After Dobbs v. Jackson, the Battle Shifts to Digital Privacy v. Surveillance
The limits of digital privacy are becoming clearer in the post-Dobbs era, as a wide range of data sources can reveal online and offline activities, including whether a woman seeks an abortion.
Since the recent reversal of Roe v. Wade — the landmark decision establishing a constitutional right to abortion — the vulnerabilities of reproductive health data and various other information stored on digital devices or shared through the Web have risen to the forefront.
Menstrual period tracking apps are an example of how technologies that collect information from users could be weaponized against abortions seekers. The apps, which help tens of millions of users in the U.S. predict when they’re ovulating, may provide evidence that leads to criminal prosecution in states with abortion bans, says Anton T. Dahbura, executive director of the Johns Hopkins University Information Security Institute. In states where abortion is outlawed, “it’s probably best to not use a period tracker,” he says.
Following the Dobbs v. Jackson ruling in late June that overturned Roe, even women who suffered a miscarriage could be suspected of having an abortion in some cases. While using these apps in anonymous mode may appear more secure, “data is notoriously difficult to perfectly anonymize,” Dahbura says. “Whether the data are stored on the user’s device or in the cloud, there are ways to connect that data to the user.”
Completely concealing one’s tracks in cyberspace poses enormous challenges. Digital forensics can take advantage of technology such as GPS apps, security cameras, license plate trackers, credit card transactions and bank records to reconstruct a person’s activities,” Dahbura says. “Abortion service providers are also in a world of risk for similar reasons.”
Practicing “good cyber hygiene” is essential. That’s particularly true in states where private citizens may be rewarded for reporting on women they suspect of having an abortion, such as Texas, which passed a so-called bounty hunter law last fall. To help guard against hacking, Dahbura suggests using strong passwords and two-factor authentication when possible while remaining on alert for phishing scams on email or texts.
Another option for safeguarding privacy is to avoid such apps entirely, but that choice will depend on an individual’s analysis of the risks and benefits, says Leah Fowler, research assistant professor at the University of Houston Law Center, Health Law & Policy Institute.
“These apps are popular because people find them helpful and convenient, so I hesitate to tell anyone to get rid of something they like without more concrete evidence of its nefarious uses,” she says. “I also hate the idea that asking anyone capable of becoming pregnant to opt out of all or part of the digital economy could ever be a viable solution. That’s an enormous policy failure. We have to do better than that.”
The potential universe of abortion-relevant data can include information from a variety of fitness and other biometric trackers, text and social media chat records, call details, purchase histories and medical insurance records.
Instead, Fowler recommends that concerned consumers read the terms of service and privacy policies of the apps they’re using. If some of the terms are unclear, she suggests emailing customer service with questions until the answers are satisfactory. It’s also wise for consumers to research products that meet their specific needs and find out whether other women have raised concerns about specific apps. Users interested in more privacy may want to switch to an app that stores data locally, meaning the data stays on your device, or does not use third-party tracking, so the app-maker is the only company with access to it, she says.
Period tracking apps can be useful for those on fertility journeys, making it easier to store information digitally than on paper charts. But users may want to factor in whether they live in a state with an anti-abortion stance and run the risk of legal issues due to a potential data breach, says Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.
Consumers’ risks extend beyond period tracking apps in the post-Roe v. Wade era. “Anything that creates digital breadcrumbs to your reproductive choices and conduct could raise concerns — for example, googling ‘abortion providers near me’ or texting your best friend that you are pregnant but do not want to be,” Shachar says. Women also could incriminate themselves by bringing their phones, which may record geolocation data, to the clinic with them.
The potential universe of abortion-relevant data can include information from a variety of fitness and other biometric trackers, text and social media chat records, call details, purchase histories and medical insurance records, says Rebecca Wexler, faculty co-director of the Berkeley Center for Law & Technology. “These data sources can reveal a pregnant person’s decision to seek or obtain an abortion, as well as reveal a healthcare provider’s provision of abortion services and anyone else’s provision of abortion assistance,” she says.
In some situations, people or companies could inadvertently expose themselves to risk after posting on social media with offers of places for abortion seekers to stay after traveling from states with bans. They could be liable for aiding and abetting abortion. At this point, it’s unclear whether states that ban abortion will try to prosecute residents who seek abortions in other states without bans.
