New legislation will protect digital menstrual health data, something advocates say is but one protection needed with abortion access left in states’ hands.
The amended legislation prohibits the search and seizure of menstrual health data from any digital device, including by subpoena or court order. Sen. Barbara Favola, D-Arlington, sponsored SB 16 and Del. Vivian Watts, D-Fairfax, introduced its companion HB 78.
Favola introduced the same bill last year, which passed the Senate with bipartisan support but died once it hit the Republican-backed House. This year, the measures narrowly cleared both chambers.
Technology such as phone apps are often used by women to track their cycle, regardless of intent to bear a child. Public scrutiny toward the apps grew after Roe v. Wade was overturned. Abortion became a crime in many states, and the concern is that menstrual data could be used to make a criminal case against a woman.
“I was very concerned as I saw state after state make very harsh changes in limiting abortions and going after people that they suspected were going to have an abortion or had an abortion,” Watts said. “That tracking of menstrual data would become one of those ways in which we would try to go after that kind of prosecution.”
Period tracking apps are typically not covered under privacy laws or HIPAA, the federal law restricting release of medical information, according to the fact-checking organization Politfact. The exception might be if the app bills for health care services. Otherwise, the data entered is also data that can be shared and sold.
For example, 79% of health apps available through the Google Play store regularly share user data, according to 2019 research published in the British Medical Journal.
The Virginia Consumer Data Protection Act allows individuals to opt out of personal data collection and have such data deleted by contacting the data company. The act was recently awarded an “F” grade by a privacy protection and technology organization.
Millions of women use period tracking apps. Flo, a popular period and cycle tracking app, has 43 million active users. Clue, another app, has 12 million monthly active users, according to NPR.
The legislation defines menstrual health data as any form created or received by a person or organization used to “determine, predict or estimate” menstrual health or status of an individual.
The bills are a proactive measure to enforce women’s reproductive rights in the event Virginia makes abortion illegal, according to Kelsey Cowger, press secretary at ProgressVA.
“These kinds of warrants around personal data have absolutely been … tried,” Cowger said. “And in some cases that data is appearing in court cases and things like that, that are charging women for having miscarriages.”
Senators on the committee panel questioned if the legislation was necessary, especially since abortion is legal up to 26 weeks in Virginia.
Sen. Mark Peake, R-Lynchburg, asked if Favola knew of any instances where menstrual information had been seized or subpoenaed in Virginia. Favola did not, but said the preventive measure was necessary.
The bill is “in search of a problem that does not exist,” Peake said.
Josh Hetzler spoke in opposition, on behalf of the faith-based advocacy group Family Foundation. A search warrant can only be issued upon probable cause that a crime has occurred, he said. Passage of the bill would mean that law enforcement could not pursue evidence of crimes such as forced abortions, or abortions on underage people.
“Now, we’re taking that out of the hands of law enforcement, so we think that is a really bad idea,” Hetzler said.
Women currently live in an uncertain environment where they are not sure when or if reproductive health care will be banned, according to RaeAnn Pickett, spokesperson for Planned Parenthood Advocates of Virginia.
There have been efforts to limit access since Roe was overturned, such as IVF bans, funding limits, and restricted access to birth control, Pickett said.
“I think that when people in Virginia realize that anti-abortion politicians really are coming for every aspect of their personal privacy, they will, what I hope, is stand up, make their voices heard and have the opportunity to vote on a constitutional amendment in 2026,” Pickett said.
The legislation will head to the governor’s desk. Gov. Glenn Youngkin voiced opposition to Favola’s bill last year, according to the Virginia Mercury. Watts believes, based on testimony given and the party line vote, that Youngkin will “probably” veto her bill.
Democratic lawmakers also recently passed bills to ensure access to contraceptives and also require health insurers to cover contraceptives approved by the Food and Drug Administration.
The House vote
The House passed both the Watts and Favola bills by the same 51-49 vote:
YEAS: Anthony, Askew, Bennett-Parker, Bulova, Callsen, Carr, Clark, Cohen, Cole, Convirs-Fowler, Cousins, Delaney, Feggans, Gardner, Glass, Hayes, Helmer, Henson, Hernandez, Herring, Hope, Jones, Keys-Gamarra, Krizek, Laufer, LeVere Bolling, Lopez, Maldonado, Martinez, McClure, McQuinn, Mundon King, Price, Rasoul, Reaser, Reid, Scott, Seibold, Sewell, Shin, Sickles, Simon, Simonds, Srinivasan, Sullivan, Thomas, Torian, Tran, Ward, Watts, Willett–51.
NAYS: Arnold, Austin, Ballard, Batten, Bloxom, Campbell, Cherry, Cordoza, Coyner, Davis, Earley, Ennis, Fowler, Freitas, Garrett, Gilbert, Green, Griffin, Higgins, Hodges, Kent, Kilgore, Knight, Leftwich, Lovejoy, Marshall, McNamara, Milde, Morefield, Oates, Obenshain, O’Quinn, Orrock, Owen, Phillips, Runion, Scott, P.A., Tata, Taylor, Wachsmann, Walker, Ware, Webert, Wiley, Williams, Wilt, Wright, Wyatt, Zehr–49.
The Senate vote
The Senate passed the Watts bill 22-18 and the Favola bill 22-17 with one member absent.
YEAS: Aird, Bagby, Boysko, Carroll Foy, Deeds, Ebbin, Favola, Hashmi, Locke, Lucas, Marsden, McPike, Pekarsky, Perry, Roem, Rouse, Salim, Subramanyam, Suetterlein, Surovell, VanValkenburg, Williams Graves–22.
NAYS: Craig, DeSteph, Diggs, Durant, French, Hackworth, Head, Jordan, McDougle, McGuire, Mulchi, Obenshain, Peake, Pillion, Reeves, Stanley, Stuart, Sturtevant–18.
Capital News Service is a program of Virginia Commonwealth University’s Robertson School of Media and Culture. Students in the program provide state government coverage for a variety of media outlets in Virginia.
