Hotel companies have started to examine their data-tracking practices and are preparing for potential subpoenas from prosecutors and law enforcement looking for information about guests who book overnight stays as they seek procedures outside their home states, according to hospitality and privacy lawyers.
Lindsay Harrison of Jenner & Block LLP, a litigator in the firm's appellate and Supreme Court practices as well as leader of its hospitality industry group, said authorities may ask hotel companies for data about who their guests were, how long they stayed in a room, and what hotel managers observed on security videos.
"As abortion laws are now going to vary from state to state, people will be forced to cross borders to obtain reproductive care," said Harrison, who counts Marriott International Inc. as a client. "If states want to target their neighboring states or companies for facilitating that travel and that care — aiding and abetting what is in that state a crime — hotels really have to be mindful that they might receive requests for evidence that people are using their hotels as part of a scheme to go across state lines to get an abortion."
Hotels May Be Viewed as Crime Scenes
Tennessee, for example, virtually outlawed abortion with a "trigger ban" that went into effect on Aug. 25 following the high court's June 24 decision in Dobbs v. Jackson Women's Health Organization
, the controversial ruling that overturned Roe. That means that a pregnant woman living in Chattanooga who wants to get an abortion might search Planned Parenthood's national website and learn that she can drive up to Columbus, Ohio, for legal abortion pills available there.There's a catch: Ohio requires that individuals seeking an abortion must first attend a state-directed information appointment in person, wait 24 hours, and then go back for another appointment to begin the two-step medication procedure.
Because it takes about eight hours to drive from Chattanooga to Columbus, it's likely that a hotel stay would be involved in this hypothetical woman's plans, since she might decide that it's safer and easier to spend a couple of nights in Ohio when taking the first pill before driving home to take the second pill.
But by taking the second pill in Tennessee, she will have broken the law in her home state, which prohibits abortion at all stages of pregnancy. And if the state prosecutes her for terminating her pregnancy, it may decide to track down evidence of her crime at the hotel where she stayed while taking the first pill, lawyers say.
Hotel companies should consider how they will respond to subpoenas that demand corroborative data about guests who are suspected of getting illegal abortions, according to Harrison's colleague Shoba Pillay, a co-chair of Jenner & Block's data privacy and cybersecurity practice who was previously a lawyer in the U.S. Attorney's Office for the Northern District of Illinois.
In cases where prosecutors suspect a person of traveling to obtain abortion medication or an illegal abortion procedure, Pillay said, they may subpoena hotels to get corroborative records.
"If I'm at a hotel chain, a prosecutor might serve a subpoena on the hotel or parent company, saying, 'I want all the records for anybody who stayed at this hotel from Sept. 1 to Sept. 8, 2022,'" Pillay said.
As a result, she said, hotel companies must be sensitive to the vast quantities of personally identifiable information they collect when guests open hotel apps and turn on location services to find a hotel while traveling.
Pillay noted that California and New York have passed blocking statutes, whereby companies based in those states are not obligated to respond to other states' requests for records involving a legally obtained abortion.
Beyond the Hypothetical
As state laws change — as of mid-November, more than a dozen states have banned abortions — hotel stays while traveling to obtain an abortion are no longer just a hypothetical possibility.
According to a July 21 analysis by the reproductive health nonprofit Guttmacher Institute, nearly one in 10 people seeking an abortion traveled across state lines, even before Roe was overturned. Since the Dobbs ruling, the rising number of abortion restrictions are forcing many more people to travel out of state and for longer distances to get care, Guttmacher reports.
"In the 26 states considered certain or likely to ban abortion in the wake of the Supreme Court's decision, 15% of residents obtaining abortions traveled out of state for care in 2020; of these 15%, almost half (46%) traveled to states that have now banned or severely restricted abortion or are likely to do so," Guttmacher said.
Pillay and Harrison said they haven't yet seen any instances of hotels getting hit with subpoenas or lawsuits by state attorneys general, noting that states are still trying to figure out how they want to enforce their new post-Dobbs abortion laws.
