arresting someone for performing or receiving an abortion.[6] California’s courts are also prohibited from issuing abortion-related warrants, and technology companies in California are prohibited from responding to abortion-related warrants from out-of-state law enforcement.[7] As a state working to increase access to abortion while nearly half the country heads in the other direction, California recognizes that protecting digital data is a critical step toward that goal.[8] Senator Lee and her colleagues in the Maryland General Assembly are considering similar measures to protect the privacy of Marylanders, with a focus on data minimization, a concept where companies only collect and retain personal data that is necessary.[9]

In Dobbs,[10] the Courtoverturned Roe v. Wade[11] and Planned Parenthood v. Casey,[12] upending decades of precedent that rooted the right to an abortion within the right to privacy that the Court previously found in the Fourteenth Amendment.[13] Some states were already using private personal data and digital communications to enforce abortion restrictions and criminalize negative pregnancy outcomes, and several recent cases illustrate how states that ban or severely restrict access to abortion might lean heavily on private personal data to pursue criminal charges against those seeking or providing reproductive care.[14] Prior to the Dobbs decision, a woman in Indiana was convicted of feticide after law enforcement found abortion-related searches in her browser history.[15] In Nebraska, a mother and daughter were criminally charged after law enforcement used a warrant to force Facebook to hand over their private messages.[16] The seized information revealed that the mother had obtained abortion pills for her 17-year-old daughter, who was 28 weeks pregnant and well past the 20 week cutoff for abortion care mandated by Nebraska law at the time.[17] Law and privacy experts foresee that these types of cases will become more commonplace, predicting a stark increase in the use of warrants to search through personal digital data and communications belonging to those seeking abortion care.[18]

In the wake of the Dobbs decision, Maryland lawmakers set out to ensure that the state was prepared not only to continue to protect access to abortion for Marylanders, but also to accommodate an influx of patients from states where abortion is banned or severely restricted.[19] The Maryland General Assembly passed the Abortion Care Access Act, which expands the kinds of healthcare professionals who may perform abortions, provides money for reproductive care training, permanently covers abortion under Medicaid, and requires private insurance to cover abortions without charge.[20]

According to her staff, Senator Lee is highly concerned with the digital privacy of Marylanders, and AG Bonta’s testimony before Maryland’s Cybersecurity Council suggests that she and other lawmakers are ready to go further to protect private personal data and digital communications related to abortion care in Maryland.[21]

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Laura Grant is a third-year law student at the University of Baltimore School of Law and an Associate Editor for Law Forum. While at UB, Laura has worked as a Rule 19 student attorney, a judicial intern with the Equal Employment Opportunity Commission, and a summer associate at Venable, LLP. She is Academics Coordinator for UB’s chapter of If/When/How: Lawyering for Reproductive Justice and President of UBalt Parity. Laura recently deleted her Twitter account and looks forward to scrubbing other evidence of her existence from the Internet.

Read more: As Maryland Strengthens Reproductive Rights, Protecting Personal Digital Information Is the Next Logical Step

[1] Press Release, Off. Att’y Gen., Attorney General Bonta Testifies at Maryland Cybersecurity Council on California’s Groundbreaking Effort to Protect Digital Information on Abortion (Sept. 22, 2022), https://oag.ca.gov/news/press-releases/attorney-general-bonta-testifies-maryland-cybersecurity-council-california’s [hereinafter Press Release].

[2] Id.

[3] 142 S. Ct. 2228 (2022).

[4] General Assembly: Joint Committee on Cybersecurity, Information Technology & Biotechnology, Md. Manual On-line, https://msa.maryland.gov/msa/mdmanual/07leg/html/com/10tech.html (last visited Oct. 25, 2022).

[5] Zoom Interview with Michael Lore, Chief of Staff for Sen. Susan C. Lee, Md. Gen. Assembly (Nov. 14, 2022) [hereinafter Lore Interview].

[6] Press Release, supra note 1.

[7] Id.

[8] Alexei Koseff, ‘When You Don’t Know Where to Go, You Come Here:’ California Preps to Be a Haven for Abortion Rights, Cal Matters (Apr. 25, 2022), https://calmatters.org/politics/2022/04/california-abortion-rights/.

[9] Lore Interview, supra note 5.

[10] Dobbs, 142 S. Ct. 2228.

[11] 410 U.S. 113 (1973).

[12] 505 U.S. 833 (1992).

[13] See Griswold v. Connecticut, 381 U.S. 479 (1965).

[14] Cat Zakrzewski, Pranshu Verma & Claire Parker, Texts, Web Searches About Abortion Have Been Used to Prosecute Women, Wash. Post (July 3, 2022) https://www.washingtonpost.com/technology/2022/07/03/abortion-data-privacy-prosecution/; Kevin Collier & Minyvonne Burke, Facebook Turned Over Chat Messages Between Mother and Daughter Now Charged Over Abortion, NBCNews.com (Aug. 9, 2022), https://www.nbcnews.com/tech/tech-news/facebook-turned-chat-messages-mother-daughter-now-charged-abortion-rcna42185.

[15] Zakrzewski, supra note 14.

[16] Collier, supra note 14.

[17] Id.

[18] Id.; Zakrzewski, supra note 14.

[19] Darcy Spencer, New Maryland Abortion Care Access Law Goes into Effect Friday, NBCWashington.com (June 27, 2022), https://www.nbcwashington.com/news/local/new-maryland-abortion-care-access-law-goes-into-effect-friday/3087102/.

[20] Danielle E. Gaines, With Legislative Overrides, Paid Leave and Abortion Access Bills Become Law in Maryland, Md. Matters (Apr. 9, 2022), https://www.marylandmatters.org/2022/04/09/with-legislative-overrides-paid-leave-and-abortion-access-bills-become-law-in-maryland/.

[21] Lore Interview, supra note 5.