When Justice Samuel Alito wrote the majority opinion in Hobby Lobby v. Burwell 10 years ago, he provided answers to questions that no one had asked—at least, officially. The plaintiffs, two businesses owned by Christians, objected to a mandate in the Affordable Care Act requiring health insurance providers to cover types of birth control known as emergency contraception, or E.C. Colloquially known as the “morning-after pill,” E.C. works after sex to prevent pregnancy by blocking sperm from fertilizing an egg or by preventing the release of an egg in the first place. But anti-abortion activists believe that morning-after pills and IUDs prevent implantation of a fertilized egg in the uterus, which they say is tantamount to an abortion.
The Supreme Court ruled for the plaintiffs on the grounds that the contraception mandate violated the religious beliefs of these employers, who believed that four methods of birth control (two kinds of E.C. pills—Plan B and Ella—and two IUDs) are abortifacients. In his opinion, Alito wrote that those four methods “may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.” Then, in a footnote, he explained that the plaintiffs believe life begins at fertilization, while government scientists say it starts at implantation.
Alito didn’t have to say all of that to get to the ruling. “It wasn’t necessary to dispose of the case,” said Mary Ziegler, a law professor at the University of California, Davis School of Law and an expert on the history of legal battles over abortion. “He could have just said, ‘These people believe this.’” (Speaking of Alito yapping, Hobby Lobby is the same case in which he allegedly leaked the outcome to conservative donors.) Now that Roe v. Wade is gone, Alito’s opinion could become an even bigger gift to the anti-abortion movement than it was a decade ago, said Melissa Murray, a law professor at the New York University School of Law.
“Post-Dobbs, the question surrounding some of these forms of contraception is whether, in fact, they can be reclassified or re-characterized as abortifacients. And then the question isn’t about contraception, it’s about abortion,” Murray said. “Hobby Lobby laid the foundation for it.”
What lawmakers consider to be an abortifacient is increasingly important given that the GOP is scheming to ban abortion without Congress. When the Supreme Court hears arguments tomorrow in a case that could restrict access to the abortion pill mifepristone, it will also contend with a legal theory cooked up after the fall of Roe: that a zombie Victorian-era abortion ban, the federal Comstock Act of 1873, has sprung back to life and now criminalizes the possession, sale, or mailing of any drug or device that is used for abortions.
No matter what happens with the mifepristone case, the conservative activists behind Project 2025 want a potential Trump administration to enforce Comstock in order to ban the shipment of abortion pills nationwide. It’s not hard to see where this is going. If anti-abortion activists believe that Plan B and IUDs cause abortions—an idea bolstered by Hobby Lobby—they could try to ban them under Comstock too. “If the morning-after pill is an abortifacient, and if the Comstock Act bans mailing abortifacients, it’s not much of a leap to assume that it would bar the mailing of emergency contraception,” Ziegler said. Mifepristone would be the first target, but conservatives are “not hiding that they want to do something about emergency contraception,” she said.
The right-wing Christian law firm Alliance Defending Freedom, or ADF—which represented a plaintiff in the consolidated Hobby Lobby case—brought the mifepristone case and asked the court in a February brief to weigh in on Comstock. (Nearly 150 GOP members of Congress made a similar ask.) The plaintiffs in the abortion pill case, a group of anti-abortion doctors, arguably don’t have legal standing to sue, but then again, neither did the Colorado website designer in 303 Creative, another ADF case. The Supreme Court ruled in her favor last June.
Ziegler said activists behind Project 2025, and Comstock-boosting lawyer Jonathan Mitchell, are reading the statute wrong: It’s only supposed to apply to illegal abortions, and the Biden administration’s Department of Justice agrees. But if Trump wins and nominates a Comstock-friendly attorney general, it’s off to the races. And it could impact much more than mifepristone, supplies for in-clinic abortions, and emergency contraception.
Murray said it was “very possible” that a Trump administration could apply a Comstock ban to other drugs that are known to induce abortion, like misoprostol, the second drug in the FDA-approved medication abortion protocol. Misoprostol can be used on its own to end a pregnancy and is also prescribed to people experiencing miscarriages. (It was originally approved as an ulcer drug, and Brazilian feminists discovered an off-label use later.) “All bets are off,” she said. “I would feel better about misoprostol if it were used to treat diseases of the penis and people would be able to find a carve-out for that.” She noted that the Connecticut law challenged in the landmark 1965 ruling Griswold v. Connecticut banned diaphragms and the pill while exempting condoms because they helped prevent sexually transmitted infections.
