Oklahoma state Sen. George Burns, a Republican, introduced a new bill this month that would require anyone seeking an abortion in the state to call a designated hotline to receive counseling from "care agents" about abortion alternatives, and also to be screened for the possibility that they are victims of abuse, human trafficking or abortion coercion. The bill, SB 1167 or the "Every Mother Matters Act" (EMMA), is couched as an offer of resources, from housing to employment assistance, to provide "compassionate options for those faced with unexpected pregnancies," as Burns said in a press release. He acknowledges, however, that his "ultimate goal is ending abortion altogether."
So far, generally so familiar. But there's an important new twist here that looks to be the tip of a national iceberg: The Oklahoma bill also provides for the state Department of Health to assign each abortion-seeker who calls the hotline a "unique identifying number." Abortion providers would be required to obtain and record that number, which would also be registered in a DHS database.
Oklahoma's bill is only one of seven pieces of current or imminent state legislation covering similar provisions: Four are under consideration; one, in Arkansas, has already passed; another will soon be introduced in Alabama; and another is headed back to court. Of the five bills introduced in the past year, four have virtually identical language. Reproductive rights advocates warn that the proposed creation of government registries to track and potentially collect information from people seeking abortions is only one cause for worry. The second concerns who they suspect will collect that data, and why.
On Feb. 15, a coalition group called The Alliance: State Advocates for Women's Rights & Gender Equality will release an urgent brief warning that the crisis pregnancy center (CPC) industry — a network of an estimated 2,500 to 4,000 anti-abortion facilities that seek to dissuade women from choosing abortion, often through deceptive or coercive tactics — is poised to play a disturbingly broad new role as abortion access is increasingly endangered around the country.
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Tara Murtha, director of strategic communications at the Women's Law Project, a public interest law firm in Pennsylvania, authored the brief as an addendum to an Alliance report she co-authored last year. An advance copy of the brief, which Murtha shared with Salon, warns that legislation like Oklahoma's seems intended to establish a closed system in which pregnant people are compelled to interact with state-funded CPCs, which might in turn share information with government agencies or other entities.
As the threat of Roe v. Wade's reversal looms, Murtha and other reproductive rights advocates caution that two major anti-abortion strategies — to ban most abortions and to vastly expand CPC funding and influence — are now converging. Given the fact that CPCs already collect significant amounts of data, the Alliance brief continues, "The potential for privacy violations is profound and the consequences, if not addressed, could be dire — especially if abortion is criminalized and police investigations and state prosecutions become, as expected, common once again."
The legislation: "Every Mother Matters"
Before Oklahoma introduced its bill this month, at least three other "EMMA" bills were introduced last year, in Arkansas, Tennessee and Texas, although they've received little attention. Arkansas' bill passed into law last February and is set to be implemented in 2023. Texas' bill was introduced the same month by Sen. Angela Paxton, wife of state attorney general Ken Paxton (who orchestrated the Supreme Court case that aimed to overturn the 2020 presidential election).
Along with the provisions listed above, the four nearly-identical bills provide for many of the same things. States would contract with outside entities to administer new "abortion alternative" hotlines, and those contractors would be forbidden from either making referrals for abortion or employing anyone who either works with abortion providers or has performed an abortion in the past two years. Clinics and other providers would be responsible for collecting and registering patients' identifying numbers before offering treatment. If they fail, they're subject to $5,000 fines that — as with the infamous Texas six-week abortion ban, which deputizes private citizens to help enforce the law — are collectible either by state officials or individual citizens filing civil lawsuits. The bills also often require providers to maintain patients' identifying numbers for at least seven years.
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All four bills were created in partnership with Human Coalition Action, the political arm of a Texas-based anti-abortion nonprofit, Human Coalition, that uses digital strategies to intercept people seeking information about abortion online and divert them to its "Virtual Clinic": a contact system that the group says is meant to connect women, particularly in rural areas, with resources from CPCs to Medicaid enrollment.
Human Coalition's national director of public policy, Chelsey Youman, said the group doesn't consider itself a CPC, but rather a comprehensive "resource bank." The group's website, however, notes that it "serves and supports over 45 pro-life pregnancy centers" with marketing and other services, and details the purpose of its "contact center" as seeking "to convert in-bound calls, chats, and texts into kept appointments at pro-life pregnancy centers across the country, including the seven clinics owned and operated by Human Coalition."
