WASHINGTON — Latice Fisher of Mississippi experienced a stillbirth and was charged with second-degree murder when investigators unearthed online searches on how to buy misoprostol, an abortion drug.

Celeste Burgess, a Nebraska teen, now has a felony charge on her record for disposal of a fetus after an abortion. Facebook messages between Burgess and her mother served as a linchpin in the case.

Both cases occurred before the Supreme Court’s 2022 decision to overturn Roe v. Wade.

Now, with states individually implementing a patchwork of laws restricting or permitting abortion, advocates such as Corynne McSherry, the legal director at the Electronic Frontier Foundation, a nonprofit that advocates for data privacy, worry that personal data will become yet another front in the post-Dobbs war, with those cases providing “a kind of template” for what’s to come.

With nearly a quarter of states banning or restricting abortion, McSherry said there are limited guardrails protecting data from law enforcement during an abortion investigation. “Our privacy laws, especially at the federal level, are just pathetically out of date,” McSherry said.

Even before the Supreme Court’s June 2022 Dobbs v. Jackson Women’s Health Organization decision, abortion prosecution was not a new phenomenon: According to Pregnancy Justice, there were 1,396 criminal arrests for pregnancy-related cases between Jan. 1, 2006, and June 23, 2022.

The organization defines those cases as when a pregnant person is arrested for reasons related to their pregnancy or when terms of bail, sentencing or probation are tightened because they become pregnant after being charged with an unrelated crime.

In the wake of Dobbs, said Andrew Crawford, senior counsel on privacy and data for the Center for Democracy and Technology, “I definitely think there’s potential for it to increase a lot.”

Congressional efforts

Hawaii Sen. Mazie K. Hirono and California Rep. Sara Jacobs are part of a coalition of Democrats hoping to overhaul current privacy laws to give consumers more agency over their personal data, including the right to delete their information. Together they introduced companion bills in the House and Senate that would limit the retention, collection and disclosure of personal reproductive and sexual health data by entities that are not covered by HIPAA — a privacy law that applies only to health care providers, health plans and health care clearinghouses.

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