How A Post-Roe vs. Wade World Will Affect Telehealth Companies
What you need to know and what to expect moving forward
Updated April 27, 2023
Note: As of June 24, 2022, the Supreme Court ruled that the right to an abortion is not federally protected under the constitution. It will now be left up to the states to decide.
On May 2, 2022, Politico reported a supreme court initial draft majority opinion written by Justice Samuel Alito in favor of striking down the landmark Roe vs. Wade decision. It’s safe to say this sparked passionate debate from both sides.
Since the leak, the 50-year-old precedent was struck down this Friday, June 24, 2022. Many organizations, health companies and of course patients, will be affected by this decision. Some digital startups focused on family planning had previously responded to the draft opinion.
In an article for TechCrunch, Natalie Walton, chief executive of Expectful, said that restriction “to women’s access to safe abortion services will lead to adverse health implication for countless women”. In response, the app, focused on the journey to motherhood, is adding a section on abortions to its library as an educational resource.
Updated state-by-state abortion positions:
19 states have banned or partially banned abortion
27 states remain legal with some additional protections
5 states have blocked their state bans and are currently uncertain
For state-by-state abortion laws and regulations, check out our interactive map.
So, what should digital health companies expect?
Increased demand for abortion pills
The telehealth companies focused on women’s health and reproduction are at increased risk for damaging pushback. Those who specifically provide reproductive education and abortion services are preparing for a large increase in demand in light of the recent news.
Hey Jane, a digital abortion clinic that connects patients to licensed medical providers, sought new venture capital (VC) funds to get ready. The company specializes in abortion pills that have either been banned or restricted for telemedicine sale in 19 states. Medication abortion, or abortion pills, is the practice of using a two drug regiment of Mifepristone and Misoprostol, to terminate a pregnancy.
The six states Hey Jane currently operates in are set to keep abortion legal, but demands for pills have already started to increase. For much of the country, abortion pills will be their only viable option.
According to an article by The Washington Post, residents in states with sharp limits to abortion, like Texas, were already fueling a boom in medication abortions as patients sought alternatives. Some are even looking outside the United States toward companies like Aid Access in Austria who provide abortion pills to women globally. These abortion pills have not been approved by the FDA for use in the United States.
As of 2020, abortion medication accounted for 54% of all abortions in the U.S. according to the Guttmacher Institute, a research organization that supports abortion rights. The end to a 50-year precedent is a drastic change from even just this past December. The FDA made permanent a covid-era policy allowing abortion pills to be prescribed via telehealth and distributed by mail in states that permit it. Still, the patchwork of regulations and restrictions likely to follow are only going to make it harder for telehealth companies to provide services like medication abortion.
At the end of the day, if a state prohibits providers from performing a surgical abortion or in-clinic abortion, the same goes for a telehealth abortion. Patients cannot order abortions pills through a provider in a legal state if they reside in a state where it is not legal.
Data Privacy and Collection
For those in the digital health space, data is top of mind. More specifically, data collection and tracking. Tech and telehealth companies, like those in femTech, are worried about potentially being subpoenaed to release their data for use in tracking and convicting those seeking abortion services. Putting data privacy protection rights into question. Again.
It’s already well-known that user data is bought and sold by brokers to companies for successful ad targeting. So, it’s not completely far-fetched that data like that could be used in other ways. In fact, some already have.
Location broker, SafeGraph, started making its data freely available to nonprofit organizations and government agencies around the start of the COVID-19 pandemic. That data was initially meant to be used to assess whether people complied with social distancing.
However, they recently admitted to selling information that showed where groups of people visiting clinics that provided family planning and abortion services had traveled from, how long they stayed, and where they traveled afterwards. This set off alarm bells and the broker has since removed the data from its online self-serve data platform.
Why does this matter?
With Roe being overturned, a woman’s internet data could potentially be used in court to justify an illegal abortion. In Louisiana, it could even be used to convict a woman with homicide if its abortion-homicide bill were enacted according to TIME (the Louisiana bill has since been withdrawn).
Digital health companies and providers are not excluded from this either. If that data found them to be connected to any illegal abortion or abortion service, they could also face legal consequences as a result. With major publications like TIME, The Washington Post, NPR, NBC, and USA Today covering Roe data privacy concerns, it may be time for tech companies to take another look at their data policies.
It’s up to these companies to make sure they are being as transparent as possible when it comes to their users' data. Especially for those who work with private medical data in the digital health space.
Democratic Lawmakers in the House reintroduce data privacy policies
There are a couple of bills you might want to keep track of.
Prior to ruling:
In response to the supreme court draft opinion, Democratic lawmakers in the House are doubling down on digital privacy. The Mind Your Own Business Act, first introduced in 2019 by Senator John Wyden, D., would create new cyber security and privacy policies that digital platforms must abide by. It would provide means for customers to see both the data that has been collected on them and with which parties it has been shared.
Wyden also introduced a bill in 2021, alongside Republican Senator Rand Paul of Kentucky, the Fourth Amendment Is Not For Sale Act. This act would close the legal loophole that allows data brokers to sell individuals’ personal information to law enforcement and intelligence agencies without court oversight.
Both bills were introduced prior to the supreme court opinion leak but have now generated new fervor because of the data privacy concerns. If passed, they would affect how data is collected and shared by both companies and government entities.
Post ruling:
In July 2022, the Ensuring Access to Abortion Act of 2022 was introduced in congress. This legislation prohibits anyone acting under state law from interfering with a person's ability to access out-of-state abortion services. According to the bill summary, Abortion services includes:
health care providers who provide legal abortion services to out-of-state residents
any person or entity who helps health care providers to provide such services
any person who travels to another state to obtain such services
any person or entity who helps another person travel to another state to obtain such services
the movement in interstate commerce of drugs that are approved to terminate pregnancies.
The Women's Health Protection Act is a current legislation with the goal of re-establishing abortion rights to women nationwide. According to the Center for Reproductive Rights. WHPA establishes a statutory right for health care professionals to provide abortion care and the right for their patients to receive care, free from bans and medically unnecessary restrictions that single out abortion care.
The future of abortion access
The Supreme Court decision was a shock to many and has a lot of people asking “What’s next?”. For now, the decision regarding access to abortion is going to be left up to the states. The ruling is still very fresh and we’ll see more unfold in the next couple of months.
However, it has forced digital health companies to start thinking about what that means for them and their patients. Those who focus on women’s reproductive health should be ready to communicate to their patients how these changes might affect their relationship with your company.
Note: We will continue to watch and update as more information is revealed.