In 2022, the Dobbs decision stripped the guaranteed right to abortion nationwide and triggered a patchwork of abortion bans and restrictions to available reproductive care almost overnight, resulting in predictable, preventable, and tragic consequences. With the criminalization of abortion, the surveillance state is poised to take a leading role in enforcing these bans. As it has throughout American history, this surveillance will disproportionately target Black, Indigenous, and people of color, with devastating results.
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A Patchwork of Laws
Since Dobbs, the floodgates have opened new lines of attack on rights that are now criminalized. This opens the door to surveillance abuses by state governments and perhaps the federal government under an authoritarian administration seeking to enforce these new laws.
As we’ve written before, the surveillance state constructed in the years following 9/11 has powerful tools at its disposal. The terrifying specter of abortion surveillance is not science fiction: A plethora of advanced technology could make this a reality. The tools of the surveillance state have already been turned on abortion and reproductive care seekers to prosecute people under many of these laws. In 2023 in Nebraska, a mother and daughter were convicted on charges related to an illegal abortion, and private messages from Facebook were key to the case. In another shocking instance, in 2019 the Missouri Health Department admitted that it maintained a spreadsheet of Planned Parenthood abortion patients.
While some governments may seek to protect healthcare data from surveillance — the Biden administration has sought to do so by regulation — state or local law enforcement agencies have tools at their disposal to circumvent those privacy rules. Automated license plate readers and facial recognition technology allow for tracking people’s locations. Internet search histories are also a major source of information. With data collected by cell phone apps, as we saw earlier in 2024, the data broker loophole allows law enforcement agencies to purchase this information instead of obtaining a warrant. All of these tools are at the fingertips of state, local, and federal law enforcement. And any or all of them could be used to monitor, identify, and prosecute individuals seeking or providing abortion or other criminalized reproductive care.
“As we saw earlier in 2024, the data broker loophole allows law enforcement agencies to purchase this information instead of obtaining a warrant.”
Cell phone location tracking, for example, is a seemingly benign tool for any of us seeking directions, tracking our health, or posting on social media, among other things. To law enforcement, however, it is an exceptionally powerful tool that can be used to pinpoint travel patterns and identify familial and personal connections. Facial recognition technology, paired with location data from the apps you use, your internet search history, or online medication purchases, could also place you at various locations as you try to leave a state hostile to abortion or seek care in previously safe spaces within that state.
A recent report by 404 Media gave readers a detailed view into how this could operate in practice. Several media organizations were able to view a demonstration of the tracking tool, called Locate X, and saw how movements to and from abortion clinics and other frequently visited locations could be monitored.
This technology does not just threaten the rights of people in states criminalizing abortion. If a state doesn’t have a prohibition against selling location data, or protecting sensitive locations such as abortion clinics, law enforcement from another jurisdiction could see who is traveling to certain health clinics across state lines or accessing other resources.
In 2023, POGO published an investigation into the use of surveillance technology to enforce anti-trans laws, tracing how many of these state laws threaten data privacy and exposure of sensitive medical records.
Disparity and Death
Before the criminalization of abortion, the United States alreadyhad the highest rate of maternal mortality among high income nations, and experts say these bans will raise that rate. According to the CDC, more than 80% of all American pregnancy-related deaths are preventable.
The maternal mortality rate is most egregious and appalling among Black people: In 2021, it was 69.9 per 100,000 live births. Meanwhile, the poor obstetric care available to Black patients is a contributing factor in the highest rates of preterm birth among all racial demographics in the country.
Bans on health care in a world that already disproportionately surveils Black, Indigenous, and people of color will be particularly catastrophic for Black parents.
A recent illustration of the devastating union between maternal mortality and Dobbs is the preventable death of Amber Nicole Thurman. According to records obtained by ProPublica, Thurman traveled from her home state of Georgia to North Carolina to receive legal abortion care. After returning home and suffering from a rare complication, Thurman sought care at a local hospital in Georgia. Despite cascading system failures due to acute severe sepsis, staff who were treating her did not provide a dilation and curettage (D&C) until it was too late to save her life. Doctors knew that she received a medical abortion. The last words of the 28-year-old mother and medical assistant, who planned to return to school and had her entire life ahead of her: “Promise me you’ll take care of my son.”
“Just as the health care system has pervasive disparate outcomes along racial and ethnic lines, the tools of surveillance are applied unevenly.”
It’s not just hospitals that are afraid of providing care. Candi Miller was a Black Georgia mother of three who suffered and died at home because she was worried about being prosecuted for trying to end a pregnancy that she was told could kill her. Despite enduring unfathomable pain, the fear of prosecution led to her death. A state committee of experts on maternal health determined that her death was “preventable,” and in anonymous discussions with ProPublica, some members blamed the state’s abortion ban.
As states attempt to block protections for individuals seeking care in neighboring states that still have access to abortion, the horrifying consequences are only starting to reveal themselves.
Just as the health care system has pervasive disparate outcomes along racial and ethnic lines, the tools of surveillance are applied unevenly. As we’ve pointed out, the targets of surveillance in America have often been people of color. In a variety of contexts, people of color are disproportionately surveilled, detained, and incarcerated.
In Texas, the ACLU has reported on the chilling effect of surveillance and abortion bans among undocumented immigrants and mixed-status families. According to Lucie Arvallo, the executive director of Jane’s Due Process, an organization that “helps young people in Texas navigate parental consent laws and abortion bans to confidentially access abortion and birth control,” some of the individuals they speak to are afraid to travel to a clinic to receive birth control or out of state for abortion care out of fear of immigration questioning or being stopped at one of the numerous U.S. Customs and Border Protection checkpoints in Texas, which often include surveillance towers and drones.
“This is the enforcement reality for people who seek abortion care in any state: fear that police could take your freedom at any moment, and now could stop you before, after, or even at the hospital.”
Texas is already experiencing a significant increase in maternal mortality in the time period since Texas adopted a more hostile stance toward abortion, culminating in its abortion ban: An analysis of the state shows that between 2019 and 2022, a period including the enactment of the state’s ban on abortion after six weeks of pregnancy, pregnancy deaths rose by 56% in Texas — compared with 11% nationwide.
This is the enforcement reality for people who seek abortion care in any state: fear that police could take your freedom at any moment, and now could stop you before, after, or even at the hospital, or that law enforcement will use surveillance tools to track you if you seek care in a state where abortion access is protected. It is people of color who suffer most from surveillance, it is Black people who suffer most from lack of adequate maternal health care, and thus it will be Black, Indigenous, and people of color who bear the brunt of enforcement of laws that prevent them for getting what can be life-saving care.
Surveillance has a chilling effect, and those consequences become deadly when it prevents someone’s ability or willingness to seek or receive life-saving care. In the post-Dobbs world, where our government is cracking down on bodily autonomy, where Black lives are expendable and preventable deaths are acceptable, the surveillance state is already building on its foundation of maintaining control.
Thank you to Lloyd Lyall, POGO Legal Fellow, for his research assistance on this project.