Another possibility is that a woman seeking an abortion will be prosecuted based not only on her phone’s data, but also on the data that law enforcement finds on someone else’s device or a shared computer. As a result, “people in one household may find themselves at odds with each other,” says K Royal, faculty fellow at the Center for Law, Science, and Innovation at Arizona State University’s Sandra Day O'Connor College of Law. “This is a very delicate situation.”
Individuals and corporate executives should research their options before leaving a digital footprint. “Guard your privacy carefully, whether you are seeking help or you are seeking to help someone,” Royal says. While she has come across recommendations from other experts who suggest carrying a second phone that is harder to link a person’s identity for certain online activities, “it’s not practical on a general basis.”
The privacy of this health data isn’t fully protected by the law because period trackers, texting services and other apps are not healthcare providers — and as a result, there’s no prohibition on sharing the information with a third party under the Health Insurance Portability and Accountability Act of 1996, says Florencia Marotta-Wurgler, a professor who specializes in online consumer contracts and data privacy at the NYU School of Law.
“So, as long as there is valid consent, then it’s fair game unless you say that it violates the reasonable expectations of consumers,” she says. “But this is pretty unchartered territory at the moment.”
As states implement laws granting anyone the power to report suspected or known pregnancies to law enforcement, anti-choice activists are purchasing reproductive health data from companies that make period apps, says Rebecca Herold, chief executive officer of Privacy & Security Brainiacs in Des Moines, Iowa, and a member of the Emerging Trends Working Group at ISACA, an association focused on information technology governance. They could also buy data on search histories and make it available in places like Texas for “bounty hunters” to find out which women have searched for information about abortions.
Some groups are creating their own apps described as providing general medical information on subjects such as pregnancy health. But they are “ultimately intended to ‘catch’ women” — to identify those who are probably pregnant and dissuade them from having an abortion, to launch harassment campaigns against them, or to report them to law enforcement, anti-choice groups and others in states where such prenatal medical care procedures are now restricted or prohibited, Herold says.
In addition to privacy concerns, the reversal of Roe v. Wade raises censorship issues. Facebook and Instagram have started to remove or flag content, particularly as it relates to providing the abortion pill, says Michael Kleinman, director of the Silicon Valley Initiative at Amnesty International USA, a global organization that promotes human rights.
Facebook and Instagram have rules that forbid private citizens from buying, selling or giving away pharmaceuticals, including the abortion pill, according to a social media post by a communications director for Meta, which owns both platforms. In the same post, though, the Meta official noted that the company’s enforcement of this rule has been “incorrect” in some cases.
“It’s terrifying to think that arbitrary decisions by these platforms can dramatically limit the ability of people to access critical reproductive rights information,” Kleinman says. However, he adds, “as it currently stands, the platforms make unilateral decisions about what reproductive rights information they allow and what information they take down.”
Questions remain about new drug for hot flashes
In May, a new drug, Fezolinetant, was approved by the FDA to treat hot flashes associated with menopause.
Vascomotor symptoms (VMS) is the medical term for hot flashes associated with menopause. You are going to hear a lot more about it because a company has a new drug to sell. Here is what you need to know.
Menopause marks the end of a woman’s reproductive capacity. Normal hormonal production associated with that monthly cycle becomes erratic and finally ceases. For some women the transition can be relatively brief with only modest symptoms, while for others the body's “thermostat” in the brain is disrupted and they experience hot flashes and other symptoms that can disrupt daily activity. Lifestyle modification and drugs such as hormone therapy can provide some relief, but women at risk for cancer are advised not to use them and other women choose not to do so.
Fezolinetant, sold by Astellas Pharma Inc. under the product name Veozah™, was approved by the Food and Drug Administration (FDA) on May 12 to treat hot flashes associated with menopause. It is the first in a new class of drugs called neurokinin 3 receptor antagonists, which block specific neurons in the brain “thermostat” that trigger VMS. It does not appear to affect other symptoms of menopause. As with many drugs targeting a brain cell receptor, it must be taken continuously for a few days to build up a good therapeutic response, rather than working as a rescue product such as an asthma inhaler to immediately treat that condition.
Hot flashes vary greatly and naturally get better or resolve completely with time. That contributes to a placebo effect and makes it more difficult to judge the outcome of any intervention. Early this year, a meta analysis of 17 studies of drug trials for hot flashes found an unusually large placebo response in those types of studies; the placebo groups had an average of 5.44 fewer hot flashes and a 36 percent reduction in their severity.
