The Washington PostDemocracy Dies in Darkness

Youngkin opposes effort to shield menstrual data from law enforcement

Virginia Gov. Glenn Youngkin discusses his proposed tax cut at the Weinstein Jewish Community Center in Richmond on Jan. 23. (Shaban Athuman/Richmond Times-Dispatch/AP)
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RICHMOND — The administration of Gov. Glenn Youngkin (R) helped defeat a bill this week to put menstrual data stored on period-tracking apps beyond the reach of law enforcement, blocking what supporters pitched as a basic privacy measure.

Millions of women use mobile apps to track their cycles, a practice that has occasionally raised data-security worries because the apps are not bound by HIPAA, the federal health privacy law. New concerns arose after the Supreme Court gave states the right to ban abortion in June, with some abortion rights groups warning that the information could be used to prosecute women or doctors who violate a state’s restrictions on the procedure.

With Roe overturned, period-tracking apps raise new worries

S.B. 852, proposed by Sen. Barbara A. Favola (D-Arlington), would have prohibited search warrants from being issued for menstrual data stored on computers or other electronic devices. The measure sailed out of the Democratic-led Senate last week on a 31-9 vote, with every Democrat and half of the chamber’s 18 Republicans in support.

But a Republican-led House subcommittee voted along party lines Monday to “table” the bill — essentially killing it — after Maggie Cleary, Youngkin’s deputy secretary of public safety and homeland security, detailed the administration’s concerns that the measure could restrict subpoena powers.

“While the administration understands the importance of individuals’ privacy, we do oppose this bill,” she began. “This bill would be the very first of its kind that I’m aware of — in Virginia or anywhere — that would set a limit on what search warrants can do. … Currently any health information or any app information is available via search warrant. And we believe that should continue be the case.”

If approved, Cleary said, the bill would “ultimately open the door to put further limits on search warrants down the road, and that would be incredibly problematic.”

Abortion rights advocates on Tuesday cast the administration’s response as a harbinger of plans to prosecute people who receive abortions — an accusation Republicans batted down.

“The Youngkin Administration’s opposition to this commonsense privacy protection measure shows his real intentions — to ban abortion and criminalize patients and medical providers,” Tarina D. Keene, executive director of the abortion rights group REPRO Rising Virginia, wrote in an email.

Virginia law allows prosecutors to charge doctors who violate the state’s abortion restrictions, but not their patients. Some prominent Virginia Republicans who support tighter abortion restrictions have ruled out adding penalties for patients, including Attorney General Jason S. ­Miyares (R), in a speech last month at a March for Life event in Richmond, and House Speaker Del. Todd Gilbert (R-Shenandoah), in a statement issued Tuesday through spokesman Garren ­Shipley.

“Speaker Gilbert does not and will not support any legislation that prosecutes women for abortion,” Shipley said.

Youngkin, a potential 2024 presidential candidate who can be cagey on abortion and other issues, issued a similar statement through spokeswoman Macaulay Porter on Tuesday.

“The Governor will not support any measures that seek to prosecute women,” Porter wrote in an email to The Washington Post. “He’s focused on getting consensus for protecting life at 15 weeks, when a child can feel pain.”

The legislation Youngkin supported this year to ban abortion after 15 weeks, which did not advance in the House or Senate, did not include penalties for patients.

On abortion, Gov. Youngkin says he’ll sign ‘any bill ... to protect life’

The House has yet to act on another Senate bill, brought by Sen. Scott A. Surovell (D-Fairfax), that would prohibit the sale or dissemination of menstrual data to third parties without the consumer’s consent. Surovell said that measure, S.B. 1243, would not prevent disclosure to law enforcement.

Surovell’s bill would prevent the governor from extraditing someone who obtains legal abortion services in Virginia to a state that seeks to prevent its citizens from going out of state for procedures banned at home.

Cleary made no mention of abortion as she addressed a subset of the House Courts of Justice Committee on Monday. Nor did Favola, who summed up her bill very simply: “It’s intended to keep very personal health data personal.”

In an interview Tuesday, Favola said it was “very disappointing” that after clearing the Senate with strong bipartisan support, the bill failed once Cleary “stands up and says, ‘Oh, we don’t want to limit search warrants.’”

“This is a search warrant for menstrual-health data that may be kept on an app,” Favola said. “I don’t think anybody has any business knowing that data other than the woman who is tracking it — period. That’s why I put my bill in. It should not be used to prosecute women. It should not be used for any reason. It should not be accessed.”

Del. Rob Bell (R-Albemarle), the chairman of the House Courts of Justice Committee and a former prosecutor, said Tuesday that the bill would have broken with long-standing legal practice in Virginia.

“We don’t have carve-outs for other things — search warrants can be for entire medical records, they can be for a person’s blood, they can be for an entire computer hard drive,” Bell said. “We don’t have carve-outs for specific search warrant exceptions.”

Bell said that while tabling the bill might theoretically leave the door open for reviving it, he did not anticipate that it would come back up. He declined to comment on accusations from Democrats that Republicans anticipate using menstrual information in eventual abortion-related prosecutions of women.

“I understand that people are saying that,” Bell said. “Everybody has their descriptions of the bill. But … putting specific restrictions on what a search warrant can do is not something we’ve done in any other context and we didn’t think it was appropriate to do it here.”