Femtechnodystopia.

• Author: Fowler, Leah R.

Introduction I. Femtech in the Shadow of Dobbs A. The End of Reproductive Rights 1. Access to birth control 2. State interests in fetal life B. The Potential Promise of Femtech 1. Quantifying the menstrual cycle 2. Empowering self-surveillance II. Femtech's Dystopia A. Femtechnodystopia 1. Femtech's present perils 2. A period panopticon B. Regulatory & Legal Shortcomings 1. The limits of agency authority 2. Constitutional obstacles III. A Different Future For Femtech A. The Difficulty of Mandating Change 1. Litigation 2. Legislation B. The Hail Mary of Influencing Change 1. Technology industry solutions. 2. Group and individual action.. Conclusion Introduction

Dobbs v. Jackson Women's Health Organization (1) overturned what many current justices had asserted was settled precedent and sent the issue of abortion back to the states. (2) But while the decision takes reproductive rights back to the status quo before the landmark Roe v. Wade decision in 1973, (3) consumer technologies move us--and a previously unimaginable surveillance apparatus (4)--relentlessly forward. This collision of past legal approaches with the present realities of reproductive science and online connectivity creates new challenges and opportunities. Smartphone-based applications (apps) for period and fertility tracking, (5) an enormously popular (6) subcategory of the "femtech" market, (7) illustrate the array of possibilities resulting from this seismic shift.

Viewed optimistically, these digital tools could offset some of the most drastic restrictions on reproductive freedoms. Consumers interested in avoiding pregnancy could use functionalities that reliably predict fertile days as fertility awareness-based contraception, which could soften the impact of limitations or prohibitions on other forms of birth control. (8) Apps could also alert users to pregnancy--potentially as soon as a period is late. (9) This feature gives consumers who wish to terminate their pregnancies more time, which is particularly useful in states where the window to obtain a legal abortion is small. (10) In places where abortion is unavailable, early notification gives those who want to terminate more time to plan--both financially and logistically--to travel for needed care. And for those who carry to term, by choice or not, quickly identifying a pregnancy allows for behavioral modifications that support the fetus's health. As a result, in a world with ever-shrinking access to reproductive care, thoughtfully designed period- and fertility-tracking apps could conveniently and discreetly increase users' agency over their health. (11)

However, these products warrant healthy pessimism. People of reproductive potential will not be the only actors interested in these technologies and the intimate data they contain. Faith-based organizations (12) and conservative political administrations (13) may wish to further their ideological beliefs by engaging directly with femtech products to promote fertility awareness-based methods of contraception over other hormonal and barrier options. Anti-abortion advocates may also use user data to target advertisements promoting their agenda (14) or may even develop or fund apps directly. (15) Government agents seeking to enforce abortion prohibitions may be interested in the specific date of a user's last menstrual period to determine gestational age or identify suspicious patterns. (16) Citizens could leverage consumer data to avail themselves of the bounties offered by state laws that curtail abortion access through private enforcement. (17) And in a hypothetical future with increased criminalization of fetal-harming behaviors, perhaps motivated by recognition of fetal personhood, (18) prosecutors may leverage data from these apps in criminal prosecutions. (19) In light of these possibilities, one of the most promising tools to counteract the anti-choice movement and its assault on reproductive rights also has the potential to become one of its greatest weapons.

