Data Privacy in a Post-Roe World: Considerations for Health Tech Companies
With the changing legal environment surrounding abortion, it’s crucial for health technology companies and healthcare professionals to ensure compliance with the law while safeguarding patients’ rights and privacy.
In a highly publicized legal case, Dobbs v. Jackson, the U.S. Supreme Court made a significant decision overturning the longstanding Roe v. Wade ruling. The Roe v. Wade decision had safeguarded the right to abortion for almost half a century, citing the Constitution’s right to privacy. However, the Dobbs ruling has cast doubts on this right to privacy. This ruling has far-reaching consequences, including potential government intrusion into private communications and apps. These changes raise concerns about the privacy of sensitive health data stored in apps and private discussions related to health matters.
Challenges to Privacy Amid Evolving Abortion Laws
Some states have already enacted laws that criminalize abortion, while others are considering prosecuting individuals who travel across state lines to obtain abortions. This uncertainty impacts health technology companies and practitioners who want to avoid risk. Questions arise about the availability of products like Plan B in local pharmacies, the distribution of abortion pills through mail-order pharmacies, and the online dissemination of information about abortion. Notably, the privacy of conversations on these subjects is also in question.
The Concept of Privacy in a Changing Landscape
Even before the Dobbs ruling, concerns about mass data collection and government access to private information had been growing. Technology companies often claim they will protect user data, but that they will also comply with data requests when local laws demand it. This practice has raised concerns among users who believe companies wield too much power. In 2022, Facebook made headlines by sharing communications between a mother and daughter regarding abortion with law enforcement.
Immediate Effects of the Dobbs Decision
The Dobbs ruling immediately rendered abortion illegal or restricted in states with “trigger laws.” This created a varied legal landscape across the country, with some states tightening restrictions on abortion while others expanded access. This diversity of laws poses challenges for organizations operating on a national scale, as they must navigate differing privacy regulations.
Balancing Law Enforcement and Data Privacy
The Dobbs decision prompts questions about how law enforcement officials and courts will use private user data linked to abortion cases. Will courts allow this data as evidence in criminal prosecutions related to abortion? Could tech companies face legal consequences for refusing data requests? Additionally, users might wonder if they can take action against tech companies that violate their own privacy policies by disclosing data.
Law enforcement can seek data for specific individuals or groups. Tech companies have historically resisted broad data collection efforts more than targeted requests tied to particular incidents.
Government agencies have found ways to purchase personal data through third-party intermediaries, even bypassing some legal safeguards. A bill called “The Fourth Amendment is Not for Sale Act” aims to counteract this practice. But as the bill makes its way through the U.S. Congress, much personal data remains available on the market.
Navigating Medical Data and Privacy Concerns
Apart from non-medical data, medical records could also be targeted. Although the Health Insurance Portability and Accountability Act (HIPAA) restricts medical information sharing in many situations, it doesn’t always prevent data sharing with law enforcement.
President Biden and the U.S. Department of Health and Human Services (HHS) attempted to address this issue, issuing guidance that specifically outlined when the HIPAA Privacy Rule allows for the sharing of information without an individual’s consent. This guidance clarified that such disclosure is only allowed in limited situations where it is explicitly authorized by the Privacy Rule or mandated by law. These situations include instances where information sharing is necessary for law enforcement purposes or to prevent a significant threat to an individual’s health or safety. Unfortunately, ambiguity remains about the definition of “law enforcement purposes.”
Broader Implications and Tech Companies’ Responses
While the focus is often on individuals seeking abortions, anyone facing health-related issues might face similar privacy challenges. The Dobbs decision may pave the way for more rollbacks of personal privacy protections. Health tech companies could minimize data collection to avoid government data requests. Apple’s approach demonstrates how limited data storage can help protect privacy.
The Ongoing Battle for Data Privacy
The Dobbs case highlights the ongoing struggle for data privacy rights in general. Urgent action is needed to establish national data protection laws that curb bulk data requests by the government. Meanwhile, individuals should carefully read privacy policies and terms of service for apps they use. Organizations such as the Digital Defense Fund offer recommendations for safeguarding sensitive information about abortion care.
In the evolving landscape of privacy rights and data protection, the Dobbs v. Jackson decision adds new dimensions to the ongoing conversation. The implications for individuals seeking abortions and broader personal privacy considerations require thoughtful attention as society navigates these changes.
Get Legal Support
Healthcare practice owners facing uncertainties in the post-Dobbs landscape should seek guidance from experienced healthcare attorneys. With the changing legal environment surrounding abortion, it’s crucial for health technology companies and healthcare professionals to ensure compliance with the law while safeguarding patients’ rights and privacy.
Consulting a knowledgeable attorney can help providers address a range of legal matters, including drafting End User License Agreements (EULAs) that outline the terms of app usage, establishing website terms and conditions that align with privacy regulations, and refining HIPAA policies and procedures to meet evolving standards.
Moreover, healthcare attorneys can offer guidance on reinforcing corporate formalities, which can be pivotal in protecting owners and stakeholders from potential lawsuits or legal complications. An attorney’s advice can also prove invaluable in appropriately responding to law enforcement requests for patient records. By thoroughly understanding the legal nuances and intricacies, health tech companies and healthcare providers can navigate these challenges with confidence, ensuring both patient care and legal compliance.
If you operate in one of the states where we have licensed attorneys, you can schedule a complimentary phone consultation with one of Jackson LLP’s healthcare attorneys to learn if we are a good fit for your needs.
This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.