How should we view privacy in a post-Roe world?

The controversy over menstrual cycle apps, digital privacy, and abortion in our modern culture

July 15, 2022

In the weeks following the historic Dobbs decision, a good bit of misinformation has been propagated concerning what many pro-life laws across the nation actually do in protecting the life of the preborn and caring for vulnerable women in crisis. Along with this misinformation about the devastation of ectopic pregnancies and lamentable instances where the physical life of the mother is at risk, there has also been a torrent of speculative musings about the dystopian society we will now inhabit in a post-Roe context. As the ripple effects of this life-saving court decision continue to be felt throughout our society and as many states are enacting new laws concerning the practice of abortion, one aspect of the debate might surprise some who have followed the pro-life movement over the last 49 years.

Since the Dobbs ruling, opinion pieces, Twitter threads, and a host of comments from privacy scholars have raised the alarm and generated wildly speculative notions about the dangers to personal data privacy in a country without Roe. Even the White House Director of Gender Policy Jen Klein has urged caution on the grounds of data privacy for millions of Americans, though the actual details of her comments and other reporting on the matter often do not coincide with the clickbait headlines.

From alarmist calls for women to delete their menstrual cycle tracking apps to demands that technology and social media companies like Google delete and/or stop tracking sensitive location data like abortion clinic visits, there has been a deluge of fear-inducing information. This speculation is primarily about how troves of data collected in a digital society might be used by some in potential lawsuits or criminal filings against women seeking an abortion depending on their state. While much of this is uncharted territory and there are some legitimate questions that need to be asked by all citizens including state lawmakers, it must be noted that many if not all of the calls to immediate action are built on hypothetical situations and strained correlations to prior cases. Many if not all of the states enacting pro-life laws are rightfully seeking to prosecute those who prescribe the abortion medications or who perform abortions, not women in crisis who have long been preyed upon by the abortion industry and been led astray by the lies of the sexual revolution.

Personal privacy and moral autonomy

The connections between personal privacy and abortion are deeply intertwined in our modern moral order, given how our abortion-on-demand culture was built upon the discovered “right to privacy” in the “penumbras” of the Bill of Rights, infamously articulated by Supreme Court Justice William O. Douglas in the Supreme Court’s 1965 Griswold v. Connecticut decision.

In this 1965 decision, the right to privacy was applied specifically to the right of married couples to obtain contraceptives. However, this “implied constitutional right to privacy” soon became the foundation for a number of subsequent Supreme Court decisions such as Roe and later Lawrence v. Texas, where the court established the right to privacy as an inherent element of self-determination and complete moral autonomy, devoid of any reference to religion or faith lived under God.

In delivering the Lawrence opinion, Justice Anthony Kennedy stated “liberty protects the person from unwarranted government intrusions into a dwelling or other private places.” He went further to argue that liberty presumes that the state should not have a dominant presence in the homes of Americans, as well as an “autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” While many Christians may agree with Justice Kennedy on the concept of liberty where the state does not have unlimited authority, we must recognize that the modern notions of autonomy and self-determination are directly contrary to the biblical ethic rooted in the dignity of all, including the preborn. This supposed right to self-determination is deeply woven into the modern right to privacy, abortion culture, and throughout contemporary culture.

But by design of the Founders, the Bill of Rights established a framework that recognizes certain pre-political rights which the state is bound to recognize and uphold, including the right to life. This runs contrary to many of the current debates over abortion and privacy—debates that are often framed in light of our society’s ideas of moral autonomy and self-determination. This shift in the nature and foundation of rights represents a stark break from the transcendent framework they were originally rooted in so that now the individual has the right to define their own realities, no matter the cost to the moral order including our neighbors or even the life of a child in the womb.

Misleading hypotheticals and the right to privacy

In light of this modern notion of a right to privacy, the continued calls for state and federal privacy legislation in our post-Roe world, and the growing concerns over data privacy, how should Christians think about these issues—especially in light of the pressing questions of digital privacy and our concern for upholding the dignity of both the preborn and their mothers?