Vijay Dandapani, president and CEO of the Hotel Association of New York City, said none of the trade group's 275 members have reported getting served with subpoenas. But Dandapani predicted that some states will receive tips from confidential sources about specific individuals and seek to make an example of them to achieve their political or social goals.
"It's hard to figure out who crossed state lines. It's going to be a gargantuan task for these states to figure out," Dandapani said. "You can't do a blanket subpoena. People are going to be traveling from obviously affected states like Texas. Which hotel are you going to target? It's a heavy road for states to go down. That doesn't mean they're not going to try it, but it's very tough."
Meanwhile, targets of subpoenas outside the hospitality industry have already started to hit back against zealous attorneys general.
Several nonprofit abortion funds and an OB-GYN are suing Texas Attorney General Ken Paxton for threatening to stop them from traveling across state lines to provide legal abortion services. And an Indiana abortion provider who drew scrutiny from Indiana Attorney General Todd Rokita for treating a 10-year-old rape victim has sued him to block him from subpoenaing her patients' medical records.
Paxton's office did not respond to a request for comment. Rokita could not be reached immediately for comment.
"The Equivalent of an Underground Railroad"
Harrison said her hospitality clients and everybody else in the hotel industry are currently preparing to deal with what she called "the beginning of a new era." Hotels must look at their policies for responding to subpoenas from law enforcement, and consider what information they're willing to turn over versus what information they will fight to keep confidential, she said.
"Do they scrutinize subpoenas, or do they cooperate without any questions? You obviously want to comply with the law and you don't want to be subject to criminal prosecution," Harrison said. "But you don't want to unwittingly assist a state in prosecuting your guests and find yourself in the middle of a massive cultural fight."
Jennifer Dukarski, a Butzel Long lawyer based in Ann Arbor, Michigan, who focuses her practice on the intersection of technology, communications and data privacy, advises hotels to keep a close eye on the "patchwork quilt" of fast-changing state laws and regulations in the post-Dobbs world.
Dukarski pointed to South Carolina Senate Bill 1373, a measure that would make it a crime to "aid, abet, or conspire with someone to procure an abortion" via phone or the internet. Although the bill didn't advance out of committee, she said, it is based on a model law from the National Right to Life Committee, which is looking to introduce it in other states.
The NRLC's website provides a link to the model law written by attorneys at The Bopp Law Firm PC, based in Terre Haute, Indiana.
"We recommend prohibitions on (A) performing an abortion except to prevent the death of the pregnant woman, (B) conspiring to cause, or aiding or abetting, unlawful abortions, (C) trafficking in abortion inducing drugs, and (D) unlawful abortion trafficking of a minor, all enforced by criminal penalties," according to the model.
An NRLC spokesperson said Wednesday that the pro-life organization is unaware of any states that have adopted its model law, saying the model was introduced on July 4 between legislative sessions. She added that the NRLC opposes the criminalization of women and has joined with more than 70 pro-life groups in urging state legislators to reject legislation and policy initiatives that would impose criminal penalties on women who have abortions.
Dukarski also pointed to Senate Bill 8 in Texas, a controversial abortion ban that took effect on Sept. 1, 2021, after the U.S. Supreme Court denied an emergency request to block it. The law bars abortions after a fetal heartbeat is detected, usually measured at about six weeks into a pregnancy. It delegates enforcement of the ban to private litigants, who can collect $10,000 or more in damages whenever they prevail in a lawsuit against somebody who violates the law's provisions.
According to the Center for Reproductive Rights, approximately 85% to 90% of people who obtain abortions in Texas are at least six weeks into pregnancy, "meaning this law will decimate abortion access in the state."
A state-sanctioned award system opens up a world of uncertainty and risk for the hospitality industry, Dukarski said. She added that S.B. 8 poses liability challenges because the law says it will prosecute third parties who provided support for abortions even if those third parties didn't know they had helped somebody violate the abortion ban.
