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To protect abortion rights, don’t let the UK ditch the ECHR

Privacy campaigners warn metadata could put Americans seeking abortions at risk of prosecution. Is Europe any safer?

By Susie Alegre

The US Supreme Court judgement overturning the right to safe abortions, enjoyed in the US since the 1973 case of Roe vs Wade, has sent ripples of fear about the safety of women’s reproductive rights far beyond American shores. And it has highlighted how the technological tools of the 21st century leave us in serious danger when our rights are suddenly torn away, dragging us back to the 18th century. We may look at these issues as a US legal and cultural anomaly, but Europe is not immune, and the UK, outside Europe, is even more exposed.

Abortion is still subject to highly restrictive laws, including bans, in several European countries, and safe access to abortion is still not a given even within the UK. As states across the US make abortion illegal, which, in some cases, could mean prosecuting people for accessing or supporting access to legal abortions over state borders, the alarm bells that privacy campaigners have been ringing for years are now impossible to ignore.

Period tracker apps are among the most popular apps for women, particularly young women, globally. If you have one on your phone, you are carrying around an easily accessible file on everything related to your fertility and a handy, pocket-sized tool for social control. Even without a period tracker, your possible pregnancy status is easily inferred through the data trails you leave in your daily activities. In 2012, a US retailer was reportedly able to tell a teenage girl was pregnant before her parents did. And Vice reported in May that a week’s worth of geolocation data identifying people who had been in the vicinity of a Planned Parenthood clinic could be bought on the open market for just over $160.

Your metadata and your online life say everything anyone needs to know to identify you as someone who may have committed, or be planning to commit, a crime. A digital “strip search” may be even more effective than a physical one for singling you out as an offender. And digital strip searches have been increasingly common at US borders in recent years.

You might think that in Europe at least data protection laws are better. But the General Data Protection Regulation, which came into effect in 2018, is only as good as its enforcement. And once you are talking about a criminal investigation, the GDPR won’t really help you at all.

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Privacy is a human right and, as it has evolved to meet modern circumstances, it includes the right to physical integrity and the right to data protection. But they are not the only rights in play. The US Supreme Court judgement shows us how all our rights are interconnected. You may find yourself incarcerated following an unfair trial based on evidence extracted in violation of your privacy in a system that discriminates against you and destroys your dignity. The only true recourse an individual has against this is a law that protects human rights. Our rights are interconnected, inalienable and indivisible. We all have them, and the US ruling is a reminder that we never know when we may next need to rely on them.

The Supreme Court interpretation of US law dates back to the 18th century, a time when only white men had rights in law. US exceptionalism means it has no enforceable international legal safety net to prevent the stripping away of basic human rights. But in Europe, and even in the UK, we are protected, at least for now, by the European Convention on Human Rights (ECHR).

The “living instrument” doctrine established in ECHR case law means that the way human rights are understood and applied in Europe is progressive, reflecting modern circumstances, not interpreted as if we still lived in the 1950s when the convention was drafted. While abortion may not yet be legal across the whole of Europe, it is unlikely that turning the clock back on reproductive rights would be lawful in countries where it is already legal, because of the ECHR. If you want to protect your and your children’s privacy, you should probably ditch that fertility app on your phone. And if you want to protect your and your children’s hard-won rights now and in the future, you should do everything you can to make sure the UK does not ditch European human rights law.

Susie Alegre is the author of Freedom to Think (Atlantic Books 2022)

Read more: Surgical abortions in the UK decline as at-home medical abortions surge

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