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This represents something of a branding change. "Anti-abortion activists began calling CPCs 'pregnancy resource centers' in the wake of bad press, but a rebranded CPC is still a CPC," said Murtha, noting that the lack of regulations around the centers means labels can easily shift. Human Coalition is "part of the infrastructure of the CPC industry, which is a key part of the anti-abortion movement, working to advance the goals of both."
In a 2021 press release applauding the Texas bill, and another page on its website, Human Coalition Action noted its involvement in the Texas and Arkansas bills, and said other states were "poised to introduce similar legislation in the near future." Youman confirmed that the group has worked with Tennessee and Oklahoma lawmakers on those states' EMMA bills, as well as on legislation set to be introduced in Alabama in the coming days.
The group also advised on a similar bill introduced last year in Iowa that doesn't use the language of the model EMMA bills, but similarly calls for establishing contactor-run programs to intercept "pregnant women in real time who are … actively seeking an abortion" and to "employ specific scripting strategies" and "a virtual clinic model" to encourage them to choose an alternative. The bill also provides for tracking "key information throughout the entire cycle of the contractor's interactions with a pregnant woman including but not limited to key demographic and socioeconomic information, services provided, referrals provided, and program enrollment."
In states where EMMA-style bills pass, Youman said Human Coalition is not yet contracted to run the proposed hotlines, but they will certainly apply to do so. "Our intent is to serve women. If they set it all up and it's time to bid, we'll be there."
In South Dakota, legislation first introduced in 2011 would have required anyone seeking an abortion to first undergo a "private interview" with a CPC and then provide a signed statement attesting to their visit to an abortion provider before receiving medical services. The statement would then be appended to the patients' permanent medical records. That bill passed, but in June 2011 a Planned Parenthood lawsuit succeeded in blocking its implementation.
Now, however, state Republicans are trying to revive the law. In September, Gov. Kristi Noem — a Trump loyalist often mentioned as a future presidential candidate — announced that the state had retained American Center for Law and Justice attorney Jay Sekulow, who has represented high-profile right-wing clients and led Trump's 2020 impeachment defense, to help appeal the case in the 8th Circuit Court. Noem has vowed to take the case to the U.S. Supreme Court if necessary. Just this month, that lawsuit's prospects interfered with another state anti-abortion measure, as South Dakota Republican legislators, somewhat surprisingly, blocked Noem's proposed six-week abortion ban, with one legislator citing fears that the bill could jeopardize the state's lawsuit with Planned Parenthood.
Murtha says that, while these bills are vaguely worded, there's good cause to believe that CPCs are intended to serve as the contractors running the proposed hotlines. South Dakota's law, she notes, specifically asserts that abortion seekers' consultation must be with a "pregnancy help center." And while the EMMA bills aren't as explicit, they contain legal language often used in state agreements to fund Alternatives to Abortion or CPC programs, such as the bills' ban on hotline employees who have been involved with abortion services or advocacy.
"This suggests that the people implementing the provisions of this bill will be CPCs, or a rebranded CPC, or a newly created entity affiliated with CPCs," said Murtha, "especially given the simultaneous increase in public funding of CPCs," whose missions are aligned with the EMMA bills and which are increasingly winning new state contracts.
A track record of "surveillance"
So why exactly would states and CPCs want to start tracking and perhaps collecting information from people seeking abortions? That, said Murtha, "is the question of the hour." On the most obvious level, she said, forcing everyone seeking an abortion to speak with either CPCs or groups affiliated with them could be used to help the centers refine their already-sophisticated targeting tactics.
In the Alliance's 2021 report on CPCs — an in-depth, two-year investigation of 607 such centers in nine states, which is also being re-released next week — Murtha and co-author Jenifer McKenna documented the deceptive marketing, limited or misleading services, and biased or medically inaccurate advice common to nearly all CPCs. The report also argues that the expansion of CPCs, thanks to a substantial influx of state and federal government funding, is a vitally important but largely overlooked aspect of anti-abortion advocacy — a complementary strategy alongside more overt abortion bans.
"The CPC industry is basically being onboarded as a government program at this point," Murtha said, noting that government support has helped CPCs outnumber abortion clinics by three to one nationwide, with disparities that are three to four times higher in some states.
