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

Supreme Court Allows Telehealth Access to Mifepristone to Continue While Lower Court Case Proceeds

The Supreme Court on Thursday permitted telehealth prescriptions and mail delivery of the abortion medication mifepristone to remain in place during ongoing litigation, with Justices Clarence Thomas and Samuel Alito dissenting. The ruling extends a stay of a Fifth Circuit decision that had sought to reinstate in-person dispensing requirements previously set by the Food and Drug Administration.

Thomas and Alito argued in separate opinions that the majority decision improperly preserved expanded access to the drug. Thomas wrote that the Comstock Act, enacted in 1873, prohibits mailing “any drug … for producing abortion” and stated that applicants seeking to maintain mail access were not entitled to relief based on lost revenue from what he described as a criminal enterprise. Alito characterized the litigation strategy as an effort to circumvent the 2022 Dobbs v. Jackson Women’s Health Organization decision, which returned regulatory authority over abortion to the states.

Data from 2023 and 2025 indicate that medication abortions accounted for roughly two-thirds of procedures nationwide and that residents of states with near-total bans obtained mifepristone through telehealth more frequently than by traveling to states with fewer restrictions. The Thursday order leaves providers free to ship the drug or dispense it through retail pharmacies while the underlying case, Louisiana v. FDA, continues in lower courts.

The Comstock Act originally barred the mailing of obscene materials, contraceptives, and items intended to produce abortion. The statute remains in the U.S. Code, though federal enforcement actions involving abortion-related materials have not occurred for decades. A 2022 Department of Justice memorandum concluded that the law does not bar shipment of mifepristone when the sender lacks intent that the drug be used in violation of state law. Legal scholars have differed on whether the Act could be applied to current medication abortion practices, with some citing First Amendment and vagueness concerns and others maintaining that the plain text covers distribution of abortion-inducing drugs.

Republican members of Congress and policy documents associated with Project 2025 have called for renewed enforcement of the Comstock Act to restrict interstate shipment of mifepristone. President Donald Trump stated during the 2024 campaign that he would not direct federal prosecutors to use the statute against abortion medication providers. Administration officials have not issued a formal enforcement policy since taking office.

The FDA initiated a safety review of mifepristone in late 2025. The agency has documented that the two-drug regimen of mifepristone followed by misoprostol is associated with serious adverse events in fewer than 1 percent of cases. Government statistics show the risk of death from childbirth is approximately 14 times higher than the risk associated with legal abortion procedures. FDA Commissioner Marty Makary resigned earlier this week; his successor, Kyle Diamantas, previously worked as a lawyer and has been described by anti-abortion organizations as committed to reviewing the drug’s approval status.

Advocates for continued access, including Claire Teylouni of Reproductive Equity Now and Anna Bernstein of the Guttmacher Institute, stated that the FDA review and potential future enforcement of the Comstock Act represent ongoing risks to medication abortion availability. They noted that any restriction on mailing could affect supply chains for surgical instruments and medication shipments to states that permit abortion.

Dr. Ushma Upadhyay of the University of California, San Francisco’s Advancing New Standards in Reproductive Health program explained that misoprostol alone can terminate a pregnancy but typically requires a longer course and produces higher rates of cramping and bleeding than the combined regimen. Providers in states without bans have discussed this option with patients in anticipation of possible federal limits on mifepristone distribution.

The Fifth Circuit had reinstated earlier FDA rules requiring in-person dispensing before the Supreme Court stayed that order. The full case remains pending, with no immediate change to current prescribing practices. Observers from both sides of the issue have noted that major policy shifts on abortion medications could be timed after the 2026 midterm elections, given polling data showing public opposition to new federal restrictions.

Thomas’s dissent emphasized that the Comstock Act’s text has not been repealed by Congress and argued that lower courts should apply it to mail-order shipments regardless of state-level legality. Supporters of enforcement contend that the statute provides a uniform national standard independent of varying state abortion laws. Opponents of enforcement maintain that modern medical practice and intervening Supreme Court precedent on interstate commerce and reproductive medications limit its reach.

The Thursday decision preserves the status quo for telehealth providers while litigation continues. No enforcement actions under the Comstock Act have been reported since the ruling.