Feb 28, 2023 - Health

Lawmakers warn Biden on feds aiding anti-abortion investigations

Illustration: Allie Carl/Axios

Democrats in Congress are warning the Biden administration that federal agencies could be indirectly aiding state and local law enforcement investigations that could result in the prosecution of abortion providers and patients.

Driving the news: Sens. Ron Wyden (D-Ore.) and Mazie Hirono (D-Hawaii) and Rep. Sara Jacobs (D-Calif.) expressed concern that FBI and Department of Homeland Security resources could be used to help undermine access to reproductive care, according to a letter lawmakers sent Monday evening.

  • The assistance "could undermine our shared goals, providing support to state and local law enforcement that could be used to surveil and prosecute abortion," the lawmakers add.

Zoom in: The lawmakers do not cite any specific instances in which information-sharing led to a prosecution.

  • "There likely won’t be a 'smoking gun' or specific evidence of this happening. It could already be happening, but we don't know," a House Democratic aide told Axios.

The big picture: Federal agencies collect personal and digital data that state and local law enforcement can access, according to a letter by over 50 civil rights and abortion rights groups sent in December to the Biden administration.

State of play: A report from the Center for Democracy and Technology notes that the FBI has Regional Computer Forensic Laboratories — some located in states with abortion bans — that help police access relevant electronic data.

  • The FBI's National Domestic Computer Assistance Center was created to "facilitate the sharing of technical solutions and know-how among law enforcement agencies," helping police access phone data.
  • Each state also has at least one fusion center, which are "law enforcement hubs that stockpile and share data to aid state and local investigations," the report says.
    • While these centers were created following the 9/11 attacks to focus on counter-terrorism, a report from the Brennan Center found that many of their activities have no connection to terrorism.
  • "We're still in early stages of how exactly [anti-abortion] prosecutions and investigations are going to be carried out," said Jake Laperruque, deputy director of the center's Security and Surveillance Project.
  • The Biden administration has been vocal about protecting abortion rights in the U.S., so they might want to be "ahead of this issue" because they "don't want to be in a situation where ... there are cases where federal resources have been used to prosecute a woman for receiving an abortion,” Laperruque added.

What they're saying: "Right now, certain federal assistance administered through the FBI and DHS lacks clear guardrails to prevent local and state police from using these resources to surveil people, acquire digital evidence, and enforce abortion bans," Jacobs said in a statement to Axios.

Between the lines: Even if the Biden administration were to set policies on information-sharing, the rules could be reversed by a future administration.

Zoom out: Some states have enacted laws that block state agencies from assisting out-of-state investigations or legal proceedings around abortion.

  • State lawmakers in California and Washington have introduced bills that look to shield personal electronic data from being sought in state legal investigations.
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