This op-ed first appeared in Florida Today.
Pandora's box. That is what the U.S. Supreme Court opened when it overturned its 1973 decision in Roe vs. Wade and abolished the federal right to abortion.
The Court's decision almost 50 years ago was based on an individual's right to privacy in making decisions about their own body, including the need to have an abortion. In 1980, Florida voters codified the right to privacy in our own state constitution. It states that every Floridian “be let alone and free from governmental intrusion into the person’s private life.” Florida's Supreme Court determined that this right to privacy included the right to abortion, saying "[w]e can conceive of few more personal or private decisions...."
Despite this, the State of Florida is asking the Florida Supreme Court to rule that the constitution’s right to privacy does not protect the decision to end a pregnancy. In anticipation of Roe being overturned, Gov. Ron DeSantis signed a bill banning abortion in Florida after 15 weeks of pregnancy. And now there is talk that the governor and allies in the Legislature plan to make abortion illegal after six weeks, before many even know they’re pregnant.
What will happen to you and those you care about? Now that abortion has been criminalized in more circumstances, you can expect law enforcement to increase its unconscionable intrusion on our most personal decisions. And if the state is willing to violate a person's right to make medical decisions for themselves, in what other contexts could Floridians see assaults on our right to privacy?
Associate Justice Clarence Thomas, who voted with the majority to overturn Roe, gave us an inkling in his concurring opinion of what may be coming. He said the logic used to strike down Roe dictates that the rights to contraception, intimate relationships, and marriage equality also be reconsidered. Other justices voting in the majority purported to disagree, but the three more liberal justices in the minority warned that "no one should be confident that this majority is done with its work."
Since both Roe and Florida's privacy right became law, the world has changed in crucial ways. One pivotal difference is the invention and proliferation of digital communication. Along with the saturation of our society by email, texts, and social media, what has grown dramatically is the invasion of our privacy and the augmented capacity of the state and commercial interests to access our private data and communications.
Laws that criminalize reproductive health care are already being used by police and prosecutors to surveil and penalize pregnant people.
According to the organization National Advocates for Pregnant Women, over the past 15 years there has been a significant spike in arrests and prosecutions for crimes related to stillbirths, miscarriages, and alleged drug and alcohol use during pregnancy. Of the 1,600 people prosecuted nationwide for these offenses since the 1973 Roe decision, 1,200 were charged after 2006, demonstrating an increased willingness to target pregnant people. Those targeted were disproportionately women of color.
In some cases, police have invaded private digital communications to gather evidence. In 2015, an Asian woman in Indiana was convicted after police found texts on her phone in which she discussed purchasing pills to induce an abortion. In 2017, a Black Mississippi woman was charged with second-degree murder after a stillbirth and police found a search for similar pills on her phone.
According to the organization National Advocates for Pregnant Women, over the past 15 years there has been a significant spike in arrests and prosecutions for crimes related to stillbirths, miscarriages, and alleged drug and alcohol use during pregnancy. Of the 1,600 people prosecuted nationwide for these offenses since the 1973 Roe decision, 1,200 were charged after 2006, demonstrating an increased willingness to target pregnant people. Those targeted were disproportionately women of color.
In some cases, police have invaded private digital communications to gather evidence. In 2015, an Asian woman in Indiana was convicted after police found texts on her phone in which she discussed purchasing pills to induce an abortion. In 2017, a Black Mississippi woman was charged with second-degree murder after a stillbirth and police found a search for similar pills on her phone.
The American Civil Liberties Union (ACLU) is working across the nation to introduce state legislation to prevent law enforcement from making overly broad requests to try to identify everyone who visited a particular location–such as an abortion clinic–or searched online for particular keywords–such as "abortion care."
But we should all be worried. In many cases, the government can obtain extremely detailed information from corporations about people’s finances, internet use, and communications without ever going to a judge, and without a shred of evidence to show someone is involved in criminal activity. When police are armed with court orders, virtually none of the information collected by those corporations is off limits to the government.
In 1980, Florida made a commitment to the privacy of its citizens. We are not just at a crucial moment for reproductive rights in our state but at a crucial juncture for the protection of our right to privacy.
Everyone should have the freedom to make private medical decisions for themselves, without political interference. Taking away the privacy rights of pregnant people has put an increased danger on the privacy rights of us all. Vote your values on November 8.
Tiffani Lennon is the executive director of the ACLU of Florida
