Introduction

A recent survey of half of all U.S. fertility clinics found that more than one in five misdiagnosed, mislabeled, or mishandled reproductive materials. These errors can’t be chalked up to reasonable slips of hand or lapses in judgment as often as deficient quality controls; and no statute or doctrine vindicates these injuries, or says they matter as a matter of law. Victims can’t point to any physical or financial harm they’ve suffered. Some courts point out that reproductive plans are easy to invent and hard to verify. Others wonder why plaintiffs whose plans were thwarted didn’t just turn to abortion or adoption instead. And most are unwilling to cast a child’s birth as a legal injury. The American legal system treats confounded procreation less like mischief than misfortune, closer to a star-crossed romance or a losing ticket in the natural lottery—the kind of adversity that, however fateful, you have no choice but to steel yourself against and move on from: You can’t always get what you want. This indifference is surprising in a country that’s constitutionalized rights to abortion and birth control since the 1960s and 1970s. But even this “fundamental rights” status hasn’t kept states from aggressively restricting access to abortion and contraception, and the Court hasn’t extended these reproductive freedoms to practices that introduce donors or surrogates into the mix. Besides, constitutional privacy applies only to misconduct by government actors: It offers no protection against wrongdoing by any nonstate clinic, pharmacy, or hospital.

The Many Revolutions of Carpenter

Carpenter v. United States, the 2018 Supreme Court opinion that requires the police to obtain a warrant to access an individual’s historical whereabouts from the records of a cell phone provider, is the most important Fourth Amendment opinion in decades. Although many have acknowledged some of the ways the opinion has changed the doctrine of Constitutional privacy, the importance of Carpenter has not yet been fully appreciated. Carpenter works many revolutions in the law, not only through its holding and new rule, but in more fundamental respects. The opinion reinvents the reasonable expectation of privacy test as it applies to large databases of information about individuals. It turns the third-party doctrine inside out, requiring judges to scrutinize the products of purely private decisions. In dicta, it announces a new rule of technological equivalence, which might end up covering more police activity than the core rule. Finally, it embraces technological exceptionalism as a centerpiece for the interpretation of the Fourth Amendment, rejecting backwards-looking interdisciplinary methods such as legal history or surveys of popular attitudes. Considering all of these revolutions, Carpenter is the most important Fourth Amendment decision since Katz v. United States, a case it might end up rivaling in influence.