Sam Alito and Erin Hawley made it very clear where the American anti-abortion outfit is heading, and as Irin Carmon explains it is a surpassingly horrible destination:
Pushed by the justices on both sides of the aisle, Erin Hawley, the attorney for the Alliance Defending Freedom and wife of insurrection-cheerleading Senator Josh Hawley, struggled to point to real-world harm her clients have already or would suffer under increased abortion-pill access. “You need a person to be able to come in and meet the courts’ regular standing requirements,” Justice Elena Kagan reminded Hawley. When Justice Ketanji Brown Jackson asked Hawley to stop speculating and give her a real example of a doctor unable to use existing federal law to opt out of participating in abortion, it was somehow Justice Neil Gorsuch who jumped in to back her up and complain, “This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action.” Justice Amy Coney Barrett also seemingly couldn’t find any evidence of actual harm to the two doctors Hawley claimed had the strongest claims: “I think the difficulty here is that at least to me, these affidavits do read more like the conscience objection is strictly to actually participating in the abortion to end the life of the embryo or fetus. And I don’t read either to say that they ever participated in that.”
This particular ploy may have been too thin to command the current court to undo the FDA’s considered judgment. Waiting in the wings, however, is another dream world in which abortion pills and even contraception could be banned under the Comstock Act — without the national attention or political costs of passing a new law. The zombie law, passed in 1873 and never repealed by Congress, makes it illegal to send through the mail “obscene Literature and Articles of immoral Use,” such as “any article or thing designed or intended for the prevention of conception or procuring of abortion.” That includes contraception. As law professors Reva Siegel and Mary Ziegler write in a forthcoming article about Comstock, his “objection was that abortion, contraception, and even placebos incentivized sexual impurity: while erotica stoked lust for both boys and girls, anything marketed as a contraceptive or abortifacient would facilitate licentiousness by allowing users to conceal their sin.”
The new enthusiasm for Comstock is not a secret. Project 2025, the Heritage Foundation–authored agenda for a Trump second term, proposes that the Justice Department “stop promoting or approving mail-order abortions in violation of long-standing federal laws that prohibit the mailing and interstate carriage of abortion drugs,” presumably with the compliance of a bevy of Trump-appointed (or just sympathetic) justices. Just last February, conservative legal strategist Jonathan Mitchell, sounding a little like a cartoon villain laying out his future plans, helpfully told the New York Times, “We don’t need a federal ban when we have Comstock on the books.” Even Mitchell knows the average American isn’t interested in returning fully to Victorian sexual norms, which is why he actually said that he hoped Trump wouldn’t ruin his barely hidden plan: “I hope he doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth,” adding, “I think the pro-life groups should keep their mouths shut as much as possible until the election.” So much for leaving it to the states.
Maybe that’s why, at oral argument, Justice Samuel Alito didn’t refer to the Comstock Act by its commonly used name, instead coyly using the obscure number in the U.S. Code.