The overturning of Roe v. Wade, subsequent bans on abortion in many states, and explicit calls to target other rulings on the right to privacy (including Griswold, Lawrence, and Obergefell) threaten all Americans’ privacy and freedom.
As an organization, RT4 acknowledges that abortion and reproductive rights are inextricably tied to ideals of privacy, and these notions of privacy underpin many parts of the Bill of Rights. The Fourth Amendment addresses certain intrusions on people’s privacy, while Roe v. Wade read the Fourteenth Amendment’s Due Process Clause to provide a fundamental right to privacy. In the context of our notoriously hard to amend Constitution, this jurisprudential process spelled out what the Founders themselves had felt unnecessary to express, safeguarding Americans’ privacy in the sphere of our personal and family lives, and applying it rightly to more people than the Founders would have done.
Criminalizing abortion will only fuel the growth of the United States’ existing surveillance apparatus—a surveillance apparatus that touches all our lives. History has shown us that surveillance technologies are often first deployed to harass and violate the most vulnerable among us. We’ve been given many warnings from sex workers, immigrants, people of color, queer people, trans people, and women about this. Despite this, our government continues to expand its prying eyes into our lives. The Court’s decision will introduce more surveillance, suspicion, and criminalization into some of the most intimate aspects of a person’s life—their medical care.
The tools for this surveillance—third-party data requests from apps for location and period data, geofence searches, keyword searches—already exist and are being used for other crimes. Our system gives prosecutors unfettered discretion and many will greet this new age of reproductive criminalization with enthusiasm. No one will be safe from the prying eyes of the government, regardless of their identity.
We cannot stand by and simply accept such a large expansion of the surveillance state. Restore The Fourth has taken a strong opposition to data brokers and their involvement with law enforcement. We’ve urged companies to commit to protecting this data—or even better—not collecting it in the first place. We should promptly pass the Fourth Amendment is Not For Sale Act. We should stand against surveillance by USPS of people ordering Plan B through the mail. We should also stand against damage to Section 230 that would lead to internet platforms being held liable for user-generated content that helps people obtain abortion information and services. Lia Holland states in WIRED, “Section 230 is the last line of defense keeping reproductive health care support, information, and fundraising online.”
The Fourth Amendment does not protect abortion in itself. It cannot protect against searches and seizures for which there is a proper warrant, for things that ought not be crimes. Fourth Amendment-respecting statutes, like the Fourth Amendment Is Not For Sale Act, can hinder and diminish police and prosecutorial oppression.
The Fourth is not the last word on the kinds of privacy that the US government should protect. Ultimately, we look for a world where fewer, not more, aspects of human life are criminalized and where the Constitution is amended to explicitly protect the right to privacy in intimate decisions.