There was a rather elaborate fantasy being spun at the Supreme Court on Tuesday during oral arguments in a major abortion-pill case. To hear the conservative plaintiffs tell it, doctors are being dragged into emergency rooms, coerced into providing quasi-abortions despite federal conscience protections and mopping up the blood of women supposedly harmed by the FDA making it incrementally easier to get mifepristone. All this purportedly entitles a coalition of Christian conservative doctors and dentists — yes, dentists — to sue to get the FDA to roll back access.
A majority of the court, having already already refused to hear the plaintiff’s bid to ban the pills entirely, sounded fairly skeptical that the pro-life dentists have standing to sue. But judging by the preview the rightmost justices gave of another fantasy scenario — one they have the power to help enact, that would see reproductive freedom set back by 150 years — any relief provided by the court in this case could be temporary.
Pushed by the justices on both sides of the aisle, Erin Hawley, the attorney for the Alliance Defending Freedom and wife of insurrection-cheerleading Senator Josh Hawley, struggled to point to real-world harm her clients have already or would suffer under increased abortion-pill access. “You need a person to be able to come in and meet the courts’ regular standing requirements,” Justice Elena Kagan reminded Hawley. When Justice Ketanji Brown Jackson asked Hawley to stop speculating and give her a real example of a doctor unable to use existing federal law to opt out of participating in abortion, it was somehow Justice Neil Gorsuch who jumped in to back her up and complain, “This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action.” Justice Amy Coney Barrett also seemingly couldn’t find any evidence of actual harm to the two doctors Hawley claimed had the strongest claims: “I think the difficulty here is that at least to me, these affidavits do read more like the conscience objection is strictly to actually participating in the abortion to end the life of the embryo or fetus. And I don’t read either to say that they ever participated in that.”
This particular ploy may have been too thin to command the current court to undo the FDA’s considered judgment. Waiting in the wings, however, is another dream world in which abortion pills and even contraception could be banned under the Comstock Act — without the national attention or political costs of passing a new law. The zombie law, passed in 1873 and never repealed by Congress, makes it illegal to send through the mail “obscene Literature and Articles of immoral Use,” such as “any article or thing designed or intended for the prevention of conception or procuring of abortion.” That includes contraception. As law professors Reva Siegel and Mary Ziegler write in a forthcoming article about Comstock, his “objection was that abortion, contraception, and even placebos incentivized sexual impurity: while erotica stoked lust for both boys and girls, anything marketed as a contraceptive or abortifacient would facilitate licentiousness by allowing users to conceal their sin.”
The new enthusiasm for Comstock is not a secret. Project 2025, the Heritage Foundation–authored agenda for a Trump second term, proposes that the Justice Department “stop promoting or approving mail-order abortions in violation of long-standing federal laws that prohibit the mailing and interstate carriage of abortion drugs,” presumably with the compliance of a bevy of Trump-appointed (or just sympathetic) justices. Just last February, conservative legal strategist Jonathan Mitchell, sounding a little like a cartoon villain laying out his future plans, helpfully told the New York Times, “We don’t need a federal ban when we have Comstock on the books.” Even Mitchell knows the average American isn’t interested in returning fully to Victorian sexual norms, which is why he actually said that he hoped Trump wouldn’t ruin his barely hidden plan: “I hope he doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth,” adding, “I think the pro-life groups should keep their mouths shut as much as possible until the election.” So much for leaving it to the states.
Maybe that’s why, at oral argument, Justice Samuel Alito didn’t refer to the Comstock Act by its commonly used name, instead coyly using the obscure number in the U.S. Code. Why tip your hand when the abortion opinion you wrote in 2022 has already elected Democrats for several cycles in a row? But Clarence Thomas wasn’t nearly so politic: “How do you respond to an argument that mailing your product and advertising it would violate the Comstock Act?” he demanded of the lawyer for the drug company that makes the mifepristone. And standing in front of the court, the feminist activist group Abortion Access Front provided the visual the justices were straining to avoid: an actor costumed as the foreboding moralist Anthony Comstock himself, bushy side-whiskers and black top hat and all, with a sign in curly script reading, “Let the Men Decide.”
There was once a very real public-health emergency in which women were showing up bleeding and injured, filling medical wards with grisly scenes. That would be the pre-Roe days, when desperate patients went to unsafe providers or took matters into their own hands, helping convince Republican and Democratic appointees to the Court alike to write and form a majority in Roe.
That we aren’t seeing droves of septic patients this time around is a testament to the transformative impact of the very pills the right is seeking to limit, by making a discreet out-of-clinic abortion infinitely safer. Though not directly at issue before the court, the subtext of the abortion-pill litigation is how much this medicine is undermining the right’s fondest dreams of forced pregnancy in ban states, whether through surreptitious pills through the mail or patients being able to drive just across state lines to quickly and legally get abortion pills. The liberating power of technology was also represented outside the Court today, with Roomba-like “Roe-bots” dispensing abortion pills, remotely operated by doctors protected by blue-state shield laws. And we already know that today, thanks to the FDA’s decisions to make the pill combination available longer and through telemedicine, 63 percent of lawful abortions are done by pills rather than in-clinic procedure, and that probably as a result of this increased accessibility the number of abortions in the country overall has actually gone up since Dobbs.
None of that means that the post-Dobbs world foisted on us by Alito and his co-signers isn’t ravaging the unlucky. In April, the court is going to hear one real consequence of its airy abortion decisions. Here on planet Earth, patients who show up to hospitals needing emergency miscarriage or abortion care in states that have banned abortion are tragically being denied because, in many cases, Republican legislators have spooked hospitals out of providing basic lifesaving health care. If they get their way, and enough justices are willing, the robots and the pills won’t be enough to save us.
