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

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.” 

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 argued that the Comstock Act should be enforced by the courts to “prosecute those who obtain mifepristone through the mail.” In Project 2025, policy analysts similarly argue that the Department of Justice should enforce federal laws like Comstock to prohibit the mailing of abortion medication writ large.  

President Donald Trump has previously claimed that he would not enforce the Comstock Act in this way, but advocates have seen troubling signs out of the administration about how they might eliminate access to mifepristone in other ways.

In late 2025, the Food and Drug Administration began a safety review of mifepristone, despite over 20 years of evidence that it’s a safe medication. Bernstein said her organization is keeping a close eye on the “politically motivated” review at the FDA, which she argues flies in the face of the science.

The combined regimen of mifepristone and misoprostol, the drug typically used in tandem with mifepristone to induce a medication abortion, carries a less than 1 percent risk of serious adverse events. Comparatively, the risk of maternal death associated with childbirth is roughly 14 times higher than the risk associated with abortion care.

But despite medical evidence of its safety, the threat to mifepristone from the FDA has increased in recent days. FDA Commissioner Marty Makary resigned earlier this week, and he was replaced by Kyle Diamantas, a former lawyer.

Within hours of his appointment on Tuesday, Diamantas was reportedly on the phone with anti-abortion advocates reassuring them of his moral opposition to abortion. According to a press release sent from an anti-abortion advocate, regarding her conversation with Diamantas, she said that he promised that reviewing mifepristone would be a “top priority” and that he was “pro-life.”

The Thursday ruling allows providers to continue to send mifepristone through the mail or to retail pharmacies, while the case plays out in the lower courts. Earlier this month, the 5th U.S. Circuit Court of Appeals had reinstated previous FDA requirements that mifepristone be dispensed in person, threatening telehealth access, a critical lifeline for abortion access for people in states with and without abortion bans. 

The Supreme Court issued an initial ruling staying the appeals court decision earlier this month, which they extended on Monday, before making their final decision on Thursday to allow access to continue while the Louisiana v. FDA case plays out in court.

But a looming concern for advocates is that both the courts’ more politically attuned conservatives and members of the Trump administration could be waiting to make a move on abortion access until after the midterms in a ploy to avoid the disasters of the post-Dobbs elections.

“We’re definitely concerned, because we know that the Trump administration understands that it’s politically unfavorable to restrict access to abortion and to mifepristone,” said Guttmacher Institute’s Bernstein. “We’ve all seen the reports of them slow-walking to the midterms, and we know why politically they might want to do so.” 

While the Comstock Act serves as a significant threat to abortion access, advocates note that if mifepristone is no longer able to be sent through the mail, people can still access medication abortion care. 

Mifepristone works by stopping the pregnancy from growing and initiates the separation of the embryo from the uterine lining. The other drug, misoprostol, causes contractions which expel the contents of the uterus.

Misoprostol can be safely and effectively used on its own to induce an abortion. However, the process of abortion “is prolonged when it’s with a misoprostol-alone protocol,” explained Dr. Ushma Upadhyay, a public health scientist at the University of California, San Francisco’s Advancing New Standards in Reproductive Health research coalition. “And patients report higher levels of side effects, so a lot of cramping and a lot more bleeding.”

Despite the small victory yesterday, Teylouni said that abortion advocates cannot afford to be “complacent” right now. 

“This decision could have been the biggest blow to abortion access since the Dobbs decision,” she said. “Anti-abortion extremists are not going to stop attempting to ban abortion, and they want to see the Comstock Act invoked and enforced to limit telehealth prescribing again.”