Conservatives Are Getting Comfortable Talking Openly About a National Abortion Ban
After this week’s oral argument, few court watchers believe the Supreme Court is now ready to limit the Food and Drug Administration’s authority to approve mifepristone, a drug used in more than half of all abortions, as opponents of abortion sought. At oral argument in FDA v. Alliance for Hippocratic Medicine, it did not appear that the plaintiff doctors persuaded the court that the law inflicted injuries that would give them standing to sue. The reason for the justices’ skepticism is not hard to find. The doctors built their case on a mountain of remote possibilities. Patients might suffer complications from mifepristone—a drug with an impressively low complication rate—and might seek treatment at emergency rooms, where the plaintiffs may happen to practice, when the plaintiffs might not be able to find another physician willing to intervene. And all of that might mean that the plaintiffs would have to act in violation of their conscience. But then again, it might not. That’s why this case seems dead on arrival: The justices seemed unwilling to engage in the sort of rank speculation the plaintiffs have in mind. If this chain of hypotheticals is enough, anyone can bring a constitutional challenge to any drug approval or any law.
But the case was also a vehicle for advancing ever more expansive conscience-based arguments that have become common currency among Christian conservatives—claims of the kind we have seen in well-known cases like the 2014 Hobby Lobby decision recognizing conscience objections to the contraceptive mandate of the Affordable Care Act or even last year’s ruling in 303 Creative v. Elenis that allowed a conservative Christian graphic designer to refuse to make custom websites for same-sex weddings.
Today, those with conscience-based objections seek more than to pray or dress in conformity with religious belief. They object to laws providing Americans access to health care or freedom from discrimination. Compliance with these laws, they claim, would make the objector complicit in the assertedly sinful conduct of others.
Objectors bringing this new generation of complicity-based conscience claims invite courts to deny other Americans the protections of the law. In the FDA case, the plaintiffs do not even seek an exemption from the law; through an expansive standing claim, the doctors claim the only way the court could protect their conscience is to strike down FDA approvals providing all Americans access to medication abortion. Simply having mifepristone on the market, they argue, risks making them complicit in abortion.
Justice Ketanji Brown Jackson zeroed in on the problems with this argument. She observed that Erin Hawley, the attorney for the Alliance for Hippocratic Medicine, had identified a “broad” and “narrow” idea of conscience. The “narrow” reading was straightforward: “participating in a procedure.” This reading had problems of its own: In fact, no doctor was obliged to prescribe mifepristone, and in any event, federal law provides doctors conscience protections.
Yet Hawley didn’t think complicity ended there. Jackson seemed confused. Did Hawley mean that a handful of other doctors who participated in post-abortion procedures, such as the removal of tissue, were also complicit? Or was Hawley asking the court to recognize the complicity claims of someone who worked in an emergency room where abortions took place, or handed an abortion provider a water bottle?
Jackson spotlighted a defining feature of “conscience-war” claims that one of us (Reva Siegel), writing with Douglas NeJaime, has identified: Conservatives assert ever-expanding complicity-based conscience claims, urging the government to accommodate their claims without making any provision for other Americans who would lose the protection of law. Appealing to the value of conscience obscures the material and dignitary harm that accommodating the objection inflicts on others.
Solicitor General Elizabeth Prelogar stressed this point: While the plaintiffs could not say their conscience had been or would be harmed, their claim to conscience obscured harm done to a variety of other parties. That includes the FDA, which had its own scientific judgments displaced, and the pharmaceutical industry, which relies on the FDA approval process to ensure some sort of uniform industry standards. First and foremost, it includes, as Prelogar noted, “women who need access to medication abortion.”
Conscience claims have been alluring to conservatives because, like colorblindness, they allow conservatives to speak as a “minority,” and to assert traditional family values as individual freedom claims. But there is a telling shift. When groups like Alliance Defending Freedom asserted complicity-based conscience claims at the time of Hobby Lobby, they worried about losing in a Supreme Court that was far less conservative—and about alienating a Republican Party that still prioritized electability rather than ideological purity.
By contrast, in Alliance for Hippocratic Medicine, ADF talked not only about protecting women or safeguarding conscience; it made claims around the Comstock Act, a symbol of Victorian sexual morality focused not on protecting fetal life but on discouraging illicit sex, that ADF seeks to reinvent as a de facto national abortion ban. ADF argued that FDA could not have had the authority to approve telehealth abortions in 2021 because the Comstock Act bars the mailing of abortion pills—and indeed, any abortion-related item. Justices Clarence Thomas and Samuel Alito both seemed interested in transforming the 1873 Comstock Act into an abortion ban that American voters would never choose to enact. Alito seemed shy about mentioning Comstock by name, instead referring to the hard-to-recognize number in the U.S. Code. Thomas was not so reserved, all but telling attorneys for Danco, the maker of the name-brand mifepristone, that the Comstock Act barred the mailing of the drug.
The very fact that ADF wants to talk about the Comstock Act is remarkable. It seems unwise to hitch the anti-abortion movement’s star to a 19th-century anti-vice movement known for “Comstockery”: censoring political speech, undermining democratic norms, and condemning any form of sex not intended for procreation.
Voters have already rejected state abortion bans. Just imagine what most Americans would make of it if an already unpopular Supreme Court interpreted a law from 1873 as a sweeping, punitive zombie abortion ban. But worrying about the public’s reaction assumes the movement is seeking to persuade voters rather than simply looking for ways to use power to enforce traditional family values and punish those who become pregnant or might provide them medical care. Anti-abortion groups are planning to revive enforcement of the Comstock Act if Donald Trump wins the presidency, claiming they would not need Congress to act.
The argument in the mifepristone case was a potent reminder of why conservatives have gravitated to conscience claims—and demonstrated the hidden harms that these claims can inflict on other Americans. But the conversation at the Supreme Court this week also suggested that conservatives are preparing to express the values underlying complicity-based conscience claims more openly. As it gains power, members of the anti-abortion movement seem increasingly ready to take off the mask.