In studies of fezolinetant, the drug recently approved by the FDA, the placebo benefit was strong and persistent. The drug group bested the placebo response to a statistically significant degree but, “If people have gone from 11 hot flashes a day to eight or seven in the placebo group and down to a couple fewer ones in the drug groups, how meaningful is that? Having six hot flashes a day is still pretty unpleasant,” says Diana Zuckerman, president of the National Center for Health Research (NCHR), a health oriented think tank.
“Is a reduction compared to placebo of 2-3 hot flashes per day, in a population of women experiencing 10-11 moderate to severe hot flashes daily, enough relief to be clinically meaningful?” Andrea LaCroix asked a commentary published in Nature Medicine. She is an epidemiologist at the University of California San Diego and a leader of the MsFlash network that has conducted a handful of NIH-funded studies on menopause.
Questions Remain
LaCroix and others have raised questions about how Astellas, the company that makes the new drug, handled missing data from patients who dropped out of the clinical trials. “The lack of detailed information about important parameters such as adherence and missing data raises concerns that the reported benefits of fezolinetant very likely overestimate those that will be observed in clinical practice," LaCroix wrote.
In response to this concern, Anna Criddle, director of global portfolio communications at Astellas, wrote in an email to Leaps.org: “…a full analysis of data, including adherence data and any impact of missing data, was submitted for assessment by [the FDA].”
The company ran the studies at more than 300 sites around the world. Curiously, none appear to have been at academic medical centers, which are known for higher quality research. Zuckerman says, "When somebody is paid to do a study, if they want to get paid to do another study by the same company, they will try to make sure that the results are the results that the company wants.”
Criddle said that Astellas picked the sites “that would allow us to reach a diverse population of women, including race and ethnicity.”
A trial of a lower dose of the drug was conducted in Asia. In March 2022, Astellas issued a press release saying it had failed to prove effectiveness. No further data has been released. Astellas still plans to submit the data, according to Criddle. Results from clinical trials funded by the U.S. goverment must be reported on clinicaltrials.gov within one year of the study's completion - a deadline that, in this case, has expired.
The measurement scale for hot flashes used in the studies, mild-moderate-severe, also came in for criticism. “It is really not good scale, there probably isn’t a broad enough range of things going on or descriptors,” says David Rind. He is chief medical officer of the Institute for Clinical and Economic Review (ICER), a nonprofit authority on new drugs. It conducted a thorough review and analysis of fezolinestant using then existing data gathered from conference abstracts, posters and presentations and included a public stakeholder meeting in December. A 252-page report was published in January, finding “considerable uncertainty about the comparative net health benefits of fezolinetant” versus hormone therapy.
Questions surrounding some of these issues might have been answered if the FDA had chosen to hold a public advisory committee meeting on fezolinetant, which it regularly does for first in class medicines. But the agency decided such a meeting was unnecessary.
Cost
There was little surprise when Astellas announced a list price for fezolinetant of $550 a month ($6000 annually) and a program of patient assistance to ease out of pocket expenses. The company had already incurred large expenses.
In 2017 Astellas purchased the company that originally developed fezolinetant for $534 million plus several hundred million in potential royalties. The drug company ran a "disease awareness” ad, Heat on the Street, hat aired during the Super Bowl in February, where 30 second ads cost about $7 million. Industry analysts have projected sales to be $1.9 billion by 2028.
ICER’s pre-approval evaluation said fezolinetant might "be considered cost-effective if priced around $2,000 annually. ... [It]will depend upon its price and whether it is considered an alternative to MHT [menopause hormone treatment] for all women or whether it will primarily be used by women who cannot or will not take MHT."
Criddle wrote that Astellas set the price based on the novelty of the science, the quality of evidence for the drug and its uniqueness compared to the rest of the market. She noted that an individual’s payment will depend on how much their insurance company decides to cover. “[W]e expect insurance coverage to increase over the course of the year and to achieve widespread coverage in the U.S. over time.”
Leaps.org wrote to and followed up with nine of the largest health insurers/providers asking basic questions about their coverage of fezolinetant. Only two responded. Jennifer Martin, the deputy chief consultant for pharmacy benefits management at the Department of Veterans Affairs, said the agency “covers all drugs from the date that they are launched.” Decisions on whether it will be included in the drug formulary and what if any copays might be required are under review.
