dissent raises – The Supreme Court ruled Thursday that telehealth access to the abortion drug mifepristone can continue, but dissenting justices signaled a coming fight that could revive threats tied to the 1873 Comstock Act. Advocates say the immediate pressure eased while ot
Supreme Court Justice Clarence Thomas and Samuel Alito found themselves in the minority Thursday as the justices ruled that telehealth access to the abortion drug mifepristone could continue, leaving dissenters positioned to press for what they view as the next legal phase of the abortion fight.
Alito attacked the decision as a “scheme” to work around the Supreme Court’s Dobbs v. Jackson ruling, which in 2022 eliminated a nationwide right to an abortion. Alito also said abortions have increased after Dobbs, lamenting that telehealth access is a major driver of that rise.
The majority outcome, however, offers at least a temporary runway for providers and patients who rely on telehealth.. In 2025. far more residents in states with total abortion bans received medication abortion through telehealth than traveled to states with fewer restrictions. according to the figures discussed in the ruling’s surrounding debate.. The stakes are heightened by the fact that roughly two-thirds of all abortions in the U.S.. in 2023 were medication abortions.
Still, advocates said the dissents from Thomas and Alito make clear that pressure will not disappear.. “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.”
Thomas’s dissent zeroed in on the Comstock Act. an anti-obscenity law passed in 1873 that remains on the books but has not been enforced in decades.. In his written dissent, Thomas argued the Comstock Act bars mailing abortion medication.. “The Comstock Act bans using ‘the mails’ to ship any ‘drug … for producing abortion,’” Thomas wrote.. He added: “Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise.”
The Comstock Act historically 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 the law is unenforceable and unconstitutional on First Amendment grounds and under modern case law.
That question about enforceability has not been new.. In 2022. the Department of Justice issued a memo clarifying that the Comstock Act does not prohibit mailing 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.” Even so. conservatives including Thomas and Alito have been eager to use the Comstock Act to push toward a national abortion ban.
Republicans have argued courts should enforce the Comstock Act. including to “prosecute those who obtain mifepristone through the mail.” Similar arguments appear in Project 2025. with policy analysts saying the Department of Justice should enforce federal laws like Comstock to prohibit the mailing of abortion medication writ large.
Yet President Donald Trump has previously claimed he would not enforce the Comstock Act in that way. Advocates, however, said they have seen troubling signals from the administration that it could reduce access to mifepristone through other routes.
“We’re focusing on some pressing threats that are already ongoing,” said Anna Bernstein, principal federal policy adviser at the Guttmacher Institute.
Late in 2025, the Food and Drug Administration began a safety review of mifepristone, despite more than 20 years of evidence it is a safe medication. Bernstein said Guttmacher is closely watching what she described as a “politically motivated” review that she argues runs against the science.
Under the description provided in the reporting. the combined regimen of mifepristone and misoprostol—the drug typically used alongside mifepristone to induce a medication abortion—carries a less than 1 percent risk of serious adverse events.. By comparison. the risk of maternal death associated with childbirth is roughly 14 times higher than the risk tied to abortion care.
In recent days, Bernstein said the threat to mifepristone from the FDA has grown.. 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.
A press release sent from an anti-abortion advocate quoted her as saying Diamantas promised that reviewing mifepristone would be a “top priority” and that he was “pro-life.” Teylouni said she shares concerns that the process would become politicized.. “We continue to have concerns that the [review is] going to be politicized and not based in science and medicine. ” she said.
The Thursday ruling itself preserves a limited form of access while litigation continues.. Providers can continue to send mifepristone through the mail or to retail pharmacies as the case plays out in lower courts.. Earlier this month, the 5th U.S.. Circuit Court of Appeals reinstated previous FDA requirements that mifepristone be dispensed in person. a shift that threatened telehealth access—widely described as a lifeline for abortion care for people in states with and without abortion bans.
The Supreme Court initially stepped in earlier this month by issuing a ruling staying the appeals court decision, and it extended that stay on Monday before making its final decision Thursday to allow access to continue while Louisiana v. FDA remains in court.
Advocates now say attention is turning to timing and strategy. They warned that conservatives in the courts and members of the Trump administration could be weighing restrictions until after the midterms, trying to avoid what they call political blowback from 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. ” Bernstein said.. “We’ve all seen the reports of them slow-walking to the midterms. and we know why politically they might want to do so.”
Even with Thursday’s setback averted, advocates said the fight could shift to other avenues. Teylouni warned that if mifepristone can no longer be sent through the mail, medication abortion care can still be accessed, but not necessarily in the same way.
Mifepristone works by stopping the pregnancy from growing and initiating the separation of the embryo from the uterine lining. Misoprostol then causes contractions that expel the contents of the uterus.
Dr.. Ushma Upadhyay. a public health scientist at the University of California. San Francisco’s Advancing New Standards in Reproductive Health research coalition. described differences in how abortion protocols would look without mifepristone.. “Misoprostol can be safely and effectively used on its own to induce an abortion,” Upadhyay said.. But “the process of abortion ‘is prolonged when it’s with a misoprostol-alone protocol. ’” and “patients report higher levels of side effects. so a lot of cramping and a lot more bleeding.”
Despite the win on telehealth, Teylouni said advocates can’t assume the legal battle is over.. “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.”
Supreme Court Dobbs v. Jackson mifepristone telehealth Comstock Act Louisiana v. FDA Claire Teylouni Samuel Alito Clarence Thomas FDA safety review Kyle Diamantas Marty Makary Guttmacher Institute anti-abortion advocates