Justices Alito and Thomas Actually Brought Up a Dormant Abortion Ban During Supreme Court Hearing

Today, the Supreme Court heard arguments in a case that could restrict access to the abortion pill nationwide. (Here’s a primer on the lawsuit and how we got here.) The good news is that it sounded like there are at least five justices who believe the anti-abortion doctors don’t have standing to sue the Food and Drug Administration—the three liberals, plus Chief Justice John Roberts, Neil Gorsuch, and maybe others—but we likely have to wait until June to find out if they’re going to dismiss the case.

However, the hearing was still bone-chilling because Justices Samuel Alito and Clarence Thomas both sounded like they believe the long-dormant Comstock Act of 1873 actively prohibits the mailing of abortion drugs like mifepristone. Republican activists are urging a future president Trump to enforce Comstock to ban mifepristone nationwide, and maybe even extend it to supplies used for in-clinic abortions, which would essentially ban abortion in all 50 states. This is something a president could attempt to do even without control of Congress.

Alito and Thomas invoking Comstock is a terrifying development, and the only small silver lining is that their questions make it crystal clear that Democrats must move to repeal the law.

Less than 20 minutes into the hearing, Alito asked the Biden administration’s lawyer why it didn’t consider the Victorian-era law when the FDA first approved telemedicine for mifepristone in 2021. “Shouldn’t the FDA have at least considered the application of 18 U.S.C, 1461?,” he asked, referencing Comstock by statute number, not by name, just like many abortion activists do. “This is a prominent provision. It’s not some obscure subsection of a complicated, obscure law.” Au contraire, Sam, Comstock is an obscure law that hasn’t been used against abortion in almost 100 years.

Thomas asked Jessica Ellsworth, the lawyer for Danco, the drug’s brand-name manufacturer, about the zombie law. “How do you respond to an argument that mailing your product and advertising it would violate the Comstock Act?” he said. Ellsworth responded, “We disagree that that’s the correct interpretation of the statute. In order to address the correct interpretation, there would need to be a situation in which that issue was actually teed up. This statute has not been enforced for nearly 100 years and I don’t believe that this case presents an opportunity for this court to opine on the reach of the statute.”

But Thomas didn’t stop there. He asked Erin Hawley (wife of Sen. Josh Hawley), the lawyer for the anti-abortion doctors who brought the case, what she thought of the other advocates’ responses on Comstock. Keep in mind when reading this answer that Hawley works for Alliance Defending Freedom, the right-wing Christian legal juggernaut that helped overturn Roe v. Wade, and wants to ban all abortions nationwide.

Hawley responded to Thomas: “We don’t think that there’s any case of this court that empowers FDA to ignore other federal law. With respect to the Comstock Act as relevant here, the Comstock Act says that [abortion] drugs should not be mailed, either through the mail or through common carriers [UPS, FedEx], so we think that the plain text of that is pretty clear.

Democratic lawmakers, you listening?

Heads up: This is the strategy. They don't need to win Congress. They just need to win the presidency and then the new DOJ can prioritize the enforcement of the Comstock Act (a law that was enacted in 1873 and has been unenforced, tho still on the books, for much of our lives). https://t.co/zd5P30lqMu

— Melissa Murray (@ProfMMurray on Threads 🧵) (@ProfMMurray) March 26, 2024

It appears at least one is. Rep. Cori Bush (D-Mo.) posted on Twitter after the hearing that Congress needs to repeal Comstock. We’ve reached out to her office for further comment.

NEW: Rep. Cori Bush calls to repeal the Comstock Act, becoming the first elected lawmaker to do so (I believe). Republicans want Trump to enforce Comstock to ban abortion nationwidehttps://t.co/YpGbuVmkL9 https://t.co/rPqks18LbR

— Susan Rinkunas (NEW ACCT) (@SusanRinkunas) March 26, 2024

Here are a few other notable things that happened today.

There were protests and demonstrations before the hearing. Founder of Aid Access Rebecca Gomperts helped organize mifepristone-dispensing robots outside the court. She told the Washington Post: “This is a way of saying, ‘No matter what the Supreme Court decides, the pills will be here.’ We’re not in the 1800s anymore.” (PSA: Aid Access and community support networks mail pills to people all over the country. People can also have an abortion using only misoprostol. The website Plan C has a ton of info.)

Back inside the courtroom, Solicitor General Elizabeth Prelogar began her opening statement by outlining how the anti-abortion doctors don’t have standing to sue. Even if they did see patients who had medication abortion complications, they don’t have to treat them because conscience laws exist.

Before it became clear that Gorsuch didn’t believe the plaintiffs actually had a right to sue, he brought up what he called “offended observer” standing. “I access a park and I like to look at it in a certain way.” That’s a reference to Fifth Circuit Judge James Ho who said the anti-abortion doctors are injured because they like to look at their “unborn patients” much like people like to view animals. We could have done without that, Neil!

Alito also referenced the fact that three Republican Attorneys General—from Missouri, Kansas, and Idaho—asked to join the case a year late, claiming that they have standing to sue. He’s hinting that, even if a majority dismisses these plaintiffs, this case won’t be over. We noted this possibility in our argument preview.

That’s all for now, we’ll be back when the court releases a ruling in the case, likely in late June.