Democrats at the federal and state levels are pushing to pass bills protecting sensitive reproductive health data before Republicans take control of key legislative chambers. 

Democratic Sen. Elizabeth Warren of Massachusetts plans on Tuesday to reintroduce legislation that would put guardrails on the largely unregulated industry buying and selling consumer data, her office shared first with The 19th. The bill, the Health and Location Data Protection Act, would ban data brokers — an estimated $200 billion industry — from selling or transferring consumers’ health and location data.

The U.S. Supreme Court overturned federal abortion rights protections in 2022, putting a renewed focus on data privacy. Reproductive rights advocates worry about ways in which the privacy and safety of abortion patients could be at risk in states where the procedure is banned. They have raised concerns about apps that track menstrual cycles and family planning, as well as location data that can be used to track patients’ visits to abortion clinics. 

Data brokers say the data they collect is anonymized. But some researchers have found vulnerabilities in that data that could make it possible to see who has gone to an abortion clinic. The startup Atlas Privacy obtained access to a tool used by the U.S. government and law enforcement agencies that draws on commercially available location data. A NOTUS analysis of the data found they were able to trace individual phones to a clinic that provides abortions in Tallahassee, Florida. 

“Data brokers are raking in giant profits from selling Americans’ most private information – even location tracking data from visits to clinics for reproductive care,” Warren said in a statement. “As Republicans ramp up efforts to criminalize abortion, it’s more important than ever to crack down on greedy data brokers and protect Americans’ privacy.”

Sens. Bernie Sanders of Vermont, an independent aligned with Democrats, and Sens. Ron Wyden of Oregon and Sheldon Whitehouse of Rhode Island, both Democrats, are co-sponsors of the proposed legislation, which would be implemented and enforced by the Federal Trade Commission. The legislation allows exceptions for activities regulated by existing patient privacy regulations and those protected by the First Amendment. 

But the legislation faces tough odds in the Senate, where a three-fifths supermajority is required to advance most legislation, and in the Republican-controlled House of Representatives. Come January, Republicans will hold a trifecta in Washington, controlling the White House and both chambers of Congress. 

Democrats at the state level are also moving to protect reproductive health data. On Friday, the Michigan state Senate passed a bill, sponsored by Democratic state Sen. Mallory McMorrow, that would ban cycle-tracking apps from collecting and amassing users’ data without their consent and allow them to use the data only for purposes approved by users. Democratic Gov. Gretchen Whitmer is supporting the bill, which Democrats hope to pass before Republicans take control of the state House in January. 

“These tools are really valuable,” McMorrow told the Associated Press. “I just want to make sure that the guardrails are there when indications from the incoming federal administration is they would potentially weaponize the data in a way that is very dangerous.”

While Republicans gained a trifecta in Washington, voters in seven states passed measures guaranteeing a right to abortion in their state constitutions in November’s elections, meaning a dozen have done so since the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization. 

Some Democratic-controlled states like California and Washington have laws that protect all health data or reproductive health data specifically. 

Health data privacy laws in other states have gained bipartisan backing. Earlier this year, Republican Gov. Glenn Youngkin of Virginia, a Republican, signed a bill into law supported by abortion rights groups that shields data entered into cycle-tracking apps from being used in criminal investigations or prosecutions.