The Comstock Act used to apply to birth control as well, and while Congress had the sense to repeal those portions in 1971, that doesn’t mean contraception is safe—even the nonemergency kind. Conservatives have been conflating birth control with abortion for decades, Ziegler said. In the late 1990s, the group Pharmacists for Life called the first-ever morning-after pill “emergency abortions.” Murray notes that Alito’s Hobby Lobby opinion isn’t the only Supreme Court writing to conflate birth control with abortion. Justice Clarence Thomas picked up the mantle in a 2019 case called Box v. Planned Parenthood, where he used a concurrence to try to graft the eugenics-laden history of the birth control movement to the history of abortion. (He’s wrong: Eugenics laws relied on coerced sterilizations, not abortions; and the first efforts to restrict abortion in the nineteenth century were largely intended to increase the white birth rate.)
Even with the explicit birth control sections gone, Comstock—which Murray dubbed “a fever dream of Victorian repression”—also bans mailing items for any “immoral purpose.” If conservatives really want to go maximalist, she said, they could claim that all forms of contraception are “immoral.” Now why would anti-abortion activists want to target regular old birth control, which, like E.C., helps prevent unintended pregnancies? Because what undergirds the movement is a desire to exert control over people’s bodies and to reinstate decades-old norms that sex is for procreation among married people only.
If the Supreme Court reanimates Comstock, it could effectively green-light a ban on some methods of contraception, all without overturning Griswold. “To the extent that the court would literally have a huge shitstorm on his hands were it to overrule yet another precedent, and one as high-profile as Griswold, yeah, this is a great interim measure,” Murray said. “Once you normalize a world without contraception, then maybe it’s a lot easier to actually overrule Griswold.”
Should a Trump administration cite Comstock to ban the mailing of emergency contraception and IUDs, advocates could appeal, but it’s an open question whether this Supreme Court would stop him. University of Michigan law professor Leah Litman sounded quite skeptical during a recent appearance on Alex Wagner Tonight, and connected it back to the 2014 ruling. “The Supreme Court in Hobby Lobby v. Burwell essentially said that some employers were entitled to believe, and then act on their belief, that some forms of contraception were abortifacients and therefore did not have to offer that form of health insurance coverage to their employees,” Litman said. “So the seeds have already been planted and they are just waiting, again, for the next Republican president, knowing that the Republican Supreme Court will let them get away with basically anything to test the limits of the law and try to bring a federal abortion ban to life without having to enact it into law.”
Wagner responded, “That’s why Kamala Harris was in Minnesota today. You could be in a blue state with Democrats controlling the state, have all the protections you think you need, but it matters who’s sitting in the White House.” It’s true that, on Comstock, it matters who the president is. And when the president is Joe Biden, an octogenarian staring down a too-close-for-comfort rematch against the man who could make a national abortion ban happen, more needs to be done. It’s time to drive a stake through the heart of this zombie ban by repealing it—if that fails, Democrats would have at least let voters know that Comstock exists, and that Republicans are more than happy to keep it around.
Murray acknowledges that the Biden administration might be indulging in some magical thinking, possessed of the belief that the prudent move at the moment is to ignore Comstock’s potential threat so as to not make it sound credible to the Supreme Court ahead of the mifepristone case. “It’s too late,” she said. “That ship has sailed.” It’s now just a matter of whether Democrats will defuse the bomb. “I don’t even think many of them even understand the threat that it poses—most people don’t,” Murray said. “Would I like them to [repeal Comstock]? One hundred percent. Do I think they will? Probably not.”
Yes, Democrats in Congress have tried to codify Roe into federal law; the effort foundered thanks mostly to two retiring senators’ intransigence on the filibuster. Biden has fallen short in that arena, but he could make up for lost ground by talking about Comstock on the campaign trail and pushing congressional leaders to get Republicans on the record about whether they support a dormant nationwide abortion ban written before women could even vote. In this era of abortion winning elections, if Democrats don’t force votes in both chambers—yes, even the House—and campaign on this very out-in-the-open Republican plan to further subjugate women and pregnant people, it will confirm the party’s antipathy to delivering anything of substance on abortion. But if Democrats do sound the alarm on Comstock, they might save us all from a Victorian prison—and they could even win in November.
