Supreme Court Battles: Abortion Pills, Digital Privacy, and Judicial Tensions

No abortion pills through the mail; rules for "geofence warrants;" and Justice Jackson reveals her stripes.

This week, we are covering ongoing litigation concerning the Biden Administration’s flouting of FDA procedures to allow for abortion pills to be delivered through the mail to pro-life states. We are also reviewing oral argument at the Supreme Court over the constitutionality of “geofence warrants,” which allow law enforcement to obtain a user’s location data from cell phone service providers.

And we follow-up on developments in Callais v. Louisiana – which we covered last week – where Justice Samuel Alito provides a strong condemnation of Justice Ketanji Brown Jackson’s unhinged rhetoric and “legal reasoning.”

Image by Tammy Turner

The Fight for Abortion Pills goes to the Supreme Court

On May 4, the Supreme Court issued an order to administratively stay – until Monday, May 11 – a recent order by the Fifth Circuit Court of Appeals that prevented abortion providers from providing abortion medication by mail. This is not a stay on the merits but will instead allow for further briefing on the stay issued by the Fifth Circuit, after which the Supreme Court will decide how to proceed.

For background, Biden issued an Executive Order to federal agencies to “expand access” to medical abortion. So, the Biden Food and Drug Administration (FDA) allowed the abortion drug mifepristone (typically taken during the first 12 weeks of pregnancy) to “be prescribed online and dispensed through mail, without any need for an in-person visit to a doctor.” The FDA altered its safety guidelines for mifepristone and failed to study whether it was safe to allow mifepristone to be remotely prescribed.

The State of Louisiana sued in federal district court, alleging the FDA’s new regulation was “based on flawed or nonexistent data” and because the regulation had “resulted in numerous illegal abortions in Louisiana and caused Louisiana to pay thousands in Medicaid bills for women harmed by mifepristone.”

The district court determined that Louisiana was likely to win its challenge but denied the State’s request to stay the regulation. Louisiana appealed and the Fifth Circuit granted the stay. The Fifth Circuit reasoned that the FDA’s actions were “likely unlawful” because the FDA eliminated the requirement to report mifepristone’s adverse events and yet used the lack of adverse event data to support its remote prescription rule—totally bootstrapping its decision.

The FDA had also relied on literature to support the remote prescription of the drug even though the literature did not support its position. This was, to the Fifth Circuit, “a textbook example of arbitrary and capricious reasoning.” Additionally, the FDA action undermined Louisiana’s “laws protecting unborn human life” and undermined its policy that “every unborn child is a human being from the moment of conception and is, therefore, a legal person.”

Image by Getty Images

Cell Phone Location Data and the Fourth Amendment

In Chatrie v. United States, the Supreme Court is considering whether the execution of a “geofence warrant” violated the Fourth Amendment. This is what the FBI used to track down all the January 6 defendants.

A geofence warrant allows law enforcement to obtain from a service provider – such as Google or Verizon – the identities of users who were in a location at a particular time. Overall, a geofence warrant is a valuable tool for law enforcement, especially where there are no witnesses to a crime. But it does implicate significant Fourth Amendment concerns, especially when companies like Google collect location data on “numerous tens of millions” of Americans.

Chatrie involves a bank robbery in Midlothian, Virginia in the spring of 2019. In the commission of that robbery, Okelle Chatrie gave the teller a note demanding $100,000. When the teller replied that she did not have access to that type of money, he pulled a firearm, forced everyone to the ground, and forced the manager to open the safe. He got away with $195,000 in cash.

After the robbery, law enforcement obtained a geofence warrant from Google that sought location data for every device within 150 meters of the bank robbery for the period of one hour. After Google returned that list, law enforcement sought – without seeking another warrant – location data for that same bank robbery for a period of two hours. And again, without seeking an additional warrant, law enforcement requested subscriber information for one of the devices.

One of those devices belonged to Okello Chatrie, who eventually pleaded guilty to bank robbery and brandishing a firearm during a crime of violence. He entered that plea subject to his motion to suppress the geofence warrant.

We can safely assume that the Supreme Court is hearing this case because some courts have ruled different ways on the issue of whether obtaining location data from a service provider violates the Fourth Amendment protections against unreasonable search and seizure. The Fourth Circuit – the court that heard Chatrie’s appeal – “held that obtaining location information from Google was not a search at all.” The Fifth Circuit disagrees. A ruling from the Supreme Court on this issue would clear-up confusion in the lower courts and provide guidance on exactly what the rules are for a geofence warrant.

The oral argument in Chatrie was on April 27, 2026. From a review of the transcript, it seems like the Supreme Court may agree with the Fourth Circuit that the geofence warrant complied with the Fourth Amendment and that a geofence warrant, if limited in time and scope, is constitutional. Important to the Court’s consideration is the fact that location data is shared voluntarily. Justice Alito observed that “you have to choose to disclose” your location. And Chief Justice Roberts pointed out that “the only reason the government has access to this information is because you decided to make it public.”

If you value your privacy, you might want to turn off your phone’s location.

Image by AP Photo, Butch Dill

Justice Alito labels Justice Jackson’s dissent as trivial, baseless, and insulting

Last week, we discussed the Supreme Court’s opinion in Callais, where it held a federal district court wrongly required the State of Louisiana to redraw its voting district maps to “create a second district that was majority-black.” The Supreme Court held it was an unconstitutional gerrymander; neither the Constitution nor the Voting Rights Act allowed or required such racial discrimination.

On May 4, the Supreme Court granted a request to issue its judgment to the lower court forthwith. Typically, the Clerk of the Supreme Court waits 32 days to send the judgment to the lower court to provide the losing party time to file a petition for rehearing.

But the Supreme Court can adjust this 32-day waiting period at its discretion. And it had strong basis to do so: early voting has already started for the Louisiana primaries and the general election will start in less than six months.

That seemed reasonable to the entire Supreme Court – except for Justice Ketanji Brown Jackson. In a scathing dissent (which no other Justice joined), she berated the Court for choosing sides in the redistricting battle and spawning “chaos in the State of Louisiana.” To Justice Jackson, the Court is “not content to have decided the law” but it has decided to “take steps to influence its implementation.” She closed her dissent with harsh words:

“The Court unshackles itself from both constraints today and dives into the fray. And just like that, those principles give way to power. Because this abandon is unwarranted and unwise, respectfully, I dissent.”

Justice Samuel Alito – joined by Justices Clarence Thomas and Neil Gorsuch – took her on and wrote a forceful concurring opinion: “The dissent in this suit levels charges that cannot go unanswered.”

Justice Alito’s concurrence eviscerates the reasoning and conclusions of Justice Jackson. He observes that her reasons for allowing the election to proceed under an unconstitutional map to be “trivial at best” as well as “baseless and insulting.” Justice Alito reasoned that the upcoming Louisiana elections required “prompt action by this Court.” And he observed that Justice Jackson’s belief that the 32-day period should run out to “avoid the appearance of partiality” does not explain how such a step would create the appearance of partiality on behalf of those “who may find it politically advantageous to have the election occur under the unconstitutional map.”

As for her claim that the Court’s decision represents an abuse of power? Alito states: “That is a groundless and utterly irresponsible charge.”

In closing, Justice Alito provides remarks with which many on the Court would probably agree:

The dissent accuses the Court of “unshack[ling]” itself from “constraints.” It is the dissent’s rhetoric that lacks restraint.”