“[Fezolinetant] will go through our standard P&T Committee [patient and treatment] review process in the next few months, including a review of available efficacy data, safety data, clinical practice guidelines, and comparison with other agents used for vasomotor symptoms of menopause," said Phil Blando, executive director of corporate communications for CVS Health.
Other insurers likely are going through a similar process to decide issues such as limiting coverage to women who are advised not to use hormones, how much copay will be required, and whether women will be required to first try other options or obtain approvals before getting a prescription.
Rind wants to see a few years of use before he prescribes fezolinetant broadly, and believes most doctors share his view. Nor will they be eager to fill out the additional paperwork required for women to participate in the Astellas patient assistance program, he added.
Safety
Astellas is marketing its drug by pointing out risks of hormone therapy, such as a recent paper in The BMJ, which noted that women who took hormones for even a short period of time had a 24 percent increased risk of dementia. While the percentage was scary, the combined number of women both on and off hormones who developed dementia was small. And it is unclear whether hormones are causing dementia or if more severe hot flashes are a marker for higher risk of developing dementia. This information is emerging only after 80 years of hundreds of millions of women using hormones.
In contrast, the label for fezolinetant prohibits “concomitant use with CYP1A2 inhibitors” and requires testing for liver and kidney function prior to initiating the drug and every three months thereafter. There is no human or animal data on use in a geriatric population, defined as 65 or older, a group that is likely to use the drug. Only a few thousand women have ever taken fezolinetant and most have used it for just a few months.
Options
A woman seeking relief from symptoms of menopause would like to see how fezolintant compares with other available treatment options. But Astellas did not conduct such a study and Andrea LaCroix says it is unlikely that anyone ever will.
ICER has come the closest, with a side-by-side analysis of evidence-based treatments and found that fezolinetant performed quite similarly and modestly as the others in providing relief from hot flashes. Some treatments also help with other symptoms of menopause, which fezolinetant does not.
There are many coping strategies that women can adopt to deal with hot flashes; one of the most common is dressing in layers (such as a sleeveless blouse with a sweater) that can be added or subtracted as conditions require. Avoiding caffeine, hot liquids, and spicy foods is another common strategy. “I stopped drinking hot caffeinated drinks…for several years, and you get out of the habit of drinking them,” says Zuckerman.
LaCroix curates those options at My Meno Plan, which includes a search function where you can enter your symptoms and identify which treatments might work best for you. It also links to published research papers. She says the goal is to empower women with information to make informed decisions about menopause.
A company in England has made a test that picks out the compounds from breath that reveal if people have liver disease.
Every year, around two million people worldwide die of liver disease. While some people inherit the disease, it’s most commonly caused by hepatitis, obesity and alcoholism. These underlying conditions kill liver cells, causing scar tissue to form until eventually the liver cannot function properly. Since 1979, deaths due to liver disease have increased by 400 percent.
The sooner the disease is detected, the more effective treatment can be. But once symptoms appear, the liver is already damaged. Around 50 percent of cases are diagnosed only after the disease has reached the final stages, when treatment is largely ineffective.
To address this problem, Owlstone Medical, a biotech company in England, has developed a breath test that can detect liver disease earlier than conventional approaches. Human breath contains volatile organic compounds (VOCs) that change in the first stages of liver disease. Owlstone’s breath test can reliably collect, store and detect VOCs, while picking out the specific compounds that reveal liver disease.
“There’s a need to screen more broadly for people with early-stage liver disease,” says Owlstone’s CEO Billy Boyle. “Equally important is having a test that's non-invasive, cost effective and can be deployed in a primary care setting.”
The standard tool for detection is a biopsy. It is invasive and expensive, making it impractical to use for people who aren't yet symptomatic. Meanwhile, blood tests are less invasive, but they can be inaccurate and can’t discriminate between different stages of the disease.
In the past, breath tests have not been widely used because of the difficulties of reliably collecting and storing breath. But Owlstone’s technology could help change that.
The team is testing patients in the early stages of advanced liver disease, or cirrhosis, to identify and detect these biomarkers. In an initial study, Owlstone’s breathalyzer was able to pick out patients who had early cirrhosis with 83 percent sensitivity.
