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United States: Digital Payments and Bodily Autonomy after Roe

Categories : Cash covers a broad range of transactions, Cash is available to all users, Cash protects privacy and anonymity
July 4, 2022
Tags : Access to cash, Digital payments, Privacy and anonymity, Trust, US
After the U.S. Supreme Court struck down Roe v. Wade, state authorities could start using digital payments data to prosecute women seeking abortions.
Manuel A. Bautista-González

Ph.D. in U.S. History, Columbia University in the City of New York

Post-Doctoral Researcher in Global Correspondent Banking, 1870-2000 – Mexico and South America, University of Oxford

This post is also available in: Spanish

All those women having jobs: hard to imagine, now, but thousands of them had jobs, millions. It was considered the normal thing. Now it’s like remembering the paper money when they still had that. My mother kept some of it, pasted into her scrapbook along with the early photos. It was obsolete by then, you couldn’t buy anything with it. Pieces of paper, thickish, greasy to the touch, green-colored, with pictures on each side, some old man in a wig and on the other side a pyramid with an eye above it. It said In God We Trust. My mother said people used to have signs beside their cash registers, for a joke: In God We Trust, All Others Pay Cash. That would be blasphemy now. You had to take those pieces of paper with you when you went shopping, though by the time I was nine or ten most people used plastic cards. Not for the groceries though, that came later. It seems so primitive, totemistic even, like cowry shells. I must have used that kind of money myself, a little, before everything went on the Compubank. – Margaret Atwood, The Handmaid’s Tale, 173.

A Legal Patchwork Across U.S. States

Last Friday, June 24, the Supreme Court of the United States (SCOTUS) overturned Roe v. Wade, the 1973 case that guaranteed the constitutional right to abortion. Now, states will determine whether abortion is legal, restricted, or banned. Thus, the United States has joined Poland, El Salvador and Nicaragua as the only countries that have restricted abortion since 1994, according to the Center for Reproductive Rights.

Thirteen states had “trigger laws” making abortion illegal as soon as Roe fell. Shortly after the decision, Alabama, Arkansas, Louisiana, Kentucky, Missouri, South Dakota, and Utah banned all abortions. Abortion clinics closed in Texas and Wisconsin; they had all been closed since May in Oklahoma. According to the Center for Reproductive Rights and the Guttmacher Institute, about half of all U.S. states are likely to ban abortions in the coming months, with penalties including jail time and fines.

Although prosecutors are not currently targeting women and child-bearing persons traveling to seek abortions out-of-state, that could change very soon. “There is no guarantee that an aggressive prosecutor might try to stretch the law as much as they can. [… They] will go after the people that help the woman get the abortion. The person who drives them, the doctor who sees them,” said David Cohen, a law professor at Drexel University.

Providing financial support to people seeking abortions will create legal exposure across state lines. However, prosecutions would likely violate the constitutional right to interstate travel, according to Lucinda M. Finley, professor of law at the State University of New York at Buffalo.

Digital Philanthropy Arrested? The Case of Abortion Funds

“The First Amendment protects the right of abortion funds to seek contributions and to make contributions to individuals in states where abortion is illegal [… It] also protects the right of people to make donations to abortion funds.” – Lucinda M. Finley, professor of law at the State University of New York at Buffalo.

Throughout the year, donations have flooded into abortion clinics and funds as it became clear that the Conservative SCOTUS majority would likely end the constitutional right to abortion. Abortion funds are community-based organizations helping people seeking abortions to defray costs such as medical fees, transportation, temporary housing and child care.

Contributions jumped after Politico published a leaked draft ruling in May and skyrocketed after SCOTUS overturned Roe v. Wade last Friday. However, the traceability of donations made with payment cards and apps can freeze contributions and jeopardize abortion funds’ capabilities.

In Texas, abortion funds have faced suits for aiding or abetting “post-heartbeat abortions in violation of the Texas Heartbeat Act.” That act allows anyone to sue any person facilitating an abortion after six weeks of pregnancy. “It should be a terrifying reality check for people. If they got the donor list, there would be nothing to stop them from suing every single person on it,” said Jennifer Ecklund, an attorney for the Lilith Fund and the Texas Equal Access Funds.

Shortly after the SCOTUS published its ruling in Dobbs v. Jackson Women’s Health Organization, abortion funds in Texas and Oklahoma paused disbursements to assess their legal exposure. Donating to abortion funds should remain legally protected by the First Amendment, provided SCOTUS is consistent with judicial precedents.

Surveillance Capitalism 

“In the states where abortion has been or will soon be banned, any pregnancy loss past an early cutoff can now potentially be investigated as a crime. Search histories, browsing histories, text messages, location data, payment data, information from period-tracking apps—prosecutors can examine all of it if they believe that the loss of a pregnancy may have been deliberate. Even if prosecutors fail to prove that an abortion took place, those who are investigated will be punished by the process, liable for whatever might be found.” – Jia Tolentino, The New Yorker

Reproductive rights and digital privacy activists have already raised the alarm about period apps helping users track their menstrual cycles, as prosecutors could use that data as evidence in states banning abortions. Digital payments present a problem, too, as they could become evidence for law enforcement.

Payment apps such as Paypal’s Venmo and Square’s Ca$h App and digital wallets, including Apple Pay and Google Pay, track information regarding the payer, the payee, the payment amount, and the users’ transaction labels.

By default, most apps share users’ transactions publicly (minus the amounts) in their newsfeeds. “The purchase of a pregnancy test on an app where financial history is public is probably the biggest red flag,” said Amie Stephanovich, vice president of U.S. policy at the Future of Privacy Forum, a data privacy non-profit.

Cash Protects Privacy

A patient refused to leave the Houston Women’s Clinic shortly after the largest abortion provider in Texas suspended operations the same day SCOTUS overturned Roe. “Please help me,” she said, offering cash in exchange for abortion pills. “We can’t do it. It’s against the law,” said Ivy, 56, the clinic’s supervisor. The woman begged her, saying no one would know. “Your husband has to take you to another state. Abortion is not legal,” replied Ivy sternly.

Abortion bans and restrictions “will cover everything, whether you pay with cash or crypto,” said Rachel Rebouché, the interim dean at the Temple University Beasley School of Law. Although paying for abortion care with cash, electronic money transfers, and prepaid cards might help avoid detection, “the amount of residual information that can be used to reveal health status and pregnancy status is fairly significant,” said Amie Stephanovich.

Prosecutors could also gather evidence from retailers’ loyalty programs or apps’ location tracking when women make cash purchases. Google said it would erase location data showing users’ visits to abortion clinics, following concerns that law enforcement could use digital trails to prosecute women. But how many other apps use location tracking?

This post is also available in: Spanish