The Shaky Future of a Post-Roe Federal Privacy Law

New York’s junior senator says Republicans aren’t “connecting all the dots about what it means for them.”

“It is so expansive and so harmful, I don’t think people have fully understood what this could impact,” Gillibrand says. “I think for many people, they’re just putting their heads in the sand and saying, ‘Oh, this doesn’t relate to me.’ Unfortunately, that’s not what the language of the decision says.”

With Pelosi and Senate Majority Leader Chuck Schumer fully embracing the status quo they inherited via an apathetic congressional fiat, it’s still unclear which, if any, of these competing privacy measures could attract the necessary bipartisan support. But some in the GOP say they’re all in. In fact, even as more libertarian-leaning Republicans opposed Roe v. Wade, they also oppose some of the fallout sparked by its absence.

“I hate the idea of these apps tracking us and selling the data and doing any of that without consumers’ permission for any reason at all,” says Senator Josh Hawley of Missouri.

Unlike Democrats, Hawley agrees with the Supreme Court ruling that there’s no constitutional right to privacy for abortions. That’s a separate question altogether for Hawley.

“There are rights to privacy in the Constitution—Fourth Amendment, Fifth Amendment—but they’re the ones that actually exist in the Constitution and are spelled out there, and they’re long protected under case law,” says Hawley, a member of the Judiciary Committee.

Those underlying privacy rights, Hawley argues, are what Congress now must explicitly apply to the repositories of personal information most people never intended to be seen by anyone. Hawley says the debate goes well beyond reproductive data.

“And this is why—and I’m a former prosecutor—but a lot of prosecutors, they don’t like encrypted anything because it does make it harder to prosecute crimes, and I understand that,” Hawley says. “But I’m a pretty big fan of encryption because otherwise you don’t have any ability to control your own data.”

Madam Speaker

In this dystopian post-Roe reality—one where the most intimate reproductive details of millions of Americans are being sold to brokers for portions of pennies or being passed from Mark Zuckerberg’s lawyers to local cops—Democratic leaders, from Pelosi and Schumer to Senate Commerce Chair Maria Cantwell, continue imperiling the chances of this Congress passing even basic data privacy protections. And, unlike recent sessions of Congress, failure isn’t an option for the Democratic rank and file.

“Many people were not aware exactly how much information is collected about their movements, and, frankly, they’re a little freaked out when they hear about it in the context of overturning Roe,” says Senator Warren. “If companies can make money by trading in your health information, your economic information, or your social preference information, then the implications of that echo throughout everything that’s happening in our lives.”

Schumer seems to have outsourced his opinion to Cantwell and Pelosi, who won’t back any measure that infringes on California’s privacy law. With California voters taken care of, in terms of access to Roe v. Wade-era reproductive health, the pleading eyes of millions of Americans are now fixed on Pelosi.

“Well, she certainly schedules things on the floor,” Mississippi senator Roger Wicker—the top Republican on Cantwell’s Commerce Committee—told reporters as he boarded a streetcar at the Capitol last week. “She’s capable of blowing up the whole deal if she chooses to.”