Intimate Privacy in a Post-Roe World

Abstract

Now that the Supreme Court has revoked the constitutional right to reproductive autonomy, we must reckon with the risks that our surveillance economy presents. Individuals, companies, and governments have access to, and information about, every detail of our intimate lives, including where we go (clinics, hospitals), whether we have a health condition (pregnancy), what we search, read, and purchase (abortion pills), and what we communicate (texts, emails). That information is being wielded against pregnant individuals, people helping them obtain abortions, and health care workers. Intimate information is being exploited to support criminal and civil liability, to empower domestic abusers, and to fuel harassment. Health care workers are using intimate data against patients, undermining the trust necessary for medical assistance, and increasing the odds that patients will seek dangerous alternatives. Love and community are on the line as well.

We did not need more reasons to protect intimate privacy; the stakes were clear before the Supreme Court overruled Roe. But no matter, the time is now to act. This Article builds on my theory of intimate privacy as a civil right and lays out core commitments that lawmakers should adopt to protect intimate privacy. It highlights steps taken by the Federal Trade Commission and state attorneys general to set norms around the handling of intimate data and encourages more of it. Then, it turns to reform proposals, using current legislative proposals as a guide and point of comparison.