"When you open a law up to an individual's private right to report an Uber driver who you think took someone to an abortion, or to challenge a desk clerk at a hotel who gave the address of a clinic, that's where you start bumping into the unknown," Dukarski said.
Hotel websites, too, are prohibited from aiding and abetting abortions under some laws, she said.
"The question may become: Is your hotel website illegal in certain states when your site is used as a conduit to the equivalent of an underground railroad?" Dukarski said. "Sure, it's most likely that they'll just subpoena you for information, but to the degree that your site either directly encourages or even facilitates efforts to obtain an abortion, there is a risk."
New Laws Mean New Liability Risks for Employers
For hotel chains, aiding and abetting liability also touches on the impact that states' anti-abortion laws could have on their workers, according to Pillay, who is a co-chair at Jenner & Block's post-Dobbs task force.
She said many companies, including those in the hospitality industry, began to issue policies covering travel expenses for employees earlier in 2022 after a leaked memo from Supreme Court justices previewed their decision on the Dobbs case.
"A lot of companies have publicly said they will pay for employees' travel benefits," Pillay said. "That sounds innocuous, but what it really means is that the company is going to ensure that if they have an employee base in Texas, and a Texas employee has to go to California to get an abortion procedure, the company is going to pay for them to travel from Texas to California, then home."
But that's where the risk lies, Pillay warned.
If that Texas-based employee travels to California under her company's travel benefit and pharmacy coverage to buy a multiday course of abortion medication and takes the first medication on day one in California, then goes home to Texas to take the medication on days two and three, she has now violated the S.B. 8 "fetal heartbeat" abortion ban in Texas, Pillay said.
"If the employer wants their employees only to obtain the abortion medication legally, and an employee screws up or knowingly goes back to Texas and takes the rest of the medication, the employer has a risk of liability," Pillay said. "Whether or not anyone as a discretionary matter is actually going to investigate and prosecute that employer is a different question. But there's so much aggressive rhetoric from a lot of these states that companies really need to be vigilant."
Data Brokers Muddle the Post-Dobbs Market
J. Eli Wade-Scott, an Edelson PC partner who leads the firm's class action practice group and has negotiated large settlements in privacy cases, advises the hospitality industry to keep an eye on the Federal Trade Commission's civil suit filed in August against mobile app analytics provider Kochava Inc.
The FTC claims that the data broker unlawfully sells geolocation information that can be used to track people to reproductive health care clinics and other sensitive places, according to Wade-Scott.
Meanwhile, he said, Dobbs is causing many companies to think differently about information they typically collect. Data may initially be de-identified, but there are so many collections of information in data brokers' huge middle market that correlating data and re-identifying people is not difficult, he said.
"The entire information collection industry has wanted to view itself as nonpartisan when collecting information with an incredibly high degree of fidelity about individuals, including everything from their location to their names, education and religious affiliation," Wade-Scott said. "Companies have really not wanted to think of that as a moral choice. It's just business. But now, Dobbs puts a different light on that."
The issue is of particular relevance to the hospitality industry, since hotels possess data about where people are at a given moment, and investigators as well as data brokers may ask hotels to share that information with them, Wade-Scott said.
"It is unfortunately common for companies to share information outside of their digital walls for some perceived benefit, like giving information to third-party data brokers," he said. "In that way, the data brokering industry creates a digital dossier on you that I think now presents really problematic privacy implications. So hotels should be thinking about both the data they have and where they're sending it."
Pillay also took note of the FTC's lawsuit against Kochava, saying the case is a reminder that companies must try to balance their business operations with the safety and security of the consumers they target with marketing campaigns.
"There's a significant convenience to users to have location data," Pillay said. "That's helpful and really valuable to consumers. You also don't want to reduce the convenience and technology that the hospitality industry has developed over the years. Some companies are trying hard to stay neutral on this, and they think that making any changes to their business would reveal some sort of political association. It's an untested and complicated area."
--Editing by Marygrace Anderson.