One moment in particular, during Tuesday’s arguments over the availability of the abortion drug mifepristone before the Supreme Court, may have gone unnoticed ― despite its crucial importance.
Justice Samuel Alito, the conservative who authored the court’s 2022 decision overturning Roe v. Wade, eschewed plain language in a question to Solicitor General Elizabeth Prelogar about the Food and Drug Administration’s choice to expand access to mifepristone in recent years. Instead, Alito used a piece of official legal code.
“Shouldn’t the FDA have at least considered the application of 18 U.S.C. 1461?” he asked Prelogar.
The average listener is unlikely to recognize that this stray number in the federal register comes from an 1873 anti-obscenity law known as the Comstock Act. The exact provision Alito cited forbids the use of the mail for conveying “every article or thing designed, adapted, or intended for producing abortion.”
“This is a prominent provision,” Alito said. “It’s not some obscure subsection of a complicated obscure law.”
Alito’s seeming endorsement of the provision, along with that of Justice Clarence Thomas, was a stark moment during arguments that otherwise did not go well for the anti-abortion plaintiffs seeking to limit the distribution of mifepristone through telehealth providers.
“Justices Thomas and Alito were pretty clearly trying to roll out the red carpet for future claims even if this case doesn’t succeed,” said Mary Ziegler, a legal historian of the anti-abortion movement at the University of California, Davis, School of Law.
Anti-abortion activists are consolidating around the idea of resuscitating the 150-year-old law, which has not been enforced for some hundred years, as a way to ban abortion nationwide without passing new legislation.
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