Consumer Privacy and the Dobbs Disruption

The right to reproductive privacy is under attack in the United States, and it is losing ground. Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s 2022 decision that overruled Roe v. Wade’s constitutional protection of abortion and jeopardized privacy rights by proxy, reflects this losing posture. Scholarship in reproductive privacy varyingly critiques federal privacy initiatives, evaluates regulatory interventions, and proposes civil rights frameworks in response to Dobbs. This Article, however, pinpoints how Dobbs created a gaping hole in state consumer privacy laws even as they propagated across the United States. Currently, there are no state consumer privacy laws that specifically prohibit a company from sharing reproductive health information with government officials, law enforcement, or regulatory bodies. Thus, state laws protecting doctors’ and patients’ privacy are critical. Yet state legislatures have so far failed consumers, and some state efforts have even backfired, putting seekers and providers of reproductive healthcare—even those in states where abortion is legal—at risk for criminal prosecution.

In light of that conceptual framework, this Article proposes that state legislatures develop new privacy laws or amend existing consumer privacy laws to include three fundamental protections: (1) an explicit prohibition against disclosing reproductive healthcare information to government officials, law enforcement officers, and regulatory bodies; (2) a limited private right of action for violation of that prohibition, with a regulatory regime to target the most serious perpetrators of reproductive privacy violations; and (3) statutory damages for abusive privacy requests and nuisance litigation against providers of reproductive healthcare. Incorporating these three core elements into state privacy laws will better protect those seeking or providing legal reproductive healthcare against anti-abortion activism in a post-Dobbs United States.