Post-Dobbs: A Whole New World of Privacy Law

By: Enny Olaleye

Last summer, The United States was rocked by the U.S. Supreme Court’s (SCOTUS) ruling in Dobbs v. Jackson Women’s Health Organization, a landmark decision striking down the right to abortion, thereby overruling both Roe v. Wade and Planned Parenthood v. Casey. In its wake, the Dobbs decision left many questioning whether their most sensitive information—information relating to their reproductive health care—would remain private. Dobbs set in motion a web of state laws which make having, providing, or aiding and abetting the provision of abortion a criminal offense, and many now fear that enforcing those laws will require data tracking. Private groups and state agencies ranging from the health tech sector to hospitality industries may be asked to turn over data as a form of cooperation or a part of their prosecution of these new crimes. 

Thus, the question arises: Exactly how much of my information is actually private?

When determining one’s respective right to privacy, it is important to consider what “privacy” actually is. Ultimately, the scope of privacy is wide-ranging. Some may consider the term by its literal definition, where privacy is the quality or state of being apart from company or observation. Alternatively, some may conceptualize privacy a bit further and view privacy as 

a dignitary right focused on knowledge someone may or may not possess about a person. Others may not view privacy by its definition at all, but rather cement their views in the belief that a person’s private information should be free from public scrutiny and that all people have a right to be left alone. 

Regardless of one’s opinions on privacy, it is important to understand that, with respect to the U.S Constitution, you have no explicitly recognized right to privacy. 

How could that be possible?  Some may point to the First Amendment, which preserves a person’s rights of speech and assembly or perhaps the Fourth Amendment, which restricts the government’s intrusion into people’s private property and belongings. However, these amendments focus more on a specific right to privacy with respect to freedom and liberty, with the goal of limiting government interference. They do not constitute an explicit, overarching constitutional right to privacy. While the right to privacy is not specifically listed in the Constitution, the Supreme Court has recognized it as an outgrowth of protections for individual liberty. 

In Griswold v, Connecticut, the Supreme Court concluded that people have privacy rights that prevent the government from forbidding married couples from using contraception. Such a ruling first identified people’s right to independently control the most personal aspects of their lives—thus creating an implicit right to privacy. Later, the Court extended this right of privacy to include a woman’s right to have an abortion in Roe v Wade, holding that “the right of decisional privacy is based in the Constitution’s assurance that people cannot be ‘deprived of life, liberty or property, without due process of law.’” The Roe decision was largely made by the notion that the 14th Amendment contains an implicit right to privacy, as well as protects against state interference in a person’s private decisions more generally. However, the Dobbs ruling has now dismissed this precedent, with the implicit right of privacy no longer extending to abortion. With a 6-3 majority, the Court reasoned that abortion lacked due process protection, as it was not mentioned in the Constitution and was outlawed in many states at the time of the Roe decision. 

Fast forward to today—some government entities have attempted to make progress in preserving an individual’s privacy, particularly in relation to their healthcare. The Biden administration released an executive order aimed at protecting access to abortion and treatment for pregnancy complications. Additionally, the Federal Trade Commission has started to implement federal privacy rules for consumer data, citing “a need to protect people’s right to seek healthcare information.” However, most of this progress centers on a misconception that “privacy” and “data protection” are the same thing. 

So, let’s set the record straight: privacy and data protection are not the same thing. 

While data protection does stem from the right to privacy, it mainly focuses on ensuring that data has been fairly processed. With the concept of privacy constantly being intertwined with freedom and liberty over the past few decades, it can be difficult for people to fully grasp which exactly of their information is private. The Dobbs majority pointed out a distinction between privacy and liberty, citing that “as to precedent, citing a broad array of cases, the Court found support for a constitutional ‘right of personal privacy.’ But Roe conflated the right to shield information from disclosure and to make and implement important personal decisions without governmental interference.” 

There is a valid concern that personal information, ranging from instant messages and location history to third-party app usage and digital records, can end up being subpoenaed or sold to law enforcement. In response to the Dobbs decision, the U.S. Department of Health and Human Services issued a guidance that unless a state law “expressly requires” reporting on certain health conditions, the HIPAA exemption for disclosure to law enforcement would not apply. However, some people may not realize that the application privacy agreements and HIPAA medical privacy rules are not automatically protected against subpoenas. Wholeheartedly, data brokers will not hesitate to sell to the highest bidder any and all personal information they have access to. 

“So now what?” 

Ultimately, the Dobbs decision serves as a rather harsh reminder of just how valuable our privacy is, and what can happen if we lose it. As some of us have already realized, companies, governments, and even our peers are incredibly interested in our private lives. With respect to protecting reproductive freedom, it is imperative to establish federal privacy laws that protect information related to health care from being handed over to law enforcement unless doing so is absolutely necessary to avert substantial public harm. While it is unfortunate that individuals are placed in positions where they are solely responsible for protecting themselves against corporate or governmental surveillance, it is imperative for everyone to remain vigilant and aware of where their information is going.

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