For more on the criminalization of pregnancy, check out our special edition.
As reproductive choice is increasingly criminalized, our posts, messages, photo libraries, and even data collected by pregnancy monitoring apps create a digital trail that can then be used as criminal evidence for violating any number of laws. So while social media can be an empowering tool, particularly during the pandemic as families and loved ones might see each other less often, it’s also a potentially incriminating digital record of the ways we take care of ourselves, our families, and our reproductive choices outside of medical and state institutions.
The surveillance and possible criminalization extends outside of our personal digital footprints—unsurprisingly, in ways that disproportionately affect people of color, especially Black women. Black families have historically experienced child welfare interventions disproportionate to their non-Black counterparts. Author Virginia Eubanks writes about the concept “automating inequality” in her book of the same name, and how tools like EBT card records, search engine records, and period tracking apps have all created evidence to successfully indict Black women for child endangerment or murder.
This is what reproductive surveillance looks like in 2021.
Roe is gone. The chaos is just beginning.
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In the United States, the Black maternal mortality crisis is just that—a crisis. That Black women are three to four times more likely to die of pregnancy complications compared to white women is based on race, class, sex, and gender dynamics in medical care. As such, more holistic alternatives to medicalized birth, such as home birth, may be a more appealing option for Black families to navigate the fraught historical relationship with traditional medical practices, particularly during the pandemic.
Home birth, however, is an especially vulnerable practice because of restrictive laws around midwifery licensing. If there are no midwives to deliver babies, then there are no home births—or at least not ones occurring legally. Like abortion, we know that prohibiting a reproductive choice does not decrease attempts to make that choice—it only limits the likelihood of safe and healthy outcomes of a procedure or birth.
Only 36 states legally recognize certified practicing midwives (CPMs). The Highline reported in 2018 that many pregnant people in rural areas of highly restricted states give birth in hotel rooms, camp sites, and even camper vans to evade these laws and potential prosecution for child endangerment or death. As such, folks who are predisposed to potentially racist interactions are forced to choose between the birth they want and access to help in a medical emergency.
But a successful prosecution can never occur without what the state, jury, or judge views as convincing evidence. Pernicious surveillance may be occurring behind the scenes as we go about our lives, but the most incriminating evidence is generated by ourselves. Many choose to document their home births via professional photographers or at the hands of loved ones or families, and these can be used as evidence in the future. Prominent Black midwives’ Instagram accounts have between 20,000 to 86,000 followers as of publication. But after clicking “share” on social media, these videos and images often can be circulated throughout the web and therefore become beyond one’s control. The risk of digitally documenting our lives while exercising the right to make certain reproductive choices puts Black families in a double bind to choose between potential future self-incrimination and contributing to the much-needed representation of natural birth choices.
During the pandemic, the handling of virus information and pregnancy made holistic options like home birth an increasingly attractive option for families who feared giving birth in a hospital setting. Just as Black pregnant people sought to mitigate interactions with institutional providers who are statistically more likely to commit racist microaggressions, the pandemic has empowered many families to share their journeys online, employing social media and medical devices as their digital witness to their reproductive journeys.
A self-induced abortion completed in the home also has the potential to be criminalized with surveillance used as “evidence” against the pregnant person. In the case of Purvi Patel, her digital data was used against her at trial, including her browsing history for abortion pills and email confirmations after she purchased them.
Attorney and legal scholar Cynthia Conti-Cook, in the 2020 University of Baltimore Law Review article “Surveilling the Digital Abortion Diary,” further writes:
A wide variety of digital forensic technology and other forms of technology broaden state surveillance power through online searches, geofencing, location tracking, purchasing history, and more. Combined, these data points could identify, for example, the profiles of pregnant people spending time at substance abuse centers, purchases at bars, or repeatedly taking a particular route across state lines.
Conti-Cook goes on to draw a connection to how location-tracking data has been used in COVID-19 contact tracing and in investigating quarantine violations: “Any number of ‘bad behaviors’ by pregnant people could similarly be surveilled.”
We may not know what lies ahead for reproductive law restrictions, but there are a few ways to keep your reproductive choices private and encrypted. One surveillance expert, who didn’t want to be identified for privacy reasons, shared what to keep in mind if you want your reproductive choices to stay private.
Be careful what you share: Be deliberate with what you share with your friends and with your apps. Edit the privacy settings on your phone, and remember that if you choose to “share all photos” with your favorite social media apps, it gives them access at any point to all your photos. This goes for all photos you have already in your library (dating years back) and for photos taken in real time. And just because you delete a post from your social media doesn’t mean it’s gone. Those photos can already have been shared and screenshotted.
Think hard before sending that photo or video: In her law review article, Conti-Cook reminds us that the most-used evidence from confiscated cell phones isn’t as sophisticated as we think: our text messages. Be careful who you’re chatting with or what you mention in your texts.
Recent legislation against abortion reminds us that all dimensions of reproductive injustice could and can be restricted now and in the future. As reproductive injustices are interlaced within one another, and abortion rights are continually under threat, there is no foretelling the ways our digital fingerprints could become incriminating evidence of future “crimes.” There is no foretelling the ways home birth may be regulated in the future, and how Black families may be disproportionately affected.