Boyle’s work is personally motivated. His wife died of colorectal cancer after she was diagnosed with a progressed form of the disease. “That was a big impetus for me to see if this technology could work in early detection,” he says. “As a company, Owlstone is interested in early detection across a range of diseases because we think that's a way to save lives and a way to save costs.”
How it works
In the past, breath tests have not been widely used because of the difficulties of reliably collecting and storing breath. But Owlstone’s technology could help change that.
Study participants breathe into a mouthpiece attached to a breath sampler developed by Owlstone. It has cartridges are designed and optimized to collect gases. The sampler specifically targets VOCs, extracting them from atmospheric gases in breath, to ensure that even low levels of these compounds are captured.
The sampler can store compounds stably before they are assessed through a method called mass spectrometry, in which compounds are converted into charged atoms, before electromagnetic fields filter and identify even the tiniest amounts of charged atoms according to their weight and charge.
The top four compounds in our breath
In an initial study, Owlstone captured VOCs in breath to see which ones could help them tell the difference between people with and without liver disease. They tested the breath of 46 patients with liver disease - most of them in the earlier stages of cirrhosis - and 42 healthy people. Using this data, they were able to create a diagnostic model. Individually, compounds like 2-Pentanone and limonene performed well as markers for liver disease. Owlstone achieved even better performance by examining the levels of the top four compounds together, distinguishing between liver disease cases and controls with 95 percent accuracy.
“It was a good proof of principle since it looks like there are breath biomarkers that can discriminate between diseases,” Boyle says. “That was a bit of a stepping stone for us to say, taking those identified, let’s try and dose with specific concentrations of probes. It's part of building the evidence and steering the clinical trials to get to liver disease sensitivity.”
Sabine Szunerits, a professor of chemistry in Institute of Electronics at the University of Lille, sees the potential of Owlstone’s technology.
“Breath analysis is showing real promise as a clinical diagnostic tool,” says Szunerits, who has no ties with the company. “Owlstone Medical’s technology is extremely effective in collecting small volatile organic biomarkers in the breath. In combination with pattern recognition it can give an answer on liver disease severity. I see it as a very promising way to give patients novel chances to be cured.”
Improving the breath sampling process
Challenges remain. With more than one thousand VOCs found in the breath, it can be difficult to identify markers for liver disease that are consistent across many patients.
Julian Gardner is a professor of electrical engineering at Warwick University who researches electronic sensing devices. “Everyone’s breath has different levels of VOCs and different ones according to gender, diet, age etc,” Gardner says. “It is indeed very challenging to selectively detect the biomarkers in the breath for liver disease.”
So Owlstone is putting chemicals in the body that they know interact differently with patients with liver disease, and then using the breath sampler to measure these specific VOCs. The chemicals they administer are called Exogenous Volatile Organic Compound) probes, or EVOCs.
Most recently, they used limonene as an EVOC probe, testing 29 patients with early cirrhosis and 29 controls. They gave the limonene to subjects at specific doses to measure how its concentrations change in breath. The aim was to try and see what was happening in their livers.
“They are proposing to use drugs to enhance the signal as they are concerned about the sensitivity and selectivity of their method,” Gardner says. “The approach of EVOC probes is probably necessary as you can then eliminate the person-to-person variation that will be considerable in the soup of VOCs in our breath.”
Through these probes, Owlstone could identify patients with liver disease with 83 percent sensitivity. By targeting what they knew was a disease mechanism, they were able to amplify the signal. The company is starting a larger clinical trial, and the plan is to eventually use a panel of EVOC probes to make sure they can see diverging VOCs more clearly.
“I think the approach of using probes to amplify the VOC signal will ultimately increase the specificity of any VOC breath tests, and improve their practical usability,” says Roger Yazbek, who leads the South Australian Breath Analysis Research (SABAR) laboratory in Flinders University. “Whilst the findings are interesting, it still is only a small cohort of patients in one location.”
The future of breath diagnosis
Owlstone wants to partner with pharmaceutical companies looking to learn if their drugs have an effect on liver disease. They’ve also developed a microchip, a miniaturized version of mass spectrometry instruments, that can be used with the breathalyzer. It is less sensitive but will enable faster detection.
Boyle says the company's mission is for their tests to save 100,000 lives. "There are lots of risks and lots of challenges. I think there's an opportunity to really establish breath as a new diagnostic class.”