Industry Voices—The crumbling bridge of reproductive rights: Is femtech next?

Women’s reproductive rights have long stood at the center of a crumbling bridge. The wooden boards creaked. Some had already splintered into the abyss, so deep that no one heard them land. The rope handrails had begun to unravel, long past the point of fraying. It was a rickety but passable route on the long journey to equality and autonomy.

The trek to the bridge has been a long one. Built on unpaved roads, across steep inclines and deadly descents, women’s health activists have long fought for the privilege of understanding and controlling their own bodies. Over the past decade, activists and entrepreneurs have banded together to create the foundation for modern women’s health care, with the resulting female health technology (femtech) industry as a testament to their success.

With an expected valuation of $50 billion by 2025, the femtech industry prioritizes female wellness and seeks to revolutionize care delivery for women using digital health solutions. Currently, millions of women worldwide use femtech products—such as period tracking applications (apps), fertility and ovulation predictors, maternal wellness guides and menopause support apps—to derive actionable health insights. (Flo, which is just one period tracker on the market, has over 100 million users.) The support, education and clinical interventions tailored to women’s anatomy contribute to long-term women’s health research and serve as a crucial step toward rectifying a culture of exclusion.

It was a path of promise and innovation in a society otherwise content with neglecting women’s health. Yet on June 24, 2022, the U.S. Supreme Court dismantled the bridge’s final remaining boards, setting women’s health care back almost 50 years.

The Supreme Court’s abortion decision is only the latest affront to women’s rights and health, but it has the power to stifle the burgeoning health insights and innovations associated with women’s health. It is a spark that sets the bridge ablaze and forces women’s health to chart an alternate, longer path around the crevasse just to reach the other side. Indeed, the consequential unraveling of women’s health innovation has already begun.

The loss of federal reproductive rights has caused women to cease using their femtech apps. Women fear that their health data could be obtained and used by law enforcement to prosecute them for unlawful abortions. They aren’t wrong. The privacy policies of many femtech apps permit the disclosure or sale of health information downstream to industry partners, researchers and data brokers. In fact, a location data firm recently sold data related to abortion clinic visits, including how long individuals stayed at the clinic, where they came from and where they went afterward.

Most privacy policies also allow the disclosure of data to law enforcement officers upon request or when presented with a subpoena. Law enforcement officers who can’t obtain a subpoena may nonetheless acquire the same information through data brokers by paying a small fee. This reproductive health data could serve as evidence of an intent to commit an abortion. When using these apps for autonomy and empowerment, women do not suspect that their own data could be used against them in a court of law.

This fear actively discourages women’s use of femtech products and stifles innovation in an emerging industry. If consumers are afraid to use the very applications that are intended to transform women’s health care, there is no longer a foundation for women’s health technology. The mistrust instilled by reversed rights has the potential to repress future advances in women’s health care, as women must weigh their desire for tailored health solutions against the potential for criminal action. It means women must fight for basic access and control rights rather than contributing insights to long-term women’s health research.

Further, fewer users of femtech apps means less diverse data, which may promote health inequities. This result is directly at odds with the purposes of the femtech industry, which are to enhance women’s health solutions, empower change and improve access to care. Specifically, in the U.S., research studies show that the abortion rate for African American women is nearly four times higher than the abortion rate for Caucasian women. In many states with trigger laws (i.e., laws banning or criminalizing abortion that go into effect with the overturning of Roe v. Wade), African American and Hispanic women constitute a large percentage of overall abortions. These populations will be disproportionately impacted by the changing abortion landscape and may be more inclined to remove their health data from femtech apps. If this occurs, femtech algorithms will be trained on less diverse data, which can result in inaccurate health predictions for minority populations. It also means that any data collected by femtech apps for long-term women’s health research will not be reflective of the entire female population. This may lead to imprecise and unreliable solutions to common women’s health diseases for the excluded populations—another result at odds with the foundational principles of femtech.

Finally, this change in federal abortion protection will exacerbate health inequities based on race and income. Embracing digital health as its foundation, femtech brings specialized healthcare insights, tracking and solutions to users regardless of physical location. These users—especially those located in rural or impoverished areas—may not otherwise be able to afford or access specialty women’s health services, such as fertility counseling. Femtech universalizes healthcare access to all women regardless of location, race, or income. However, the fear associated with the new abortion climate could encourage lower-income users—particularly those located in trigger states—to abandon their femtech apps without being able to access comparable services. This results in decreased education and healthcare access and creates negative healthcare outcomes for women.

This means reproductive rights were not alone on the crumbling bridge. Femtech stood beside it, anxious to innovate and push forward through the blaze, but now falling into the abyss.

There is no easy solution in this climate of fear and change. Women must act within their comfort zone for femtech, but with the realization that innovation may be thwarted, and long-term harm may befall women’s health. For their part, femtech apps must adopt stricter privacy and security protocols and policies to protect consumer data and help re-instill trust in the femtech promise.

Bethany A. Corbin, senior counsel at Nixon Gwilt Law, is an experienced femtech, healthcare innovation and privacy attorney. She advises healthcare and pharmaceutical clients including femtech, digital health, medtech, life sciences and virtual care businesses on matters relating to regulatory compliance, reimbursement, and customer and partner transactions.