All period- and fertility-tracking apps expose consumers to at least some risks, but the laws and regulations governing accuracy and privacy are complex and unintuitive. For accuracy, the Food and Drug Administration (FDA) distinguishes contraceptive apps marketed to prevent pregnancy from proceptive apps meant to identify fertile days. (20) Though consumers may use each for contraception, the FDA regulates contraceptive apps more stringently as Class II medical devices (21) but only exercises enforcement discretion over proceptive apps. (22) Still other apps are not regulated by the FDA at all, carved out from the definition of "device" by legislation that excludes products intended for, among other functions, "maintaining or encouraging a healthy lifestyle." (23) Consequently, non-contraceptive apps dominate the market and do not need to demonstrate safety or accuracy or include specific labeling before reaching an app store. (24) Data privacy and security protections are similarly confusing. The information that period and fertility trackers contain, no matter how sensitive or personal, is generally not entitled to special protection. (25) While the Federal Trade Commission (FTC) and state agencies can work to ensure that app claims are not unfair or deceptive, the often-unread and difficult-to-find terms of service and privacy policies of each app typically govern. (26) So data may be sold to third parties, susceptible to hacking, and shared with law enforcement. (27) The shifting reproductive-rights landscape intensifies these preexisting accuracy and privacy shortcomings by potentially exposing more unwitting consumers--who are poorly positioned to protect themselves--to the risk of unplanned pregnancy and expanded opportunities for surveillance.

The worst possible outcomes are not evenly distributed. Rates of period and fertility tracking with apps or other digital tools are fairly similar across race, ethnicity, and household income. (28) However, the populations most burdened by limitations on abortion and birth control are the same ones harmed by systemic racism and disproportionately higher rates of maternal mortality and morbidity. (29) This country's history is replete with inequitable enforcement of criminal laws, including under Roe. (30) Those arrested for behaviors during pregnancy between 1973 and 2005 were more likely people of color, especially in the South. (31) They were also more likely to be poor. (32) These same characteristics map closely onto the populations most likely to rely on cellphones as their primary means of internet connectivity and least likely to engage in or encounter resources to support digital self-defense. (33) In this context, the future of period- and fertility-tracking apps is, at best, uncertain. (34)

This Article proceeds in three parts. Part I considers the implications of Dobbs beyond abortion. It assesses the argument that Dobbs can also be used to restrict contraception and enable pregnancy surveillance, concluding that this interpretation is not only plausible but likely. It then evaluates period and fertility trackers' potential to mitigate the harm of these possible outcomes. But, as Part II explores, the functionalities and broad datasets that make these technologies promising can also worsen the assault on reproductive freedoms. This concern is heightened in a world where a right to privacy may not exist, and the state's interest in potential life extends from menarche to menopause. More concerning still, existing regulatory and legal approaches do little to stop the state from interfering with reproductive freedom. Thus, this Article argues that three key criteria must be satisfied to avoid the greatest perils. Specifically, apps must be accurate, the data they contain must be kept private and secure, and consumers must be aware of their risks and limitations. But achieving these goals is complicated by developers' conflicts of interest and a budding reproductive surveillance state with criminal implications. With this in mind, Part III offers multiple options that account for practical limitations, the current Supreme Court, and political trends. In it, we argue that exclusive reliance on government intervention is misguided and look cautiously toward private industry and individual action. Our Article concludes with a warning: We must act now--with all available tools--to prevent femtech's dystopian future from becoming a reality.

1. Femtech in the Shadow of Dobbs

   Since the Supreme Court decided Roe v. Wade, conservative lawmakers and other anti-choice activists have been hard at work anticipating and hastening its demise. (35) With the Court's decision in Dobbs, they have finally achieved their goal of reducing or outright eliminating access to safe and legal abortions in many parts of the United States. (36) But this long-sought-after accomplishment is not the end. This Part looks at what may come next in the continued efforts to curtail reproductive freedoms. It then turns to period and fertility trackers as potentially promising solutions that, if designed well, offer free, discrete, and convenient tools to increase bodily autonomy at the same time that public and private entities would seek to restrict it.

   1. The End of Reproductive Rights

      In the Dobbs opinion overturning Roe and Casey, the Supreme Court reversed nearly fifty years of precedent guaranteeing the legality of previability abortion. (37) The Court held that the country's history and tradition--a requirement for unenumerated rights--did not support a right to abortion. (38) To distinguish abortion from other recognized unenumerated rights, the Court focused on abortion's destruction of "fetal life." (39) Without a finding of historical support, the Court concluded that considerations under stare decisis--the nature of the Court's prior errors and the quality of its reasoning, the workability of the abortion doctrine, the disruptive...