Experts Fear Clarence Thomas and Samuel Alito Are Laying the Groundwork for a Nationwide Ban on Medication Abortions—And Maybe Even All Abortions

If you had been anxious the Supreme Court was going to ban the abortion drug mifepristone—a wholly affordable concern given the Court’s conservative majority and the truth that it gleefully overturned Roe v. Wade in 2022—you’ll be able to possible breathe simple: The consensus following Tuesday’s oral arguments is that US Food and Drug Administration v. Alliance for Hippocratic Medicine will possible be dismissed on standing. Not as a result of the Court’s conservatives love reproductive freedom and respect a pregnant individual’s proper to decide on, however as a result of the case is so embarrassingly meritless. (The plaintiffs are a bunch of antiabortion medical associations and medical doctors who don’t prescribe mifepristone themselves however declare that sooner or later they may very well be put within the horrible place of treating a affected person who took the drug and could be irreparably scarred from the expertise—the medical doctors, not the sufferers.) So, that’s the excellent news.

The unhealthy, terrifying information is that archconservatives Clarence Thomas and Samuel Alito—the latter of whom, in his opinion overturning Roe, cited a Seventeenth-century jurist who supported marital rape and had ladies executed—can’t simply dismiss the case and transfer on. Instead, consultants concern, they plan to make use of FDA v. Alliance for Hippocratic Medicine to put the groundwork for a future nationwide ban on treatment abortions—and presumably even all abortions.

Per Slate:

Alito and Justice Clarence Thomas are by no means ones to let a humiliation of a lawsuit go to waste. And they had been overtly wanting to embrace the chilling argument on the coronary heart of ADF’s case: the notion that the Comstock Act of 1873 prohibits the distribution of abortion drugs and maybe even tools used for procedural abortions. Under this principle, abortion is already a felony offense underneath federal legislation, and each abortion supplier within the nation could also be prosecuted and imprisoned instantly. Conservative teams just like the Heritage Foundation are already urging Trump to subject an government order on day one banning treatment abortion. Republican attorneys are getting ready to make use of the Comstock Act to prohibit all abortions, not simply drugs. This studying of the zombie relic is so broad {that a} Justice Department and judiciary hostile sufficient to reproductive freedom may contort it to make all abortion care a felony.

Predictably on Tuesday, and with a case constructed of vapors to work with, Alito and Thomas went full Comstock. Alito scolded the FDA for letting suppliers mail abortion drugs regardless of the existence of the legislation. “This is a prominent provision,” the justice advised [Solicitor General Elizabeth] Prelogar. “It’s not some obscure subsection of a complicated, obscure law. They knew about it. Everybody in this field knew about it.” Thomas warned lawyer [Jessica] Ellsworth that her shopper, the maker of mifepristone, lacked a “safe harbor” from prosecution over Comstock. “It’s fairly broad, and it specifically covers drugs such as yours,” he advised her. (That declare is very a lot in dispute.) Alito and Thomas know they may possible lose this case, so that they’re getting ready for the subsequent one. Maybe Trump will win and begin Comstock prosecutions. Maybe [Judge Matthew] Kacsmaryk will subject a brand new ban on mifepristone on the behest of crimson states, as he’s at the moment threatening to do. Either method, Comstock is racing towards the Supreme Court. And two justices have already aligned themselves with a sweeping interpretation of its puritanical prohibitions.

“When you hear the justices asking repeated questions, it’s definitely something that they are interested in,” Leah Litman, a University of Michigan legislation professor, advised The Washington Post, including that she expects Alito or Thomas to put in writing an opinion centered on Comstock. During an interview with the Post in May, antiabortion activist Mark Lee Dickson mentioned the quiet half out loud, telling the outlet: “If a future president were to enforce these federal statutes, then they could shut down every abortion facility in America.” Donald Trump has not commented on the Comstock Act* however teams just like the Heritage Foundation, with its Project 2025, have urged him order the FDA to overturn its approval of mifepristone. While Trump typically likes to faux to be a reasonable on abortion, he additionally brags about killing Roe V. Wade.

After Tuesday’s oral arguments, Representative Cori Bush referred to as for the repeal of Comstock, writing on X: “The antiabortion movement wants to weaponize the Comstock Act as a quick route to a nationwide medication abortion ban. Not on our watch.”

*Let’s be sincere, there is a robust chance he hasn’t heard of it.