Lingering Fear Surrounding Data Protection of Women's Health Apps Following Overruling of Roe v Wade

Introduction

In 2022, the United States Supreme Court overturned Roe v Wade and women’s constitutional right to abortion. This judgment has had repercussions in many areas of American society, one of which is the safety of women’s healthcare trackers and concerns over use of intimate data to pursue prosecutions.

Popular apps such as Flo and Stardust, which track women’s menstrual cycles and ovulation, have attracted significant investment in recent years, and the market for female health technology (‘femtech’) start-ups is estimated to be US$36bn. Around a third of women in the UK use these apps and more than half worry about the protection of their data; a justified fear in the US where women are concerned details of their app usage could be used against them in court.

Issues surrounding data protection

Investment in femtech peaked in 2021 and has been in steady decline since then. Elizabeth Bailey, co-founder of venture capital fund RH Capital, cited the lack of transparency on data privacy as a potential explanation for why investors have stayed away from emerging femtech start-ups.

Ruba Abu-Salma, a lecturer in computer science at Kings College London, published research in May 2024 which also offers a potential explanation. Her investigation led to the discovery of ‘inconsistencies’ and ‘problematic practices’ regarding several of the most popular period-tracking and fertility apps on the UK and US app stores. There is particular concern for women in the US following recent legal developments: new policies could enable private and intimate data to be accessed in states where abortion is illegal.

It is important that user data – such as search history and personal details – is protected as the information could be used to infer an abortion or miscarriage, perhaps incorrectly.

Consequences of dobbs

Dobbs, the judgment which overturned Roe v Wade, raised concerns about the ability of law enforcement officials in the US to subpoena abortion-related data from women’s health apps.

In 2022, a social media campaign caused a significant dip in active user numbers on two of the world’s largest cycle tracker apps, Flo and Clue. Women were urged to delete these apps as there were concerns that personal data could be used by authorities to incriminate pregnant women seeking to have an abortion.

In response, many apps have since increased their privacy credentials as a key selling point to investors and consumers. In 2023, Clue changed its marketing to emphasise that, as a German-headquartered company, it is subject to strict EU privacy regulations. Simultaneously, Flo accelerated the launch of its ‘anonymous’ mode which allows use of the app without linking data to people’s names.

Urksa Srsen, co-founder of women’s health company Bellabeat, expressed concerns around Dobbs’ lack of clarity about the court’s rights regarding access to personal data, saying “we have to behave as if this could mean that data could be forced from us by the US courts”. They have therefore rolled out a private key encryption feature meaning any personal data stored on Bellabeat servers would be unreadable.

Conclusion

Conflicting opinions and laws between US states indicates that the divisive debate of abortion rights is expanding. Lawmakers in states where abortion is illegal appear to be aiming to increase prosecutions by extrapolating sensitive data from women’s health apps. In response to this trend, owners and investors in femtech are eager to ensure user data is protected from this data harvesting practice, else it would jeopardise their services.

Given the intrinsic value of personal data in the modern global market, the right regulations need to be put into place, and enforced, to defend women’s rights.

By Molly McCreary