Tech Companies Are Not Ready for a Post-Roe Era

The digital revolution came of age when legal abortion was the default. As a result, Silicon Valley companies have never had to seriously grapple with the criminalization of abortion access in the United States. But tech companies are about to be at the center of the storm surrounding abortion access and reproductive rights. An overnight criminalization of abortion in 23 states, as is now expected, would leave them struggling with issues ranging from services that could expose users to criminal liability for aiding and abetting abortion access to employees demanding relocation to other states.

Tech companies will wake up the day the Dobbs v. Jackson opinion is issued to immense challenges moderating their products and services while competing demands from the public, employees, and legislators create an unwinnable situation. The mortal threat to Roe was not taken seriously by many in corporate America, and that apathy will now come back to haunt them in the form of a hellscape of legal and policy challenges unlike any that they have faced before. They are not ready, but luckily there is time to prepare.

The most immediate issue tech firms will face is how to respond to the decision internally. These companies have largely been synonymous with a young and liberal workforce, specifically one based in Silicon Valley. However, those trends have started to change throughout the pandemic as more tech companies like Oracle, HP, and Tesla have moved to Texas, a state that has already effectively banned most abortions through SB8. If the draft opinion is issued formally, companies will suddenly be forced to take a stand on protecting their employees’ rights to access abortion and demonstrating support for the overwhelming majority that support Roe, while simultaneously navigating a minefield of Republican legislators seeking to exact political retribution on any company that challenges them on conservative social policies. Amazon, Citi, and Yelp have already had to address this issue by offering their employees coverage to leave the state for an abortion, a move that has already earned Citi threats of retribution by House Republicans.

Beyond the internal policies, the services these companies provide could come under scrutiny by overzealous legislators and anti-abortion activists. Apps and app stores could be targeted for regulation by states seeking to aggressively limit access to abortion for their citizens. Currently, there are sexual health apps that provide secure and encrypted services while also providing direct instructions on how to self-manage abortions. While CDA Section 230 would immunize companies of most liability, it would not stop efforts to abrogate that immunity by states. First Amendment protections for these apps will not be effective to keep them up when states may seek retribution for opposing socially conservative policies, much as Florida has done to Disney.

But it’s not just the apps and services themselves that are at risk—it’s their users, too. Companies that traffic in personal, geolocation, advertising, or other data could become digital crime scenes for eager prosecutors armed with subpoenas. For instance, payment apps present a deep risk towards users who use them for donations to abortion funds. And there has already been a concerted effort to channel more money towards these funds as a result of the leak of the draft. While these donations are currently legal, they may become illegal in some states if the leaked draft stays substantially similar when the full opinion is released. With the lone exception of Apple Pay (on some metrics), none of the major payment apps such as Venmo, Paypal, Cash App, Facebook Pay, Zelle, or Google Pay have any meaningful protections for users. They all lack encryption and agree to comply with legal process, and the third party doctrine prevents users from asserting their 4^th Amendment rights.

Likewise, crowdfunding platforms, which typically see extraordinary usage in response to major news, are particularly vulnerable. In a world where abortions are criminalized, sites like GoFundMe will have to determine how to moderate fundraisers aimed at preserving access to abortion. While GoFundMe may not face direct legal consequences due to Section 230, they will likely come under pressure to deplatform abortion access fundraisers. Additionally, the data collected by GoFundMe could be used by law enforcement to target funders of abortion services.