REPRODUCTIVE CRIMES, DIGITAL EVIDENCE, AND THE LIMITS OF PRIVACY LAW

Document Type

Article

Publication Date

2026

Abstract

Regardless of the Supreme Court’s view that reversing Roe v. Wade returns us to the status quo ante, clearly that is an impossibility. In the decades after the decision, anti-abortion states expanded their use of criminal law to regulate reproductive activity while scholars and activists, focusing narrowly on abortion, fought a losing battle to protect women’s reproductive rights. In that fight, privacy has been a critical shield against the intrusions of the state into family life. However, it has not been enough. This Article is concerned with digital privacy and the use of data against women for reproductive activity. It argues that given the post-Roe landscape, privacy law—private and public—is inadequate in its current form and cannot be reformed or reinterpreted to protect women against a punitive and carceral state. Legal strategies succumb to the imperatives of law enforcement; therefore, the most effective solution is not a legal one but a political one: eliminating these crimes entirely. To make the case, in Part I, the Article introduces a new category of related crimes which it terms “reproductive crimes.” Taken together, these crimes, often linked to abortion and justified as protecting (unborn) children, severely constrain women’s autonomy and rights to reproductive decision making. These crimes demonstrate the extent to which criminal law has been expanded to regulate women. In Part II, the Article argues that the advances in technology that have resulted in enormous amounts of data generated by and about each user or data subject, provides more evidence for prosecution and in ways not contemplated before. The state no longer needs to physically invade the "sacred precincts of marital bedrooms" for evidence of wrongdoing. Instead, it can subpoena or buy it from tech companies and data brokers. The Article explores the use of technology, the collection of digital data that can be used as evidence, and the resulting erosions of privacy. What legal protection can be brought to bear on this problem? Current privacy law is fragmented and offers only patchwork or Swiss cheese protections. Part III analyzes the main sources of privacy protection in contracts, Constitutional law, and legislation to demonstrate their inadequacy in the face of criminalization. And in Part IV, the Article argues that reinterpreting contract law or enacting legislation is similarly insufficient to protect women’s data privacy and the use of their data in prosecutions for reproductive crimes. All these legal frameworks suffer from a Fourth Amendment exception which prioritizes security over privacy. As a result, all avenues of legal redress will likely fall short. In conclusion, the Article argues that there are two additional reasons why a reliance of data privacy law to protect women and their data is unavailing. First, by focusing on the individual, privacy experts overlook the problems of relational privacy. No woman is an island and data from family and friends can be used to infer the commission of reproductive crimes. As it stands, data privacy laws do nothing to protect one from leaks by others. Second, the Article raises the problem of law’s conception of the “human” arguing that increasingly we are distributed across technology in a way that makes tethering privacy to the corporeal person insufficient. Are we becoming our avatars and if so, does privacy law protect us? Ultimately, the Article posits that "tinkering at the margins" of privacy law is no defense against the expansion of the carceral state. Instead, it calls for a bold political shift toward the abolition of reproductive crimes altogether, arguing for the systematic scaling back of criminal law's application to family and reproductive life.

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