Digital payments are the default for millions of women of childbearing age. So what will their credit and debit card issuers and financial app providers do when prosecutors seek their transaction data during abortion investigations?
It’s a hypothetical question that’s almost certainly an inevitable one in the wake of the overturning of Roe v. Wade last week. Now that abortion is illegal in several states, criminal investigators will soon begin their hunt for evidence to prosecute those they say violated the law.
Medical records are likely to be the most definitive proof of what now is a crime, but officials who cannot get those may look for evidence elsewhere. The payment trail is likely to be a high priority.
HIPAA — which governs the privacy of a patient’s health records — permits medical and billing records to be released in response to a warrant or subpoena.
“There is a very broad exception to the HIPAA protections for law enforcement,” said Marcy Wilder, a partner and co-head of the global privacy and cybersecurity practice at Hogan Lovells, a law firm. But Ms. Wilder added that the information shared with law enforcement officials could not be overly broad or unrelated to the request. “That is why it matters how companies and health plans are interpreting this.”
Card issuers and networks like Visa and Mastercard generally do not have itemized lists of everything that people pay for when they shop for prescription drugs or other medications online, or when they purchase services at health care providers. But evidence of patronage of, say, a pharmacy that sells only abortion pills could give someone away.
a new state law authorizes residents to file lawsuits against anyone who helped facilitate an abortion.
“With the ruling only coming down late last week, it’s premature to understand the full impact at the state level,” Brad Russell, a USAA spokesman, said via email. “However, USAA will always comply with all applicable laws.”
American Airlines Credit Union, Bank of America, Capital One, Discover, Goldman Sachs, Prosperity Bank USA, Navy Federal Credit Union, US Bank, University of Wisconsin Credit Union, Wells Fargo and Western Union did not return at least two messages seeking comment.
American Express, Bank of America, Goldman Sachs, JPMorgan and Wells Fargo have all announced their intentions to reimburse employees for expenses if they travel to other states for abortions. So far, none have commented about how they would respond to a subpoena seeking the transaction records of the very employees who would be eligible for employer reimbursement.