DIGITAL PRIVACY FOR REPRODUCTIVE CHOICE IN THE POST-ROE ERA

The overruling of Roe v. Wade has unleashed a torrent of regulatory and punitive activity restricting previously lawful reproductive options. But the turn to the expansive criminal law and new schemes of civil liability creates novel concerns, quite distinct from the pre-Roe landscape a half-century ago. Reproductive choice, and its nemesis, turn upon information. For pregnant people, deciding on a choice of medical care entails a search for advice and services. Information is at a pre-mium for them. Meanwhile, efforts to regulate abortion began with clinic closings. But they will quickly extend to civil actions and criminal indictments of patients, providers, and those who facilitate abortions. Like the pregnant themselves, crim-inal and civil enforcers depend on information. And in the contemporary context, the informational landscape, and hence access to counseling and services such as medication abortion, is largely mediated through digital forms of communication. In an era when most people use search engines or social media to access informa-tion, the digital architecture and data retention policies of those platforms will determine not only whether the pregnant can access medically accurate advice but also whether the act of seeking health information places them in legal peril.This Article offers an in-depth analysis of the core legal issues concerning abortion-related digital privacy after the end of Roe. It demonstrates first that digital privacy for pregnant persons in the United States has suddenly become a tremendously fraught and complex question. It then maps the treacherous social, legal, and eco-nomic terrain upon which firms, individuals, and states will make privacy-related decisions. Building on this political economy, we develop a set of moral and eco-nomic arguments to the effect that digital firms should maximize digital privacy for pregnant persons within the scope of the law and should actively resist states' efforts to conscript them into a war on reproductive choice. We then lay out precise, tan-gible steps that firms should take to enact this active resistance. We explore here in particular a range of powerful yet legal options for firms to refuse cooperation with restriction-focused criminal and civil investigations. Finally, we present an original, concrete and immediately actionable proposal for federal and state legislative inter-vention: a statutory evidentiary privilege to shield abortion-relevant data from war-rants, subpoenas, court orders, and judicial proceedings aimed at limiting the availability of reproductive care.