Americans’ privacy threatened by Supreme Court’s draft Roe decision, experts say

A fundamental American right is on the chopping block.

The news that the Supreme Court is poised to overturn Roe v. Wade, first reported by Politico, hit the political landscape like a lightning bolt this week — potentially shattering almost fifty years of settled law in the process. And while the public’s immediate reaction to the news understandably focused on what such a reversal would mean for the right to abortion, experts warn that the Court’s looming decision presages yet another attack on a sacrosanct American right: the right to privacy.

While perhaps seemingly unconnected at first glance, the two rights — the right to an abortion, and the right to privacy — are connected in U.S. law. That’s because the right to abortion, according to the 1973 Roe v. Wade ruling, stems from the right to privacy guaranteed by the Fourteenth Amendment’s due process clause.

According to experts who spoke with Mashable, the Court’s willingness to toss one bodes ill for what many Americans’ consider to be their basic right to privacy in their own homes.

So warned Albert Fox Cahn, the executive director of the Surveillance Technology Oversight Project, a non-profit advocacy organization working to highlight the discriminatory impacts of surveillance, when speaking about the arguments made in the Supreme Court’s leaked draft decision.

“If this reasoning were adopted, it would not only reverse a half century of abortion rights, but it would undermine the Constitution’s long-recognized right to privacy, which has played a role in protecting everything from the right to contraceptives to the right to same-sex marriage,” he explained over email. “While the draft opinion does not explicitly strike down the right to privacy, it shows a conservative majority that is deeply skeptical of the concept.”

Cahn and S.T.O.P. are not alone in their concern for Americans’ privacy after getting a look at the leaked draft.

If/When/How, an advocacy organization working to ensure “all people have the power to determine if, when, and how to define, create, and sustain families with dignity,” according to its website, is deeply aware of the connection between privacy and the right to abortion.

“One of many alarming aspects of the draft decision leaked last night is that it jettisons the concept that the right to privacy encompasses intimate decisions about how we live our lives unless it can be proven that the ability to make these decisions was legally protected at the time the relevant provision of the Constitution was written,” Farah Diaz-Tello, the senior counsel and legal director of If/When/How explained Tuesday.

The potential erosion of privacy protections at a legal level in a post Roe v. Wade world, if that is indeed where we are headed, is extra troubling because privacy for the average person has long been under assault. Recent technological innovation that has made life more convenient has also allowed our devices and services to know deeply personal things about us. From the seemingly mundane daily invasions of the apps on our smartphones and the smart cars we drive, to the more serious and profound privacy threats powered by all-encompassing location data collection, privacy is quickly becoming a thing of the past.

As the Washington Post reported Wednesday, the data generated by smartphone movements, Google searches, and social media activity is potentially enough to determine with some certainty whether or not a person has had an abortion. And at least some of that data is for sale.

In light of the Supreme Court’s draft decision, Jackie Singh, former senior cybersecurity staffer on the Biden presidential campaign, explained that the issues thrust into the spotlight by Monday’s leak of the draft decision are more pressing than ever.

“The wanton spying on our activities and whereabouts by technology companies and governments alike must be stopped to prevent devastating outcomes, such as the hacking or purchasing of location data to attempt to recover bounty prizes for snitching on girls and women who are only trying to save their own lives.”

The Electronic Frontier Foundation, a non-profit defending digital privacy, is very much aware of the technical privacy challenges already faced by people seeking abortions. Hayley Tsukayama, an EFF senior legislative activist, explained over email that the EFF supports the digital rights of people seeking abortions — and emphasized that those rights include digital privacy.

“The introduction of bills in several states seeking to limit abortion rights, even before this draft was leaked, has raised serious concerns for our organization about the ways that data and digital information can be used to limit those rights,” Tsukayama said.

Notably, the many experts we spoke with agreed that the threat to Americans’ privacy-derived rights is not limited solely to the right to abortion.

“This is not only troubling for people’s ability to self-determine their reproductive lives by self-managing an abortion without punishment, it’s troubling for all aspects of their sexual and reproductive lives,” Diaz-Tello, of If/When/How, warned. “Contraception, consensual same-sex conduct, interracial marriage, and same-sex marriage are all within the sweep of what the Supreme Court is calling into question.”

While it’s unclear what, exactly, comes next — Chief Justice John Roberts insisted that the authentic leaked draft document is not final — privacy and legal experts see a dangerous and regressive path ahead.

“Left unchecked, this partisan re-casting of the Constitution will leave us with fewer and fewer rights, our most intimate decisions subject to veto by Congress and state legislatures,” Cahn, S.T.O.P.’s executive director, cautioned in part. “This is a moment when democratic governments around the world are placing new emphasis on privacy protections, but where the U.S. is sadly going in exactly the wrong direction.”

If the Supreme Court draft decision remains largely unchanged, that wrong direction will lead to a place unfamiliar to Americans who, in a post-Roe world, have become accustomed to the basic right to privacy in their own home. A place that, if experts’ predictions come to bear, embraces the technological invasiveness we’ve come to accept from the likes of data brokers and online trackers as only the first step down a progressively darker path.