Some observers believe everything from gossip, to ride share app records, to credit card statements, internet search histories and more could be used to prosecute Tennessee abortion providers when the state’s near-total ban goes into effect Aug. 25.

Privacy was what protected abortion rights under Roe v. Wade. When the Supreme Court returned control to the states in its June Dobbs v. Jackson Women’s Health Organization ruling, it said abortion isn’t a private decision.

Criminal defense attorneys say privacy rights — from contraception to interstate travel — could be further eroded. They expect years of litigation to answer questions about the patient-doctor relationship, medical records, free speech and what counts as life-threatening.

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Tennessee’s ban is not structured in the same way as Texas’ “vigilante” law, which offers citizens a cash reward if they succeed in a civil lawsuit against someone for helping someone else get an abortion. Tennessee’s ban subjects providers, not patients, to a felony, but many expect the state’s prosecutors to find out about abortions in a similar way.

“The Texas model really relies on Orwellian levels of snitching,” said Mike Working, a criminal defense attorney in Memphis and past president of the Tennessee Association of Criminal Defense Attorneys.

Ultimately, Working said, prosecutors will find out about abortions because of patients “being told on by someone who knows you’re pregnant.”

Where Weirich and Mulroy stand

While many big-city prosecutors, including Glenn Funk in Nashville, have said they won’t prosecute abortion providers, Shelby County District Attorney General Amy Weirich hasn’t said how much of a priority the ban will be if she wins reelection.

On “Behind The Headlines” in early July, she avoided a question about whether she would pursue those cases.

“We don’t look forward to prosecuting anyone for any type of crime in Shelby County,” she said.

Weirich, a Republican, said she was certain there would be more lawsuits about the trigger law, including over who, if anyone, investigates before the case lands in the DA’s office.

“There are still a lot of unknowns,” she said. “It’s very fluid in terms of who has jurisdiction and authority — whether it comes through the health department, state departments, those types of organizations or law enforcement.”

Another factor is the possibility that if a DA declines to prosecute a particular crime, the state attorney general could send in a special prosecutor.

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“It is a dangerous path for a DA to make broad and hypothetical statements without an actual charge or case before them,” Weirich’s spokesman said in an email. “To do so violates Tennessee Code Annotated 8-7-106 which requires a DA to consider the unique facts and circumstances of a particular case.”

Prosecutors would be the ones to investigate, according to the office of Tennessee Attorney General Herbert Slatery, suggesting state and local health departments wouldn’t be involved.

“Original criminal jurisdiction is with the local district attorneys,” Samantha Fisher, Slatery’s spokeswoman, stated in an email. “They would be the ones in Tennessee to potentially investigate and bring criminal charges.”

Slatery’s and Weirich’s spokespeople didn’t answer questions about the role of police, what medical records prosecutors could access, how health privacy laws would come into play or what an abortion patient would have to provide.

Steve Mulroy, Weirich’s Democratic challenger, could not be reached for comment. Mulroy has said he would make abortion prosecution an “extremely low priority,” stopping short of an absolute refusal to prosecute the crime.

Privacy ‘ends where harm to others begins’

The right to abortion followed the right to privacy.

The Supreme Court ruled in 1965 that states couldn’t ban contraception for married couples because doing so was a violation of marital privacy. The court expanded that privacy right eight years later in Roe, saying the right to contraception extended to abortion.

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In Dobbs, the court ruled privacy isn’t a right when one’s actions harm another, and that a fetus is a person being harmed.

“Privacy and autonomy guard a sphere over which the individual is sovereign, and which ends where harm to others begins,” wrote Notre Dame law professor Sherif Girgis, a former clerk for Justice Samuel Alito, who wrote the majority opinion. “But abortion directly harms a non-consenting party — or rather, it’s rational, and so permissible, for states to think so.”

Health privacy laws generally prevent disclosure of medical information without the patient’s consent, but they don’t stop law enforcement from accessing many records.

President Joe Biden’s recent executive order on reproductive health access seeks to strengthen the Health Insurance Portability and Accountability Act (HIPAA), the main health privacy law, among other things. The Biden administration also recently issued guidance to doctors, telling them they are protected by federal law if they provide abortions in cases of medical emergencies.

Chloe Akers, a criminal defense attorney in Knoxville, said medical records can become available “under certain limited circumstances.”

Working went a bit farther.

“There is no privacy law that can prevent a prosecutor from subpoenaing a record,” he said.

Akers and Working said prosecutors can subpoena Google search history, bank statements, providers’ financial records, Uber ride history and data from menstrual period-tracking apps to prove their case.

She said Tennessee’s abortion ban is “horribly written,” and “entirely ambiguous and unclear.”

The law allows abortions if it is “necessary to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman” — but doesn’t define “necessary,” “serious risk” or other terms.

“Those definitions are absolutely critical to how the affirmative defense will have to be presented,” she said.

Akers, Democratic lawmakers and others have said they’ve heard of doctors, unsure what care they can provide, calling lawyers in the middle of treatment — when decisions need to be made in a matter of moments.

Immediately following the Dobbs decision, Akers started putting together a nonprofit legal resource center, Standing Together Tennessee, to help providers understand what’s allowed.

“These providers need to understand the ambiguity in order to be able to do their job,” she said.