Abortion in the Age of AI: A Need for Safeguarding Reproductive Rights in the United States and the European Union

Abstract

While one might have thought that the right to abortion was solidly recognized in the Western democracies, the recent situation in the United States proves its fragility. The Dobbs v. Jackson Women's Health Organization decision, issued by the U.S. Supreme Court in June 2022, overturns the Roe v. Wade (1973) and Casey (1992) rulings on the grounds that the U.S. Constitution does not refer to abortion, notwithstanding the Fourteenth Amendment. As a result, individual states are now at liberty to criminalize abortion in the early stages of pregnancy, provided they include an exception to safeguard the mother's health. The decision has exacerbated deep divisions between states that are not new but constitute more than a simple step backwards. Given that the exercise of our rights unfolds today under technological constraints, and, as such, these rights are subject to digital laws and policies. Artificial intelligence (AI) can thus be used to monitor the privacy of individuals seeking abortion and exert strong control over their bodies. Several examples illustrate its broad usage. Notably, machine learning is used to aggregate and analyze reproductive health data from multiple sources to accurately profile women (data analytics) in the context of surveillance (advanced tracking methods). AI is also central in search engines like Google Search, actively monitoring women's online searches. On this basis, AI can predict women's intention to have an abortion (predictive AI) and step up surveillance. AI is further employed to locate and identify women approaching abortion clinics. Simultaneously, AI also plays a role in disseminating information online. Recommendation algorithms integrated with AI contribute to the propagation of misinformation, exacerbating the issue of harmful content in the realm of content moderation by online platforms. AI then embodies a divisive power of opinions in violation of any concept of social justice. It is consequently imperative to tackle the surveillance capabilities of AI tools as a method of subjugating women and controlling their bodies.

This two-part contribution adopts a comparative perspective, sequentially examining the U.S. and European legal frameworks. Part I delves into the online information market related to abortion, highlighting the under-regulation that allows disinformation/misinformation to flourish and impedes access to abortion rights. Part II considers the excessive technological surveillance of women and violation of their privacy when exercising their right to abortion.

Keywords: Digital law, digital rights, Artificial intelligence law, reproductive rights, abortion, Roe v. Wade, DSA, AI Act