As state abortion bans snap into effect after the Supreme Court’s decision in Dobbs vs. Jackson Women’s Health Organization, one group who will be most affected seems to be least discussed: women under criminal court control.
For these women — the vast majority of whom are poor and disproportionally Black or Latina — state surveillance and control of their bodies are not new. Women in prison and jails are often shackled during childbirth, forcefully separated from their children, violently searched and denied basic medical care.
Dobbs makes things worse. An estimated 58,000 pregnant women enter prisons and jails each year. For incarcerated women, obtaining an abortion and access to reproductive healthcare was already nearly impossible, despite several court decisions upholding the right of people in prison to access abortion. In antiabortion states, of course, it is now completely impossible. This is also true of women sentenced in federal court, and in Washington, D.C., who may be sent to a federal prison in an antiabortion state.
But it’s not just women in prisons and jails. On any given day, millions of women on probation, parole and pretrial release are subject to myriad forms of state surveillance and control. Thousands of women wear GPS-equipped ankle monitors that track their location 24/7. This surveillance also often entails warrantless searches of cellphones, including of text messages, social media and web browsing history. Some ankle monitors also include two-way audio functions that allow supervising agents to listen in on any conversations. This surveillance allows government officials to monitor, listen and read all communication, including with doctors, pharmacists and others.
Women on court supervision or monitors are often not permitted to leave their home or change their schedules without prior permission. A trip to the doctor, a prenatal appointment or a pharmacy depends on the approval of a government official, which may not be timely or may never come. Women on court supervision are also almost always prevented from leaving the state. Any unapproved trip out of the house, or state, can result in more jail or prison time. For women on court supervision in states with abortion bans, accessing abortions without government detection is not possible.
These carceral surveillance methods — all standard features of criminal court supervision and pretrial release — can be deployed not just to surveil women’s reproductive health, but also to prosecute new “criminal acts,” i.e., illegal abortions, or other behavior that might be viewed as a threat to the fetus. This is not conjecture: Police regularly use geolocation data gathered from GPS-equipped ankle monitors to investigate potential crimes without a warrant.
As states criminalize abortions and offer bounties to people who identify those who help women obtain abortions, the digital trail of women on court supervision will be especially easy for police and prosecutors to detect, follow and use in criminal prosecutions. For example, a woman who becomes pregnant shortly after being ordered to wear an electronic ankle monitor for several months could easily be prosecuted if she visits a women’s health clinic or tries to leave the state to obtain an abortion — and her geolocation data trail could also be used to build a prosecution against her doctor or Lyft driver. While Google has pledged to delete geolocation data reflecting visits to abortion clinics, women forced to wear ankle monitors will not benefit.
Private surveillance companies operate the GPS tracking devices and, increasingly, cellphone tracking devices. Carceral surveillance technology is a big — and growing — business with few limits on what these companies do with the private data they collect. By the terms of their contract, these companies regularly hand over extensive geolocation data to the courts, police and government agencies.
While all women’s privacy is threatened post-Dobbs, the decision will be felt acutely and immediately by low-income women of color already subject to criminal court control. To be sure, these concerns are not limited to women in the criminal legal system. Women in immigration proceedings and juvenile court are also subject to electronic surveillance and incarceration. For all these women, state surveillance has long undermined — if not outright eliminated — bodily autonomy, reproductive freedom, and privacy.
As Congress, state legislatures and Big Tech are rightly called on to codify Roe and protect privacy, the interests of women already subject to state surveillance cannot be ignored. Privacy has never been equally distributed among women in the United States, and any legislative or regulatory response to Dobbs must account for this reality.
The root problem is larger than unequal access to abortions or privacy. The failure of the Dobbs opinion to consider the impact on women’s lives is no anomaly. Women in the criminal legal system, especially poor women, rural women and women of color, have long been ignored and blamed for their own predicaments. As a result, the carceral state continues to expand through new means — like electronic monitoring of people in the criminal, juvenile and immigration systems. And this monitoring allows for the perfect detection and prosecution of illegal abortions and other related crimes.
This dire outcome, however, is not inevitable. Learning from the lived experiences and voices of these women should serve as a call to arms to end our reliance on the carceral state. So many people who are in jail or prison should not be, and so many people under criminal court supervision don’t need to be. The disastrous circumstances facing pregnant women under criminal court control must similarly be a wake-up call to vote for leaders who will pass laws that protect privacy and reproductive freedom for all women.
Kate Weisburd is an associate professor of law at George Washington University School of Law.