Youngkin administration opposes shielding menstrual app data from search warrants

Photo by Priscilla Du Preez on Unsplash

By Graham Moomaw, The Virginia Mercury

February 14, 2023

by Graham Moomaw, Virginia Mercury

A proposal to put menstrual data stored on period-tracking apps beyond the reach of Virginia authorities failed in the state House of Delegates Monday after Gov. Glenn Youngkin’s administration expressed opposition to the idea for the first time.

The legislation, which had passed the Democratic-controlled Senate with bipartisan support, was backed by abortion rights supporters who see it as a way to ease a privacy concern that arose from the fall of Roe v. Wade last year. Supporters of the bill said it would remove any possibility that data stored in menstrual apps could be used in abortion-related prosecutions.

Addressing a House subcommittee Monday afternoon on Youngkin’s behalf, Deputy Secretary of Public Safety and Homeland Security Maggie Cleary warned legislators that the proposed law appeared to be the first of its kind limiting what information Virginia courts can deem relevant enough to potential criminal cases to authorize warrants to obtain.

“Currently, any health information or any app information is available via search warrant,” Cleary said. “We believe that should continue to be the case.”

In response, Sen. Barbara Favola, D-Arlington, the bill’s patron, suggested menstrual information is uniquely sensitive and should be treated accordingly.

“There’s very little information that is as personal and private as your menstrual data,” Favola told the subcommittee before her bill was defeated 5-3 along party lines.

A legislative staffer told the committee information stored in the apps is not covered by HIPAA, the main federal privacy law protecting health information, because users only store information in them and they don’t involve the provision of health care services.

The Democratic Party of Virginia seized on Cleary’s comments, issuing a statement shortly after the vote calling it “exceptionally disquieting to see Governor Youngkin oppose a bill that would protect women from having their private health data weaponized against them in a court of law.”

“Governor Youngkin’s eagerness to imprison women and doctors for seeking and providing reproductive care is a dangerous step,” said DPVA spokesman Liam Watson.

As they push for stricter abortion restrictions, Republican leaders in Virginia have repeatedly said they don’t intend to prosecute women for abortion, which in the commonwealth remains legal and largely unrestricted in the first and second trimesters of pregnancy but is banned in the third trimester unless there’s a dire threat to the mother’s health. Current Virginia law also criminalizes “partial birth infanticide” and prohibits the promotion of illegal abortions that don’t adhere to medical regulations governing when, where and how the procedures can take place.

Though Republicans have been unable to pass tougher abortion laws and the enforcement practices that could come with them, Youngkin’s office has said he would not sign legislation “which imprisons women.” In a speech at the anti-abortion March for Life in Richmond last month, Attorney General Jason Miyares also said prosecuting women over reproductive choices is “not right.”

In a statement Monday, Youngkin spokeswoman Macaulay Porter accused Democrats of misrepresenting the administration’s reason for opposing the bill shielding menstrual data from search warrants.

“Democrats are deliberately distorting the problems with this bill to distract Virginians from the fact that they chose again today to stand with fentanyl dealers over victim’s families,” Porter said, referring to Senate Democrats’ vote to block a Youngkin-backed bill that would have allowed drug dealers to be prosecuted for felony homicide if their drugs led to a fatal overdose.

Virginia law states search warrants can be used for “any object, thing, or person, including without limitation, documents, books, papers, records or body fluids, constituting evidence of the commission of crime.” The law lays out specific procedures for when search warrants can be issued for lawyers’ offices and when tracking devices can be used, but doesn’t include exceptions for health-related information.

The Republican-led subcommittee that blocked the bill didn’t spend much time discussing it.

“What age group are these apps targeting?” asked Del. Margaret Ransone, R-Westmoreland.

“I cannot answer that,” Favola said. “Anybody might have access to an app.”

A similar Democratic bill that would prohibit period-tracking apps from selling or disseminating reproductive data without users’ permission is currently pending in a House committee after passing the Senate. That bill would also prohibit Virginia authorities from extraditing people charged with abortion-related crimes in other states unless the alleged offense is also considered a crime in Virginia.

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