Abortion in the Surveillance State

Before Fisher, Purvi Patel, an Indian-American woman in Indiana, was jailed and charged with feticide in 2015 for allegedly inducing an abortion after her online purchase of abortion pills was used as evidence against her. The prosecution also used as evidence Patel’s private text messages with a friend, in which she had confided that she was pregnant and searching for medication abortion online.

As prosecutors weaponize and misuse “feticide” and child abuse endangerment laws to target people who experience miscarriage or self-manage their own abortions, people’s digital footprints of searching for abortion pills, or even text conversations with friends and family members about their pregnancies, are increasingly being wielded as key evidence against them in criminal trials. Those who are most vulnerable to surveillance and criminalization for pregnancy loss are notably people of color, and especially Black pregnant people, as an extension of the racist War on Drugs’ crackdown on pregnancy and suspected drug use.

In criminal cases like these, Conti-Cook says law enforcement has usually obtained this information through individuals “voluntarily handing their phones in,” believing they don’t have the option to say no, or through search warrants for individuals’ phones. But because laws like the six-week abortion ban in Texas rely on civil rather than criminal procedures for enforcement, legal experts are concerned that the very digital platforms many people rely on to access or learn about reproductive care could be used to surveil and penalize them through discovery processes in civil cases.

With legislative threats to abortion on the rise, and as the Supreme Court considers two major cases that could overturn Roe v. Wade, we could be staring down a future in which all pregnancies are surveilled and even miscarriages treated with criminal suspicion, as people could be suspected of inducing their miscarriages with abortion pills. The percentage of people who end their pregnancies using medication abortion continues to increase — notably so during the pandemic — and online searches for the medication can now serve as evidence to sue or prosecute people.

Anti-abortion politicians and organizations have never exactly been keen on privacy—and this makes sense, given the extent that Roe establishes fundamental privacy rights in addition to the legal right to abortion itself. In 2019, it was revealed the director of Missouri’s health department had been tracking Planned Parenthood patients’ menstrual cycles on a spreadsheet. Forty-six states and DC require some form of reporting abortions to the state, while states with fetal burial laws typically require people to get death certificates for aborted fetuses, entering their abortions into the public record.

Heartbeat International, a leading network of crisis pregnancy centers, has historically flooded Facebook and Google with targeted ads (it reportedly received $150,000 of free ads from Google) and uses a chat system called Option Line for “abortion-minded” users who must identify themselves and their locations. Per Heartbeat’s own terms of use, “all remarks” sent through the website can be used by the organization “for any and all purposes… appropriate to the mission and vision of Option Line.”

There’s also a blatant double standard in how content is monitored and moderated online, which benefits anti-abortion activists and hides medically accurate information from the internet. Kara Mailman, senior research analyst at the grassroots reproductive justice organization Reproaction, tells Jezebel their research has found that posts that include keywords like “misoprostol” and “mifepristone” (abortion-inducing medications) are often monitored and restricted by platforms like Facebook and Instagram. For example, a cursory search for ​​misoprostol on Instagram will yield the warning, “Recent posts for #misoprostol are hidden because some posts may not follow Instagram’s Community Guidelines.”

Meanwhile, paid ads and other content from anti-abortion activists about “abortion pill reversal,” a medically unproven and unsafe approach that activists claim can stop a medication abortion that’s underway, are available on these same platforms without the same flags and restrictions. But Facebook recently took down Reproaction’s scientifically sound posts about self-managing abortions with pills. “They gave us no explanation other than the posts allegedly violated community guidelines, and won’t give us recourse to put them back up,” they said. “But anti-abortion groups like Live Action can continue to post misleading ads about abortion pill reversal, sometimes spending thousands on targeted ads per week.”

In 2018, when Sen. Marsha Blackburn (R-Tenn.) ran campaign ads about Planned Parenthood selling baby parts — rhetoric that Mailman notes “was word-for-word used by the Colorado Springs Planned Parenthood shooter in 2015” — Facebook briefly removed the ads, only to restore them and apologize in the face of anti-abortion pushback. “The ad was still inflammatory and inciting violence — the reasons it had been taken down — but was reinstated,” Mailman said. “Meanwhile, [Reproaction] still can’t buy ads for having posted about medication abortion.”

