Dana Nessel issues Michigan alert on health apps after abortion ruling

Michigan residents should use caution when sharing personal information on apps tracking menstrual cycles and other health data, Attorney General Dana Nessel noted in a consumer alert issued Tuesday.

The alert noted that millions of people log and store intimate data about their reproductive health in applications on their phones, including when their menstrual cycles stop and start and when a person is ovulating or pregnant. But in the aftermath of the U.S. Supreme Court’s decision to overturn Roe v. Wade, which brings the possibility that Michigan could soon ban abortion,  “there is legal concern the information could become evidence if abortion is criminalized,” the alert reads.

Related:

• Meet the judge keeping abortion legal in Michigan (for now)
• Michigan abortion ballot issue gets surge in volunteers, signatures
• Michigan pharmacies limit morning-after pills amid post-Roe panic buying

Nessel, a Democrat and supporter of abortion rights who is running for reelection, has been outspoken in saying her office will not prosecute any woman or provider if the procedure is made illegal in the state. The alert Tuesday indicates just how proactive she may be in protecting people’s right to abortion.

Nessel encouraged residents to “read the fine print” on user agreements for phone applications and programs and be aware that information could be sold or used by third-parties for other purposes. She did not identify who might seek such information but some county prosecutors in Michigan have made clear they would contemplate criminal charges should Michigan’s 1931 law banning most abortions goes back into effect.

“There are a lot of unknowns as we face a post-Roe era, but one thing that remains certain is that consumers can protect themselves and their private information,” Nessel said.

The possibility of data from period tracking apps being used in abortion criminal cases has gained traction in recent weeks, although officials from popular tracking apps have sought to assure users that their data is safe.

In a statement by one app company, Clue co-CEOs Carrie Walter and Audrey Tsang said the company “will never turn your private health data over to any authority that could use it against you,” adding Clue adheres to European privacy laws and does not sell, share or disclose personally identifiable health data.

Another app, Flo, recently rolled out an “anonymous mode” option so the app can be used without uploading personal information to the account. A June 30 press release indicated the feature was “accelerated” in the aftermath of the Roe v. Wade decision.

The future of abortion rights in Michigan remains uncertain. The 1931 ban — which was nullified when Roe took effect in 1973 — makes performing an abortion a felony with a punishment of up to four years in prison. Its enforcement since Roe fell has been thwarted, at least temporarily, by a state Court of Claims judge’s injunction issued in May. That order is being appealed. 

Nessel, as well as several county prosecutors, have said they would not enforce the law even if it is restored.

But Republican prosecutors in Kent and Jackson counties say they would consider criminal charges against abortion providers despite the temporary injunction. Their attorney, David Kallman, argues the injunction only applies to Nessel’s office, not county prosecutors.

Planned Parenthood of Michigan has disputed that claim, arguing there is no basis for county prosecutors to ignore the injunction.

Kallman told Bridge on Tuesday he sees no issue with Nessel’s warning that people should protect their health information. He noted that law enforcement frequently obtains electronic data through search warrants, although he said he isn’t sure whether data collected by apps that track menstrual cycles or a person’s location could prove that a doctor performed an abortion. 

He took issue with Nessel’s stance that abortion remains legal in Michigan under the current injunction: “I think she’s leading people into a false sense of security there,” he said. 

Planned Parenthood and other abortion providers have continued to provide abortions statewide since the Supreme Court decision overturning Roe was handed down, and a petition drive is gathering signatures to secure a November ballot issue that would enshrine abortion rights in the state constitution.