The Alliance's investigation also led to research conducted by outside advocacy groups that warns of serious privacy concerns in how CPCs have been collecting, and potentially exploiting, client data.
Almost half of the CPCs the Alliance studied were affiliated with large regional, national or international CPC networks, which often offer digital infrastructure and support to help local CPCs market themselves online, whether through SEO or advertising strategies or methods like geofencing that capture cell phone data in specified locations. Using that technology, CPCs can literally send text messages to patients who are sitting in abortion-clinic waiting rooms. The largest network, Heartbeat International, maintains a sophisticated data management system called Next Level that creates what the U.K.-based organization Privacy International calls "digital dossiers" of clients' information, including everything from demographic data to sexual and medical histories to ultrasound photos. On its website, Next Level explains, "Big data is revolutionizing all sorts of industries. Why shouldn't it do the same for a critical ministry like ours?"
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These digital tools are "enhancing the ability of CPCs to collect information for movement-building purposes," said Kim Clark, a senior attorney at the gender justice organization Legal Voice, another Alliance partner. Clark and Murtha note that Heartbeat International advertises Next Level to affiliate CPCs as means of harnessing a massive amount of collective data in ways that could "serve the whole movement," with CPCs "pulling on the same rope together."
Molly Bangs, director of the reproductive rights group Equity Forward, says that as anti-abortion state politicians replicate "Alternatives to Abortion" initiatives across the country, "we are repeatedly and widely seeing the most concerning aspects of these programs." Chief among those concerns, say advocates, is the fact that most CPCs, regardless of how they market themselves, are not licensed medical facilities, and thus are not bound by laws regulating medical privacy.
Last year's Alliance report warned that CPCs' "extensive use of sophisticated digital strategies to collect and mine client data" might combine to disastrous effect in light of new laws like Texas's SB8, with its provision allowing private citizens to sue anyone they believe was involved in an abortion after six weeks. "CPCs are now positioned to surveil pregnant people and feed their data to vigilante anti-abortion hunters anywhere in the country," the report suggested.
The group's new brief argues that the wave of EMMA bills greatly amplifies that threat, in attempting "to force pregnant people to go to CPCs and empower[ing] the government to target and track pregnant people and store their personal data."
"I have been concerned about the lack of regulation around data collection practices of CPCs for some time, because they're not licensed health care providers, and they're not billing for their services, so they're not covered by HIPAA," said Clark. But the convergence of new types of legislation, including the vigilante provisions of abortion bans like Texas's SB8, "creates an incentive for the surveillance of pregnant people. And it seems that CPCs are perfectly positioned to do that because they are collecting all this information already."
There are additional concerns, Clark said, including the fact that CPCs often target marginalized communities of color — which already suffer disproportionate surveillance through numerous government entities — and that some CPC networks have discussed data collection "as a way of building profiles for people who might be likely to have an abortion again in the future. Which is creepy no matter what, but even worse in light of the fact that they're very much targeting marginalized communities of color."
Bangs and Clark both warn that the new legislation could facilitate harassment, intimidation or coercion of people seeking abortions.
"Just the specter that the state might be collecting information about patients will dissuade some people from accessing services," said Clark, while Bangs adds that the new laws could end up either directly or indirectly delivering private information about patients to CPCs "so they are able to target and shame people out of seeking abortion care."
But as entities like the National Association of Criminal Defense Lawyers warn that the U.S. is poised to see "a shocking and dramatic expansion of its criminal legal system" as a result of mounting anti-abortion restrictions, an even more serious threat becomes visible: This data could be used to drive pregnancy- and abortion-related prosecutions.
Consider abortion, go to jail?
Murtha imagines this scenario: A woman in a state with an eight-week abortion ban expresses ambivalence about an unplanned pregnancy to a CPC, decides to carry it to term but then suffers a miscarriage and ends up under investigation for self-aborting or "feticide." In that scenario, her recorded early ambivalence about the pregnancy, and anything else she might have disclosed, could become part of the evidence against her in a criminal case.
In fact, no speculation is necessary. "We already know that the fact that someone has disclosed that they considered abortion has been used to lead to the arrest of pregnant women," said Lynn Paltrow, founder of National Advocates for Pregnant Women. Paltrow cited a 2010 case in Iowa in which a pregnant woman went to the hospital after falling down the stairs in her second trimester. In talking with a nurse, the woman disclosed that she had previously considered both abortion and adoption. After she was discharged, police stopped the woman in her cab ride home, and arrested her for attempted feticide.
