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 were worried the Supreme Court was going to ban the abortion drug mifepristone—an entirely reasonable concern given the Court’s conservative majority and the fact that it gleefully overturned Roe v. Wade in 2022—you can likely breathe easy: The consensus following Tuesday’s oral arguments is that US Food and Drug Administration v. Alliance for Hippocratic Medicine will likely be dismissed on standing. Not because the Court’s conservatives love reproductive freedom and respect a pregnant person’s right to choose, but because the case is so embarrassingly meritless. (The plaintiffs are a group of antiabortion medical associations and doctors who don’t prescribe mifepristone themselves but claim that one day they could be put in the horrible position of treating a patient who took the drug and would be irreparably scarred from the experience—the doctors, not the patients.) So, that’s the good news.

The bad, terrifying news is that archconservatives Clarence Thomas and Samuel Alito—the latter of whom, in his opinion overturning Roe, cited a 17th-century jurist who supported marital rape and had women executed—can’t just dismiss the case and move on. Instead, experts fear, they plan to use FDA v. Alliance for Hippocratic Medicine to lay the groundwork for a future nationwide ban on medication abortions—and possibly even all abortions.

Per Slate:

Alito and Justice Clarence Thomas are never ones to let an embarrassment of a lawsuit go to waste. And they were openly eager to embrace the chilling argument at the heart of ADF’s case: the notion that the Comstock Act of 1873 prohibits the distribution of abortion pills and perhaps even equipment used for procedural abortions. Under this theory, abortion is already a criminal offense under federal law, and every abortion provider in the country may be prosecuted and imprisoned immediately. Conservative groups like the Heritage Foundation are already urging Trump to issue an executive order on day one banning medication abortion. Republican lawyers are preparing to use the Comstock Act to prohibit all abortions, not just pills. This reading of the zombie relic is so broad that a Justice Department and judiciary hostile enough to reproductive freedom could contort it to make all abortion care a felony.

Predictably on Tuesday, and with a case built of vapors to work with, Alito and Thomas went full Comstock. Alito scolded the FDA for letting providers mail abortion pills despite the existence of the law. “This is a prominent provision,” the justice told [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 attorney [Jessica] Ellsworth that her client, 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 told her. (That claim is very much in dispute.) Alito and Thomas know they will likely lose this case, so they’re preparing for the next one. Maybe Trump will win and commence Comstock prosecutions. Maybe [Judge Matthew] Kacsmaryk will issue a new ban on mifepristone at the behest of red states, as he is currently threatening to do. Either way, Comstock is racing toward 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 law professor, told The Washington Post, adding that she expects Alito or Thomas to write an opinion centered on Comstock. During an interview with the Post in May, antiabortion activist Mark Lee Dickson said the quiet part 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* but groups like the Heritage Foundation, with its Project 2025, have urged him order the FDA to overturn its approval of mifepristone. While Trump sometimes likes to pretend to be a moderate on abortion, he also brags about killing Roe V. Wade.

After Tuesday’s oral arguments, Representative Cori Bush called 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 honest, there’s a strong possibility he hasn’t heard of it.