A hearing was held Tuesday by the Michigan Senate Housing and Human Services Committee on legislation that would require a person’s informed consent before their reproductive health data can be collected.

Senate Bill 1082 was introduced by state Sen. Mallory McMorrow (D-Royal Oak) on Nov. 7, two days after the election that will return President-elect Donald Trump to the White House in January. It also marked the end of Democrats’ two-year control of state government as Republicans regained control of the Michigan House. The Legislature is only in session for a few weeks before starting a new session in January.

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Democratic Gov. Gretchen Whitmer said Michigan Advance in October that the legislation was a priority for her.

“I think there’s a wide world of data that’s being collected about us that the average person doesn’t know about,” McMorrow told reporters after the hearing. “I think this is, at least in my mind, how we can begin to look at how we protect the data of Michigan residents in an issue area that is, No. 1, highly sensitive, highly personal and highly charged right now . Given the political environment, a new administration coming into the White House, we’re not sure what’s going to happen there, and (and) we can start to hope, if this goes well, that we become a model for how we protect consumer data . it refers to everything else.”

The bill seeks to enact the “Reproductive Health Data Privacy Act,” which would, among other things, prohibit the collection or processing of an individual’s reproductive health data without obtaining their informed consent, which would include providing privacy information and specified purposes. the data would be used for.

In testimony to the committee about her bill, McMorrow said the prevalence of digital devices and the personal information we hand over to them, often unwittingly, was something that was of great concern.

“How many of us have a smart watch or fitness tracker? I have one myself,” she said, raising her wrist. “While it’s primarily a running watch, this little thing does so much more,” said McMorrow, noting that it can track her stress levels and water intake, as well as offer the option to track menstrual cycles.

“Period tracking apps have become extremely popular over the past few years as women look for more ways to take control of their reproductive health,” she said. “I used one when my husband and I decided we wanted to start trying for a baby, and found it very helpful in making that plan happen in the global pandemic.”

However, McMorrow said that as the public puts more of their health and personal data into their phones, watches and digital services, it could change their personal privacy because the data in question isn’t necessarily secured behind the scenes. federal patient privacy protections and may be sold or distributed without consumer permission.

McMorrow pointed to a study earlier this year by King’s College London which found that 20 of the most popular women’s health apps put women at risk by forcing them to reveal highly sensitive data with very few safeguards, including a lack of a feature to delete menstrual cycles and miscarriages, leaving users vulnerable to possible actions by law enforcement. in areas where abortion is illegal.

This is a key concern for many women since the US Supreme Court overturned Roe v. Wade in 2022, which provided a federal right to abortion for 50 years. However, after Roe came down, it became clear that digital data could be used by states like Texas prosecuting residents seeking abortions out of state.

Whitmer has spoken about the need to regulate reproductive health data since Roe was overturned and tthe old Advance last month that she was eager to sign such a bill.

“We know there are all kinds of ways that our data is misused or weaponized and used against people,” Whitmer told the Advance. “I think it’s a very real concern that Michigan women and people who use data apps, like for period tracking, etc., have privacy protections.”

In her testimony, McMorrow pointed to the 2015 conviction of an Indiana woman who was sentenced to 30 years in prison for feticide after prosecutors used her text messages and Google search history to convict her of using abortion drugs and , subsequently gave birth to a stillborn fetus. Sentencing was later annulled by the court of appeal of the respective state that governed Indiana’s feticide law was not intended to prosecute women for their own abortions.

“This legislation is crucial to protecting Michigan’s reproductive health data, establishing clear regulations for the collection of such data and ensuring that data cannot be sold or shared without users’ express permission and prohibiting companies from targeting them with advertisements, messages or collections. information when they’re near doctors’ offices or women’s health clinics,” McMorrow said.

Cody Venzke, senior policy adviser for the ACLU’s National Policy Advocacy Division, testified in favor of the measure. Venzke said the main protection in the bill was through the data minimization requirement.

“Data minimization means limiting our collection and use of data to what is necessary to provide the services we request. If you allow a mapping app access to your geographic location to provide directions, under data minimization, (entities) will be prohibited from using that data to secretly identify which health clinics you have visited,” he said. “Similarly, if we provide body statistics to a fitness tracker, it will not sell them through a data broker. Under this bill, Michigan residents can be confident that the data they provide for support services is used only for those services.”

One of the key items discussed at the hearing was the use of geofencing, a process where an individual’s cellular data is tracked within specific geographic boundaries and then used to target advertisements to digital devices.

“How often have you seen ads on your phone, maybe in an article you’re reading, that seem uniquely tailored to where you are?” McMorrow asked the committee. “Women have already been targeted with specific ads and messages only when they are in or near women’s health clinics.”

That prompted concerns from state Sen. John Damoose (R-Harbor Springs) about the potential violation of free speech rights.

“Are we not proposing to this bill that if you’re a woman who happens to drive within a mile of an abortion clinic, I’m no longer allowed to advertise to you?” he said. “I mean, could a church get caught up in that, a church that runs an ad because it might be a pro-life church or something, which I think falls under a First Amendment consideration .”

McMorrow said the bill’s language is limited to 1,850 feet of the perimeter of the physical location in question and is specifically tailored for organizations that collect and use reproductive health data to target an individual seeking reproductive health care.

“So in your example, if you’re a church within that limit and you’re just advertising for a church, that wouldn’t fall under those guidelines and would be exempt,” she said.

Elisabeth Smith, director of state policy and advocacy at the Center for Reproductive Rights, also testified in favor of the legislation.

“Organizations that collect this information to provide services would be prohibited only within a small perimeter from providing targeted ads in three specific circumstances; if they identify and track people, if they collect data from those individuals and if they then send notifications, messages or advertisements,” she said.

“So I would be allowed to run my pro-life ad in an area around an abortion clinic, as long as I didn’t collect data about a specific person in connection with it?” Damoose said.

“If you don’t fit the bill’s definition, then none of your conduct will be covered by the bill,” Smith said.

McMorrow’s legislation would also prohibit the disclosure of an individual’s reproductive health data to a government agency or official unless the entity has been presented with a legal warrant.

“This is critical language because what we’ve seen in research is that pregnancy outcome prosecutions, in almost half of the circumstances, come from information provided to law enforcement when there’s no warrant, when there’s been no specific process. , but the information is only provided,” Smith said.

The committee did not vote on the bill at the conclusion of testimony, with McMorrow indicating there would likely be some changes based on what they heard Tuesday.

“We just introduced this legislation last week. We’ve had a lot of interest and a lot of questions, so working with the president and my team, we want to make sure we have a full bottom line that takes people’s feedback into account, but it’s been overwhelmingly positive. We’ve had no opposition from any group, just a lot of questions and we want to make sure we get it right,” said McMorrow, who also noted that time is not necessarily on their side.

“Given that it’s a lame duck and we’ve got a couple of weeks left, we’re trying to roll with what we can and get it done,” she said.

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