The first two sentences of the abstract for Leah R. Fowler’s & Michael R. Ulrich’s Femtechnodystopia are stunning but accurate: “Reproductive rights, as we have long understood them, are dead. But while history seems to be moving backward, technology moves relentlessly forward.” (P. 1233.)
The law often trails behind technology, especially reproductive technology. Femtechnodystopia focuses on fertility awareness-based contraception and proception apps and how these apps, which can enable users to take control over their reproductive lives, can, in a post-Dobbs world, be (legally) dangerous to users. After discussing the many benefits and perils of Femtech, Professors Fowler and Ulrich argue that there are three key criteria that Femtech must satisfy in order to avoid a potential dystopian future: “apps must be accurate, the data they contain must be kept private and secure, and the consumer must be aware of their risks and limitations.” (P. 1240.)
Part I of the article is divided into two sections. Part I.A discusses the lead-up to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health. This section includes a discussion and analysis of cases related to many longstanding bioethical issues, including the reduced autonomy of pregnant people, fetal personhood, and reproductive rights more broadly. In addition to addressing the leadup to Dobbs, the article discusses potential future areas of litigation that have received attention lately, including the Comstock Act of 1873 and the Supreme Court’s increasing deference to religiously-based objections to the provision of healthcare. The authors write that “If Hobby Lobby walked so Zubik and Little Sisters of the Poor could run, Dobbs is sprinting to usher in an even more aggressive era of restrictions.” (P. 1247.)
Part I.B discusses the potential benefits of Femtech like fertility and period trackers, including their ability to enhance reproductive autonomy. The authors note that more individuals may turn to Femtech to meet menstrual and reproductive health needs as access to reproductive care declines in the U.S. This section also explains the U.S. Food and Drug Administration (FDA) regulatory scheme that applies to the apps. Notably, proceptive apps that “identify fertile days, so long as they do not claim the user can rely on this information from contraceptive purposes,” benefit from FDA enforcement discretion. (P. 1238.)
Part II, “Femtech’s Dystopia,” turns to the many perils of Femtech, including the possibility that the apps may be insecure or that the information shared with or generated by them may be introduced against users in civil and criminal legal proceedings. Moreover, Femtech apps, like many other apps, generate data that may be sold to other companies. One of the studies cited by the authors includes a 2014 estimate that “a pregnant person’s data are worth fifteen times that of the average person.” (Pp. 1265-66.
Beyond legal dangers, the apps themselves can be ineffective and lack extensive privacy protections. Additionally, many mobile health apps do not permit individuals to delete their data.
The authors note that individuals often find these apps through various sources, including magazine lists of the “best” tracker apps. While some of these sources discuss the apps’ limited effectiveness, they are far less likely to mention the privacy risks.
Ultimately, the authors do not recommend that users abandon these applications. Instead, Part III of the article provides many creative solutions to the issues facing period and fertility tracking apps after Dobbs. The authors acknowledge the limitations of their proposed solutions, including the practical difficulties Congress or administrative agencies like the FDA or the Federal Trade Commission would face in mandating changes. Rather than relying only on top-down changes, the authors identify options that app developers could implement themselves, along with an explanation as to why these changes would be helpful to users. They also alert readers to alternative apps, some of which were created abroad and have stronger privacy protections than some of the more well-known Femtech apps.
As technology permeates our lives, it is worth continually revisiting the authors’ caution: “Technology in a world with an anemic right to privacy endangers everyone.” (P. 1313.)