As in-clinic abortion access dwindles in red states like Texas, it’s becoming more necessary for abortion providers and advocates to boost information about how people can safely and legally get abortion pills at home — but they’re being censored and penalized for sharing information about the FDA-approved medication.

Elisa Wells, co-founder and co-director of Plan C Pills, which helps people get information and access to abortion pills online, tells Jezebel that in addition to their posts on abortion pills being flagged and removed “a number of times,” the organization’s Facebook page “mysteriously shut down,” too. “Each time we’d just get the generic message that we’re in violation of their policies or whatever, but we don’t know what we’re ‘in violation of,’ because we provide research-based information — we don’t sell products, we don’t provide medical care.”

If people with unwanted pregnancies aren’t able to even get information about their options for abortion care, Wells notes the reality that some could be forced to either carry pregnancies to term or suffer long-term health and economic detriments as a result. “It’s the economic costs, but the emotional, mental health costs, too, of waiting, worrying, and stigma,” she said. “If you want to terminate a pregnancy, and you’re not able to, that’s the ultimate cost.”

And where platforms like Google have reportedly offered thousands of dollars in free ads to groups like Heartbeat International, and Facebook has publicly apologized to Sen. Blackburn, abortion providers and advocates have long been subject to massive digital threats and even cyber crimes from anti-abortion activists — often translating into real-life violence — with little protection online.

The militant anti-abortion group Operation Rescue, which has been linked to the assasination of an abortion provider in 2009, is known to keep an online database that catalogs the names, addresses, photos, and videos of abortion providers across the country. According to Mailman, the database and Operation Rescue’s other wide-ranging, often violent tactics reflect the convergence of online and physical threats by anti-abortion activists. “It’s not just the ways they can gather technology or information online, but also the ways they physically go and gather data on abortion clinics and staff, with in-person stalking, intimidation,” they said.

Between 1993 and 2016, anti-abortion activists have murdered 11 and attempted to murder 26 people working at abortion clinics, according to the National Abortion Federation. NAF reports violence targeting clinics reached an all-time high in 2018. While the 1994 FACE (Freedom of Access to Clinic Entrances) Act has prohibited threats and obstruction of access to clinics, the law has neglected to protect patients and providers from cyber threats, and cyber surveillance and obstruction of abortion access.

Recent digital attacks on abortion access have ranged from a massive, coordinated hack on the National Network of Abortion Funds’ annual bowl-a-thon fundraiser in 2016, which leaked funders and advocates’ personal information and subjected them to a barrage of pro-Nazi messages, to the rampant anti-abortion ads and misinformation people have to sift through just to find an abortion provider or online resources.

When it comes to pregnancy and digital safety, Conti-Cook says we’ve largely been left to fend for ourselves — which she notes is possible, with use of encrypted messaging apps like Signal, encrypted email like Protonmail, and virtual private networks, or VPNs. But it’s also important we demand more of those who serve us. “Lawmakers have to seriously contend with how much data is being collected, and then turned around and sold, including being sold to law enforcement,” she said.

Abortion is supposed to be a legal, constitutionally protected right in this country. Yet despite the violence people who have and provide abortions face, online and in real life, they’re the ones facing a rise in criminalization and policing instead of the anti-abortion activists who threaten them. According to National Advocates for Pregnant Women, criminal charges for miscarriages and stillbirths have tripled in recent years, from 413 prosecutions between 1973 and 2005 to more than 1,250 between 2006 and 2020.

Conti-Cook hopes providers and advocates aren’t intimidated into giving up their vital and often online work, and she believes solidarity within the reproductive justice movement will be essential to keeping each other safe. “When we’re thinking about what digital routines we’re willing to incorporate in our own lives for our safety, we should think about not just how this issue impacts us, but how it impacts the person in our networks who’s most vulnerable,” she said. “When you’re thinking, ‘Do I go through the trouble of getting on Signal or Wire?’ — we should be thinking about the person who might be most vulnerable to prosecution, or some SB8 litigation.”

Facebook and Google did not respond to requests for comment.