Geofencing: The Overlooked Barrier to Reproductive Freedom

The day the Supreme Court overturned Roe v. Wade, I stood outside the Court with countless others to protest the devastating Dobbs v. Jackson (2022) decision. The atmosphere was charged with the collective determination of those who felt betrayed by this swift, out-of-touch ruling that swiped away our already tenuous reproductive and privacy rights. In a post-Dobbs world where women’s healthcare is constantly under attack, protecting our healthcare and data privacy has emerged as an intersectional battleground for defending our fundamental civil liberties. While the fight for federal abortion protections may take years, Congress can and should act immediately to protect women’s right to privacy within their healthcare, by banning geofencing and geolocation data collection around women’s healthcare clinics. Strong reproductive rights will always require strong data protections.

Reproductive healthcare facilities are a frequent target for geofencing and geolocation tracking, which allows anyone to easily purchase records of women’s locations and determine when they’ve been near a reproductive health center. Geofencing uses locational data to establish virtual “fences” around a designated geographic area, such as a store or an arena; when an individual enters or exits the geofence, an action is automatically triggered (such as an advertisement being loaded on a website). Geofencing is enabled by tracking geolocation data—precise information collected from an individual's location from GPS, WiFi, or cellular data. Though geofencing and geolocation tracking are interconnected, data brokers can use each method differently to surveil, commodify, and exploit women’s locations.

Geofencing’s preset boundaries allow data brokers to make dangerous assumptions about women based on their locations within a particular geofence, leading to invasive ads and digital harassment. For example, Andrea Campbell, Massachusetts Attorney General, said that the data broker Copley Advertising was contracted by Bethany Christian Services, an adoption agency, and RealOptions, a California-based network of crisis pregnancy centers in 2015 to “direct targeted advertisements—using geofencing—to ‘abortion-minded women’ sitting in waiting rooms at health clinics.” Earlier this year, Sen. Wyden (D-OR) disclosed in a letter that Near Intelligence, a data broker, used “mobile phone location data to send targeted misinformation to people who visited any of 600 reproductive health clinics in 48 states.”

Geofencing medical facilities creates urgent civil rights concerns. It not only facilitates the targeted intimidation and harassment of women through anti-abortion advertisements; it also exposes these women—and anyone with them—to potential criminal investigations in states that have severely restricted abortion access. A lack of geofencing restrictions on healthcare facilities is especially nefarious given the common misconception that Planned Parenthood only provides abortions. According to Planned Parenthood’s 2022-2023 Annual Report, abortion services accounted for only 2.3 percent of the organization’s total healthcare services: sexually transmitted infection (STI) tests, pregnancy tests, birth control, emergency contraception, and PAP tests are the kinds of services most patients seek. Allowing geofencing around Planned Parenthood locations doesn’t only allow for targeted anti-abortion harassment; it creates a commercial incentive for data brokers to sell as much data as they can about individuals who are accessing basic healthcare.

Data commodification and the invasion of privacy are not the only negative impacts of this practice. With the growth of “vigilante abortion laws,” such as Texas Senate Bill 8, also known as the Texas Heartbeat Act, geofencing can become a powerful tool to help prosecute women and achieve political agendas. The Texas law awards private citizens a cash “bounty” for successfully suing individuals who have obtained an abortion or assisted someone in obtaining an abortion. In states where abortion is illegal, women may risk their lives forgoing prenatal healthcare due to fear of prosecution or harassment, especially if their movements are tracked using geofencing and later used as prosecutorial evidence. The use of geofencing data as evidence can intimidate women, deter them from receiving healthcare, and potentially exacerbate the already high maternal mortality crisis in the United States. Research has already found that states with more restrictive abortion laws have higher maternal mortality rates. For example, Texas’s maternal mortality rate (MMR) has increased by around 40 percent over the last two decades across all racial and ethnic groups, and creating barriers to access–such as fears women’s private data will be compromised–will only further this trend. This effect is most prevalent among Black women nationwide, as the national MMR for Black women is significantly higher than that of non-Hispanic White women.

The intersection of the maternal mortality crisis, increased use of geofencing technologies, and “vigilante abortion laws” underscores the urgent need for federal geofencing legislation to protect women’s privacy and lives. Existing data protections are inadequate to meet the moment. For example, geofencing and geolocation data tracking comply with HIPAA regulations, as it only collects location data, not personal health information. In April 2024, the Biden Administration attempted to strengthen HIPAA protections for reproductive health, instituting the HIPAA Privacy Rule to Support Reproductive Health Care Privacy, which “prohibits the disclosure of protected health information (PHI) related to lawful reproductive health care in certain circumstances.” However, the rule does not address geofencing and geolocation data collection.

Congress must pass federal legislation restricting rights to geofence reproductive healthcare clinics. This is critical to protect women’s civil liberties and advance reproductive freedom. Though no federal legislation has yet addressed the threat of geofencing, both the New York and Connecticut state legislatures have offered a model for consideration. New York’s General Business Law prohibits individuals or corporations from establishing a geofence within a 1,850 ft radius around healthcare facilities, except for facilities they own. Connecticut’s law establishes a narrower geofencing ban and prohibits entities from using a geofenced boundary within a 1,750 ft radius of a reproductive health facility. As policymakers grapple with calls for a common-sense and comprehensive federal data privacy law, Congress should look to existing state laws that restrict geofencing, and prioritize establishing a national standard to restrict geofencing around reproductive healthcare facilities.

Since the overturn of Dobbs and the increased deployment of surveillance technologies, we now exist in a world where protecting data privacy is critical for advancing reproductive rights. National privacy legislation should adopt provisions similar to New York and Connecticut’s legislation to restrict the $280 billion data broker industry’s powerful ability to profit from surveilling and selling healthcare facility data. This would further protect women's autonomy, digital privacy, and the fundamental right to healthcare without fear of prosecution, and offer a powerful federal protection to women and children across the United States even if their state-level protections continue to shrink.

Cecilia Marrinan is a Tech Policy Assistant for the Kapor Foundation. Cecilia is also the Deputy Communications Director for Encode Justice, the world’s first and largest youth movement dedicated to promoting safe and equitable AI.