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

The U.S. Supreme Court ruled on May 15, 2026, that telehealth access to the abortion drug mifepristone may continue while the Louisiana v. FDA case proceeds in lower courts. The decision allows providers to maintain the distribution of the medication through the mail or to retail pharmacies, reversing a recent move by the 5th U.S. Circuit Court of Appeals to reinstate requirements that the drug be dispensed in person.

Justices Clarence Thomas and Samuel Alito were in the minority for the ruling. In his dissent, Justice Alito described the expanded access as a

“scheme” to get around their ruling in Dobbs v. Jackson that eliminated the nationwide right to an abortion in 2022.

Justice Alito noted that abortions have increased since the 2022 Dobbs decision, attributing the rise largely to telehealth access. Data indicates that in 2025, more residents of states with total abortion bans utilized telehealth provisions for medication abortion than traveled out of state for care. Medication abortions accounted for approximately two-thirds of all abortions in the U.S. In 2023.

Justice Thomas used his dissent to argue for a nationwide restriction on medication abortion based on the Comstock Act. Passed in 1873 as an anti-obscenity law, the act remains on the books but has not been enforced in decades. Thomas asserted that the law prohibits the mailing of abortion medication.

“The Comstock Act bans using ‘the mails’ to ship any ‘drug … for producing abortion,’” Thomas wrote. “Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise.”

The Comstock Act originally prohibited the mailing of contraceptives, pornography, and any device or drug used to produce an abortion. While some conservatives seek to use the law to implement a national abortion ban, legal scholars have argued the statute is unconstitutional on First Amendment grounds and otherwise unenforceable.

A Department of Justice memo from 2022 previously clarified that the law does not prohibit mailing drugs that could be used for an abortion, citing an insufficient basis to conclude that senders intend for the drugs to be used unlawfully.

Claire Teylouni, interim co-executive director of Reproductive Equity Now, warned that enforcing the Comstock Act could jeopardize the broader reproductive health care supply chain, potentially blocking the shipping of surgical tools and medication to states where abortion remains legal.

“We’re breathing a sigh of relief. I would say that the immediate threat to mifepristone is over,” Teylouni said, “But it’s certainly clear from reading those dissents that the threat … is far from over.”

Beyond the courts, advocates expressed concern over the Food and Drug Administration’s current approach to mifepristone. In late 2025, the FDA initiated a safety review of the drug, despite two decades of evidence regarding its safety. Anna Bernstein, principal federal policy adviser at the Guttmacher Institute, described the review as politically motivated.

The administration of the FDA underwent a leadership change earlier in May. Commissioner Marty Makary resigned, and Kyle Diamantas, a former lawyer, was appointed as his replacement on May 13, 2026.

Following his appointment, Diamantas reportedly spoke with anti-abortion advocates. According to a press release from one such advocate, Diamantas identified himself as pro-life and promised that the review of mifepristone would be a top priority.

Medical data supports the safety of the medication. The combined regimen of mifepristone and misoprostol carries a risk of serious adverse events of less than 1 percent. In comparison, the risk of maternal death associated with childbirth is approximately 14 times higher than the risk associated with abortion care.

Advocates also noted political pressures influencing the timing of restrictions. Bernstein stated that the Trump administration may be slow-walking efforts to restrict mifepristone to avoid political fallout before the midterms.

While the Comstock Act remains a primary legal threat, medical professionals noted that medication abortion is still possible without mifepristone. Dr. Ushma Upadhyay, a public health scientist at the University of California, San Francisco’s Advancing New Standards in Reproductive Health research coalition, explained that misoprostol can be used alone to induce an abortion.

However, Dr. Upadhyay noted that a misoprostol-alone protocol results in a prolonged process and higher levels of side effects, including increased bleeding and cramping.

The Supreme Court’s final decision on May 15 followed a series of procedural steps. The court had issued an initial stay of the 5th U.S. Circuit Court of Appeals decision earlier in the month and extended that stay on May 12, before the final ruling on Thursday.