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"When you start with a system of over-criminalization, in which prosecutors have literally thousands of criminal laws to choose from, and then constitutional protection for abortion is withdrawn, every admission that you've even considered an abortion could be used against you in a criminal case," Paltrow said.
Increasingly, people's digital information is being used in similar ways, noted civil rights attorney Cynthia Conti-Cook in a 2020 University of Baltimore Law Review article, "Surveilling the Digital Abortion Diary." In 2017, for example, a Black woman in Mississippi went to the hospital after suffering a stillbirth at home and was indicted for second-degree murder of the fetus after prosecutors reviewed her medical records, discussions with hospital staff, and online search history related to the misoprostol abortion pill.
As Conti-Cook wrote, her article presented "a sobering forecast; the inclusion of [the woman's] alleged internet search history related to her reproductive health as evidence of criminal intent will become standard protocol across the country once abortion is again criminalized." She noted that prosecutors could draw on digital sources as varied as internet search terms and online purchases to texts and emails to menstrual-cycle tracking apps.
"Digital evidence fills a gap for prosecutors keen on prosecuting women for their pregnancy outcomes," Conti-Cook wrote. "When medical theories fail to explain why some outcomes happened, prosecutors can now sift through an accused person's most personal thoughts, feelings, movements, and medically-related purchases during their pregnancy, even if there is little evidence supporting the conclusion that their conduct caused the pregnancy to end."
"When abortion is a crime, pregnant people are potential suspects, and any pregnancy outcome other than a healthy birth invites investigation and potential prosecution," writes Murtha in the Alliance's new brief. And it's "reasonable to predict," she concludes, that the information gathered under the proposed or passed EMMA laws could be used to that end.
A stealth threat?
Youman dismissed the fears of abortion advocates that private information about patients or clients would be stored or exploited, saying that was "a fundamental misreading" of the bills. Most versions of EMMA legislation, she said, include disclaimers that women are not required to say anything at all on their mandatory hotline call. Youman also said that contractors running the hotlines would be bound by medical privacy laws, and that most of the information to be collected would be demographic data similar to what abortion providers must often already report.
"The law explicitly states that there's no information required to be collected if a woman voluntarily goes through a program. At that point, she is protected under the law like she would be at any other clinic or doctor's office," said Youman. As for the identifying numbers being registered with the states and in medical records, she says, "It's such an anonymous process that there would be absolutely no way under this law to identify any individual woman that received an offer of assistance."
Murtha says the bill's provisions are too murky to be sure of that. "Legislation developed by anti-abortion activists that forces pregnant people to consult with anti-abortion 'care agents' so they can be tracked and surveilled by the state is already a serious privacy intrusion," she said, "and reflects the anti-abortion movement's long-standing efforts to inappropriately scrape personal information. Additionally, these bills do not assert clear privacy protections. The point is, the scheme itself is a privacy intrusion, and worse, we don't know what they will and will not do with the data — especially in states where abortion will be criminalized after Roe."
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While it's still unclear how laws like this might be implemented, said Elizabeth Nash, a state policy analyst at the Guttmacher Institute, advocates' fears don't seem far-fetched. When she has searched for information about how Arkansas intends to implement the only EMMA bill enacted so far, Nash found few specifics. "It doesn't look like there is any kind of protection here for patients or providers," she said. "It's much more about trying to follow a patient through this process."
Already, abortion clinics are reporting a significant uptick in hostility "from anti-abortion protesters very much feeling like they have the courts on their side or like they're about to have a great victory," Nash added. "To combine that with this kind of law, that is potentially putting someone's name and this reference number in the hands of CPCs? That's very concerning."
There's been surprisingly little coverage of the EMMA bills or their potential implications so far, which confounded even the advocates I've spoken with.
"I don't know if it has simply taken this long to put together the link [between those bills] and legislation like SB8," said Clark.
Murtha said that the cone of silence around this issue has a certain logic. "CPCs thrive in a blind spot," she said. "They operate in this liminal space of claiming medical legitimacy while not actually being subject to medical regulation. So it almost doesn't surprise me that this type of legislation can advance under the radar for so long."
And as with other model legislation, the EMMA bills may well continue to spread, Murtha added. "We don't know, in six months, how many states will be advancing this."