Abortion pills are safe from the Supreme Court—for now
The Supreme Court’s unanimous decision to preserve access to abortion pills shows just how flimsy this case was. It never should have survived in the lower courts to reach the Supreme Court, and even the most extreme justices—including Samuel Alito and Clarence Thomas—would have been embarrassed upholding the lower courts’ decision. But make no mistake, this is a temporary reprieve. Anti-abortion forces are gearing up for more attacks. Writing for the court, Justice Brett Kavanaugh acknowledged that the challengers have “sincere legal, moral, ideological, and policy objections” to elective abortion “by others” and to the Food and Drug Administration’s relaxed regulation of the drug, mifepristone. However, he wrote, “those kinds of objections alone do not establish a justiciable case or controversy in federal court.” The oral arguments in March previewed this outcome. The problem even Alito and Thomas couldn’t ignore was that the plaintiff—the right-wing Alliance for Hippocratic Medicine—simply couldn’t prove that it was harmed by access to abortion pills. In fact, the doctors who brought the original suit couldn’t even prove that they were injured by people having access to the drug. But in those arguments, Thomas and Alito repeatedly invited a better group of plaintiffs to take another run at banning the drug, and told them how to do it: by using the Comstock Act, the 1837 law that’s still on the books. That measure banned “indecent” materials such as pornography and sex toys from being sent in the mail, but, importantly, it also limited the mailing of abortion and contraception drugs and devices. “This is a prominent provision. It’s not some obscure subsection of a complicated, obscure law,” Alito said about Comstock. “Everybody in this field knew about it.” That ancient law is now in vogue with Republicans. The Federalist Society’s blueprint for the next Republican administration, Project 2025, demands enforcement of the Comstock Act by the next GOP president’s Justice Department. “Announcing a Campaign to Enforce the Criminal Prohibitions in 18 U.S. Code §§ 1461 and 1462 Against Providers and Distributors of Abortion Pills That Use the Mail. Federal law prohibits mailing ‘[e]very article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.’ Following the Supreme Court’s decision in Dobbs, there is now no federal prohibition on the enforcement of this statute. The Department of Justice in the next conservative Administration should therefore announce its intent to enforce federal law against providers and distributors of such pills.” Democrats are well aware of this threat and have started advocating for the removal of this law. If convicted felon Donald Trump isn’t elected president, expect other challengers to take Alito and Thomas up on their invitation to use the Comstock Act to strike down access to abortion pills, which are currently used in more than half of safe, legal abortions in the U.S. There is another challenge in the wings coming from red states. Idaho, Kansas, and Missouri tried to intervene in this case, but the court didn’t allow—it this time around. However, an anti-abortion activist and judge from Texas, Matthew Kacsmaryk, allowed the states to intervene in his court. Those states could take their efforts back to court, and court watchers like Slate’s Mark Joseph Stern expect Kacsmaryk to keep the case alive. Even in his opinion striking down this challenge, Kavanaugh not so subtly invited another one, writing that “it is not clear that no one else would have standing to challenge FDA’s relaxed regulation of mifepristone.” In his concurring opinion, Thomas stayed away from talking about the Comstock Act, instead choosing to focus on issues of standing, attacking the NAACP and other civil rights groups. He sent out a warning to any civil and abortion rights groups coming to the court to protect access to the drug. "So, just as abortionists lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patients," he wrote. Today’s decision doesn't mean the radical far-right Supreme Court justices have given up on abortion bans. They’re just waiting for a better case. RELATED STORIES Senate Democrats prepare to launch a big fight for reproductive rights The abortion pill seems safe for now, but Leonard Leo won’t give up Hopium Chronicles' Simon Rosenberg joins Markos to discuss the “red wave-ification” of the economy and how prepared Democrats are for November. There is still work to do but we have a better candidate—and we have the edge. Embedded Content Campaign Action
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The Supreme Court’s unanimous decision to preserve access to abortion pills shows just how flimsy this case was. It never should have survived in the lower courts to reach the Supreme Court, and even the most extreme justices—including Samuel Alito and Clarence Thomas—would have been embarrassed upholding the lower courts’ decision.
But make no mistake, this is a temporary reprieve. Anti-abortion forces are gearing up for more attacks.
Writing for the court, Justice Brett Kavanaugh acknowledged that the challengers have “sincere legal, moral, ideological, and policy objections” to elective abortion “by others” and to the Food and Drug Administration’s relaxed regulation of the drug, mifepristone. However, he wrote, “those kinds of objections alone do not establish a justiciable case or controversy in federal court.”
The oral arguments in March previewed this outcome. The problem even Alito and Thomas couldn’t ignore was that the plaintiff—the right-wing Alliance for Hippocratic Medicine—simply couldn’t prove that it was harmed by access to abortion pills. In fact, the doctors who brought the original suit couldn’t even prove that they were injured by people having access to the drug.
But in those arguments, Thomas and Alito repeatedly invited a better group of plaintiffs to take another run at banning the drug, and told them how to do it: by using the Comstock Act, the 1837 law that’s still on the books. That measure banned “indecent” materials such as pornography and sex toys from being sent in the mail, but, importantly, it also limited the mailing of abortion and contraception drugs and devices.
“This is a prominent provision. It’s not some obscure subsection of a complicated, obscure law,” Alito said about Comstock. “Everybody in this field knew about it.”
That ancient law is now in vogue with Republicans. The Federalist Society’s blueprint for the next Republican administration, Project 2025, demands enforcement of the Comstock Act by the next GOP president’s Justice Department.
“Announcing a Campaign to Enforce the Criminal Prohibitions in 18 U.S. Code §§ 1461 and 1462 Against Providers and Distributors of Abortion Pills That Use the Mail. Federal law prohibits mailing ‘[e]very article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.’ Following the Supreme Court’s decision in Dobbs, there is now no federal prohibition on the enforcement of this statute. The Department of Justice in the next conservative Administration should therefore announce its intent to enforce federal law against providers and distributors of such pills.”
Democrats are well aware of this threat and have started advocating for the removal of this law.
If convicted felon Donald Trump isn’t elected president, expect other challengers to take Alito and Thomas up on their invitation to use the Comstock Act to strike down access to abortion pills, which are currently used in more than half of safe, legal abortions in the U.S.
There is another challenge in the wings coming from red states. Idaho, Kansas, and Missouri tried to intervene in this case, but the court didn’t allow—it this time around. However, an anti-abortion activist and judge from Texas, Matthew Kacsmaryk, allowed the states to intervene in his court. Those states could take their efforts back to court, and court watchers like Slate’s Mark Joseph Stern expect Kacsmaryk to keep the case alive.
Even in his opinion striking down this challenge, Kavanaugh not so subtly invited another one, writing that “it is not clear that no one else would have standing to challenge FDA’s relaxed regulation of mifepristone.”
In his concurring opinion, Thomas stayed away from talking about the Comstock Act, instead choosing to focus on issues of standing, attacking the NAACP and other civil rights groups. He sent out a warning to any civil and abortion rights groups coming to the court to protect access to the drug.
"So, just as abortionists lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patients," he wrote.
Today’s decision doesn't mean the radical far-right Supreme Court justices have given up on abortion bans. They’re just waiting for a better case.
RELATED STORIES
Senate Democrats prepare to launch a big fight for reproductive rights
The abortion pill seems safe for now, but Leonard Leo won’t give up
Hopium Chronicles' Simon Rosenberg joins Markos to discuss the “red wave-ification” of the economy and how prepared Democrats are for November. There is still work to do but we have a better candidate—and we have the edge.
