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The Supreme Court restored telehealth access to abortion pills on Thursday in an emergency order that provoked seething dissents from Justices Clarence Thomas and Samuel Alito. With just the two noted dissents, the court halted a decision by the 5th U.S. Circuit Court of Appeals that had prohibited providers across the country from prescribing and mailing mifepristone through telemedicine. Blue states have preserved access to this drug, the first used in a medication abortion, by authorizing their providers to prescribe and mail the pills across state lines. At Louisiana’s request, the 5th Circuit had tried to halt this flow from mifepristone into states that criminalize reproductive health care, but SCOTUS has kept the pipeline open—for now. In dissent, Thomas accused these providers of participating in a “criminal enterprise” and implied that they should be imprisoned. Alito, meanwhile, fumed that blue states had undermined his decision overturning Roe v. Wade by outsmarting anti-abortion lawmakers.
On this week’s Slate Plus bonus episode of Amicus, co-host Mark Joseph Stern discussed Thursday’s decision with Madiba Dennie, deputy editor of Balls and Strikes and author of The Originalism Trap. An excerpt of their conversation about Thomas and Alito’s dissents, below, has been edited for length and clarity.
Mark Joseph Stern: Let’s start with Thomas’ dissent, which was insane. He suggested that abortion providers who mail mifepristone should be thrown in prison rather than granted relief by the Supreme Court. He claimed: “It is a criminal offense to ship mifepristone for use in abortions.” And he added that the drug’s manufacturers “are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise,” because they cannot “be irreparably harmed by a court order that makes it more difficult for them to commit crimes.”
It’s actually heavily contested whether the Comstock Act applies to this conduct; the Biden administration said it did not. But set that aside. What do you make of Justice Thomas trying to make the Comstock Act great again and declaring that all these providers who mail abortion pills are felons who deserve to be locked up?
Madiba Dennie: He describes these pharmaceutical companies as if they’re some guy on the corner selling heroin. “Profits from their criminal enterprise”? Someone’s been watching too much crime TV. But it really is egregious, and it’s trying to legitimize what was once a fringe theory that the Comstock Act does apply here and should be used to prosecute so many people. Think about how many people would be caught up in this: The companies themselves, the doctors, the pharmacies, the patients—this is threatening to incarcerate all of them for the crime of pursuing or providing basic healthcare and helping make that possible. It’s truly absurd. I think it just shows how far gone Clarence Thomas is. The language is on another level.
Shaun Ossei-Owusu
It Was One of DOGE’s Most Absurd Abuses. A Court Finally Exposed It.
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We should note that Thomas’ language here comes straight from far-right anti-abortion advocates, right? They have been saying for years that this is a “criminal network” and a “criminal conspiracy.” And Thomas just copies and pastes that stuff right into his dissent.
We’ve seen this trend from Thomas for a while. He always describes abortion as this really nefarious operation; he’s previously called it racial eugenics. With this dissent, he saw the opportunity to mix in criminality for good measure.
Let’s turn to Justice Samuel Alito, whose dissent is slightly less crazy but way funnier because he’s big mad. Alito complained that blue states are undermining his decision in Dobbs, which overruled Roe v. Wade, by allowing their providers to mail medication abortion into states where they’re banned. Alito actually pointed out that there are more abortions happening in Louisiana now than before Dobbs because of telehealth mifepristone. And he faults the FDA for “facilitat[ing]” this “felonious” conduct.
We should just pause to note here that Louisiana, if it wants, can choose to arrest people who use abortion pills under Dobbs. It already has laws that prohibit the dispensation of abortion pills. It has many tools to persecute people who exercise or facilitate reproductive freedom within its borders. What Louisiana cannot do is reach across its state lines into New York and prosecute or fine a New York provider who’s engaging in conduct that’s completely legal under her state’s laws. That’s what Alito can’t wrap his head around. It seems like he really thought Dobbs was going to end abortion in red states forever, and he’s sore as hell that blue states outsmarted him.
It was honestly pretty funny that he’s so appalled there are more abortions happening now than before Dobbs. It gives away the game a bit that this was never actually about restoring freedom to the states, as he claimed. It was just about ending abortion. And he’s upset that it didn’t do that.
Alito talks all about Louisiana’s sovereign right to enact these anti-abortion laws. But what about New York’s sovereignty? What about New York’s right to enact pro-choice laws? He really does give the game away—he thinks anti-abortion laws are just and legitimate while pro-choice laws are illegitimate and must be blocked.
It was interesting how he portrayed shield laws in blue states as something untoward or nefarious targeting red states. He doesn’t see them as protecting doctors in those states that continue to allow mifepristone. He thinks they’re just trying to mess with red states and undermine red states’ ability to ban abortion. He uses this comical, criminal-esque language, calling shield laws a “scheme” and an “operation.” But really, these blue states are just trying to allow their doctors to continue providing lawful services to their patients, wherever those patients may be.
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It Was One of DOGE’s Most Absurd Abuses. A Court Finally Exposed It.
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What’s jarring to me is that we’ve had this conversation before, more than 150 years ago. Today’s shield laws are so similar to the personal liberty laws from the 1800s, when free states said: We’re not going to return Black people who escaped from slave states. Here, again, we have judges like Alito suggesting that unfree states should be able to reach into free states and impose their laws on everyone else—to impose their unfreedom across the whole country. They’re saying that free states should not be able to assist other people fleeing injustice. These are the reasons why we have the 14th Amendment; it’s exactly the kind of thing the Constitution should prevent. But because the right-wing movement has been dismantling the Reconstruction Amendments, that leaves us where we are today instead.
Right. In Alito’s view, red states have absolute freedom to persecute abortion providers and patients, while blue states have no authority to protect them. It’s so obvious what he’s doing here. By the way, we should give a shout-out to the law professors who devised and promoted shield laws—David Cohen, Rachel Rebouché, and Greer Donley. They’ve made Sam Alito very mad. So don’t ever let anyone tell you law review articles don’t matter.
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