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A “Scheme” Against Dobbs: SCOTUS Dissent Hints at Next Phase of Abortion Rights Fight

Justice Clarence Thomas argues the Comstock Act, passed in 1873, prohibits the mailing of abortion medication.

Supreme Court Justices Clarence Thomas and Samuel Alito found themselves in the minority on Thursday, when the court ruled that telehealth access to the abortion drug mifepristone could continue, leaving the dissenting conservatives to foreshadow a future showdown over abortion rights.

Both justices railed against the decision, with Alito calling it a “scheme” to get around their ruling in Dobbs v. Jackson that eliminated the nationwide right to an abortion in 2022. Abortions have increased since their decision, Alito lamented, largely due to telehealth access. 

In 2025, far more residents of states with total abortion bans received telehealth provisions of medication abortion than traveled out of state to receive care in places with fewer restrictions. And roughly two-thirds of all abortions in the U.S. in 2023 were medication abortions. But advocates warn that the dissents from Thomas and Alito highlight that the threat to abortion access still looms large.

“We’re breathing a sigh of relief. I would say that the immediate threat to mifepristone is over,” said Claire Teylouni, interim co-executive director of Reproductive Equity Now, “But it’s certainly clear from reading those dissents that the threat … is far from over.” 

In his dissent, Thomas argues that the Comstock Act, an anti-obscenity law passed in 1873 that remains on the books but has not been enforced in decades, prohibits the mailing of abortion medication. “The Comstock Act bans using ‘the mails’ to ship any ‘drug … for producing abortion,’” Thomas wrote. “Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise.”

The Comstock Act originally prohibited the mailing of “obscene” materials, such as pornography, contraceptives, and any drug or device that can be used to produce an abortion. But legal scholars have argued that the law is unenforceable and unconstitutional on First Amendment grounds and other modern case law. 

In 2022, a Department of Justice memo clarified that the law does not prohibit the mailing of drugs that could be used to perform an abortion because there is “an insufficient basis for concluding that the sender intends them to be used unlawfully.” 

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Despite the memo and the fact that the Comstock Act has not been enforced in decades, conservatives, including Thomas and Alito, have been eager to use the law to push a national abortion ban.

“Enforcement of the Comstock Act has the potential to threaten the broader supply chain with regard to the reproductive health care system as a whole,” warned Teylouni. Arguably if enforced, the law could even jam up access to surgical tools used in abortion care and the shipping of abortion medication to states without bans.

Republican lawmakers have........

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