The reversal of Roe v. Wade prompted a Biden Administration executive order that may close holes in the U.S. data ecosystem regarding reproductive services but will likely not affect whether private entities hand data over to state and local officials.
Last week, President Joe Biden signed “Executive Order on Protecting Access to Reproductive Healthcare Services” which he explained as “an executive order I’m signing to protect reproductive rights of women in the aftermath of the Supreme Court’s terrible, extreme, and, I think, so totally wrongheaded decision to overturn Roe v. Wade.” The Biden Administration may succeed in pushing entities that collect health information to stop voluntarily turning over such data to other entities. And yet, the executive order (EO) is not likely to prevent state law enforcement agencies from accessing information in the course of investigations of alleged violations of abortion bans.
In the wake of Dobbs v. Jackson Women's Health Organization, in which the Supreme Court of the United States overturned long settled precedent on abortion rights, the Biden Administration prepared and issued an executive order designed to address likely state action to restrict reproductive rights. Among other steps, the President unveiled a list of actions “[t]o address the potential threat to patient privacy caused by the transfer and sale of sensitive health-related data and by digital surveillance related to reproductive healthcare services, and to protect people seeking reproductive health services from fraudulent schemes or deceptive practices.”
First, the White House politely asked the U.S. Federal Trade Commission (FTC) to “consider actions, as appropriate and consistent with applicable law (including the Federal Trade Commission Act, 15 U.S.C. 41 et seq.), to protect consumers’ privacy when seeking information about and provision of reproductive healthcare services.” Of course, FTC Chair Lina Khan and the FTC are independent from the administration and could decline to accede to this request as happened when Khan’s predecessor, Joe Simons, chose not to act upon former President Donald Trump’s EO on social media. Having said that, Khan is likely far more receptive to this request than Simons was, and her agency will probably investigate ways that Section 5 of the FTC Act may be used to protect the privacy and data of women seeking reproductive services.