First, we must seek to deal in facts, not simple hypotheticals designed to instill fear. Not only did the Dobbs decision rightfully return the question of abortion to the states (where it resided prior to Roe) and rule that states have a compelling interest in protecting their citizens, including the youngest among us, it is clear that much of what we already know about these state laws is that they seek the criminalization of abortion providers, not women. While it is incumbent on lawmakers to think through the myriad ramifications of these laws on questions regarding digital privacy and data collection, it should be noted that the use of this type of data in criminal cases against women is exceedingly rare.

In recent years, there have been at least two known cases of personal data being used under a court order in an abortion-related cases. In 2013, an Indiana woman was arrested on grounds of feticide after seeking medical attention at a local hospital for “profuse bleeding after delivering a 1½-pound baby boy in a bathroom and putting his body in a dumpster behind her family’s restaurant.” In this case, text messages to a friend about abortion pills were used by prosecutors in the conviction of the woman even though the 2015 conviction was later overturned by the Indiana Court of Appeals.

A second case involved a Mississippi woman indicted on a second-degree murder charge in January 2018 after giving birth at home to a baby boy who was later transported to a local hospital with cardiac arrest. He subsequently died at the hospital. The defendant confessed to medical professionals that she learned she was pregnant the month before at an annual OB-GYN appointment but failed to make any follow-up appointments for prenatal care or an ultrasound. 

She told investigators that she didn’t want any more children, couldn’t afford any more, and that she “simply couldn’t deal with being pregnant again.” She was at least 35 weeks pregnant when it was revealed that she illegally procured the abortion medication misoprostol through online searches. After taking the medication without the approval of doctors and well past the approved usage, her husband called for paramedics after finding her and their son in the bathroom. Medical examiners determined through an autopsy that the baby boy was born alive and died due to asphyxiation.

Both of these cases indicate that online data was used by prosecutors in what would more rightly be called disturbing instances of infanticide. These particular cases and criminal proceedings should remind us of the vital advocacy of pro-life organizations for the Born Alive Abortion Survivors Protection legislation. The proposed protections would see those who are born after a failed abortion receive all the medical care necessary for them to survive. 

The vast majority of states enacting pro-life legislation post-Roe are seeking to outlaw abortion or tighten the window in which abortions are legal. Most of the legislation that has been proposed does not seek to criminalize abortion-vulnerable women but rather those who perform abortions or prescribe these medications which are increasingly dangerous to the life of the mother as well as to the life of the innocent child being aborted.

Second, we must understand that the right to privacy, which should be a central concern for the Christian church in a digital society, must not be framed as at odds with a rich conception of human dignity that values all human life, including the most vulnerable among us. A central facet of the pro-life movement and its 49+ years of advocacy is that vulnerable mothers should not be criminalized. Instead, those who provide abortions—whether through medical procedures or prescription drugs—should be prosecuted to the fullest extent of the law. The Southern Baptist Convention, the nation’s largest Protestant denomination, has repeatedly affirmed the value of preborn life and the priority of caring for vulnerable women in crisis through over 20 resolutions over the course of 40 years, including this past summer during the anticipation of the Dobbs decision.

A Christian understanding of privacy is that of a penultimate right that supports other pre-political rights, including the fundamental right to life rooted in how God has made us as human beings in his very image (Gen. 1:26-28). The imago Dei is the backbone of a robust Christian ethic which recognizes the dignity of all people including the preborn, their mothers, and their families. Human dignity is central to our conception of the moral order and our social ethic. While Christians should rightfully stand against the manipulative and abusive use and collection of personal data in our digital society, we need to remember that a biblical vision of privacy runs contrary to modern notions of privacy built upon moral autonomy and self-determination rather than a full conception of human dignity rooted in God’s design.

Privacy is an instrumental good that should serve the overall common good of both individuals and communities. In order for this to happen, it must be framed in light of our true nature as created beings who are under the authority of an omniscient and omnipotent God. Now more than ever we must not shrink back in fear but seek to retrieve a biblical understanding of personal privacy, which accords with the dignity of every individual and cares for the most vulnerable among us.

Jason Thacker

Jason Thacker serves as senior fellow focusing on Christian ethics, human dignity, public theology, and technology. He also leads the ERLC Research Institute. In addition to his work at the ERLC, he serves as assistant professor of philosophy and ethics at Boyce College in Louisville Kentucky. He is the author … Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24