Mifepristone Is Safe for Now—but Comstock Is Waiting in the Wings

We need to prepare for the possibility of misoprostol-only abortions in the near future, and a national abortion ban in the long term.

People protest with signs for abortion rights in front of the Supreme Court
The battle over mifepristone isn't over: The Supreme Court's unanimous decision dismissed the case on standing, but sent it back to the lower courts for consideration. Shutterstock

Conservatives want to ban abortion pills. And if they can’t do that, they want to make it as difficult as possible for people to get their hands on them—or, better yet, scare people out of trying in the first place.

Today’s Supreme Court decision in FDA v. Alliance for Hippocratic Medicine didn’t give the conservative legal movement everything it wanted on this front. However, it’s unlikely to be the end of the legal battle over mifepristone or medication abortion more broadly.

The case was a test balloon, filed by the conservative legal juggernaut Alliance Defending Freedom in the Northern District of Texas, where it was all but certain to be decided by Judge Matthew Kacsmaryk, the Trump appointee handpicked to churn out ultra-conservative activist rulings that are then appealed up to the also notoriously conservative U.S. Fifth Circuit Court of Appeals.

That’s precisely what happened, though Kacsmaryk’s ruling—which would have reversed the FDA’s approval of mifepristone entirely—was too extreme even for the Fifth Circuit, whose decision on appeal stopped short of a full reversal but would have reinstated onerous and unnecessary old restrictions on mifepristone. Among other things, the ruling would have made it impossible to prescribe mifepristone via telemedicine.

But this morning, the Supreme Court ruled—in a surprising unanimous decision—that the anti-abortion doctors who brought the case didn’t have legal standing. In other words, they didn’t prove that they are actually harmed by the FDA’s approval of mifepristone.

However, much as I hate to be the bearer of bad news, the legal battle over medication abortion is far from over. Even this specific case still has legs. That’s because Kacsmaryk granted Idaho, Kansas, and Missouri permission to intervene in the case. The Supreme Court’s ruling leaves open the possibility that the case ends up back in Kacsmaryk’s court, where these three states could revive it.

An easy path to a total national abortion ban

An undead case would be awfully fitting, because the real goal behind FDA v. AHM was to resurrect an undead law: the Comstock Act, an 1873 anti-obscenity law that remains on the books today.

Named for anti-vice crusader Anthony Comstock, the Comstock Act banned the mailing of “obscene” materials, including anything used “for the prevention of conception, or for causing unlawful abortion.” Anti-abortion leaders—especially lawyers like Texas SB 8 architect Jonathan Mitchell and Project 2025 abortion policy lead (and former Trump Department of Health and Human Services official) Roger Severino—are, frankly, obsessed with the Comstock Act.

That’s because, in the eyes of these conservative legal strategists, the Comstock Act provides an easy path to a total national ban on abortion and contraception. Think about it: What drug or device used for abortion or contraception hasn’t been shipped at some point? And just in case you thought these restrictions on mail pertain only to the United States Postal Service, think again: The Comstock Act covers items shipped or delivered in any way, which would include today’s UPS, FedEx, and even bike messengers.

All a future president would need to do is to direct their Department of Justice to enforce the Comstock Act and get a conservative Supreme Court to back them up in the event of any legal challenges, and there you have it: A total ban on abortion, contraception, and anything conservatives might deem “obscene”—no congressional action required.

As anti-abortion activists and conservative lawmakers have become more and more explicit about their Comstockian vision for the future, Democrats have come under pressure to repeal the Comstock Act. A smattering of Democrats have come out in favor of a Comstock repeal.

Every time, I email their offices asking, “Where’s the bill?”—and I’m always told it’s on the way.

But in April, a report from NOTUS revealed that Democrats are under pressure from reproductive rights groups, including Planned Parenthood, the Center for Reproductive Rights, and the American Civil Liberties Union, not to introduce a Comstock repeal. These groups argue that trying to repeal the Comstock Act gives credence to conservatives’ interpretation of the law, which they believe is incorrect.

Legal scholar Rachel Rebouché recently put it most succinctly, speaking at ComstockCon in May: “There is the concern that talking about Comstock validates the idea that it’s an abortion ban,” she said. “But the fact that it’s an incorrect interpretation isn’t going to stop any anti-abortion person from using it.” Reproductive rights organizations are denying this reality, to all our peril.

During oral arguments in the mifepristone case, Justices Clarence Thomas and Samuel Alito both asked questions about Comstock indicating that they do see it as an abortion ban. However, somewhat surprisingly, there is no mention of the Comstock Act in either the Court’s opinion, written by Justice Brett Kavanaugh, or in Thomas’ concurrence.

It may just be that this case—brought by a bunch of doctors (and dentists) claiming they were injured by the mere possibility they may one day have to care for a patient experiencing complications from medication abortion, which are exceedingly rare—wasn’t the right vehicle. A challenge from three anti-abortion states, on the other hand, might be just the ticket.

In fact, issuing decisions that read as moderate for now and waiting for a future president to open the door to a Comstock reanimation would be a strategic move for the Court, whose exalted image has taken such a hit over the last few years.

Misoprostol-only abortion: A safe but imperfect backstop

When it comes to the legal maneuvering around mifepristone, there will be other care options even in the worst-case scenario where a court takes unprecedented action to reverse the FDA’s approval of a safe and effective drug.

After all, though mifepristone is often referred to in the media as “the abortion pill,” it doesn’t work on its own. It has to be used in combination with another drug, misoprostol. And if any one drug is “the abortion pill,” it’s misoprostol, because misoprostol can be used alone.

If mifepristone is removed from the market, we have a backup.

However, in randomized controlled trials—generally considered the gold standard for scientific research—the misoprostol-only regimen has been found less effective than the combined regimen. Studies find on average that misoprostol alone works just under 80 percent of the time, compared to the combined regimen, which is 95 percent effective or more.

This raises a serious concern for people in states where abortion is criminalized: Though misoprostol is very safe, an incomplete abortion requires follow-up care. And people in the United States who have been criminalized for abortion or other pregnancy outcomes are most frequently turned into police by health-care workers. In the United States, exposure to the health system means potential exposure to criminalization.

But these studies of the misoprostol-only method vary widely in their protocols, especially when it comes to dosing. Randomized trials using the regimen we currently know to be most effective—for early pregnancy, four tablets of misoprostol (for a total dose of 800 micrograms) taken three times every three hours—find higher rates of efficacy, in some cases north of 90 percent.

An encouraging recent review from Ibis Reproductive Health, which compared clinical trial data to observational studies of self-managed abortion, concluded that efficacy rates of the misoprostol-only method are the same or in some cases better than those found in clinical trials.

This, overall, is good news. But on the negative side, research and personal experiences suggest that misoprostol-only abortions may have more intense side effects like fever, chills, and diarrhea when compared to the combined method. It’s thought that letting the pills dissolve in the vagina, rather than in the cheek or under the tongue, may lessen these side effects, but unfortunately, because pill fragments could be seen by a health-care provider in the vagina in the event a person does need to seek follow-up care, this isn’t advised in places where criminalization is a risk. Misoprostol-only abortions also typically take longer.

So, if mifepristone is removed from the market, we have a backup. Abortion providers are ready to start administering it right away if need be. But according to the Guttmacher Institute, 63 percent of all abortions in 2023 were medication abortions. That’s approximately 642,700 abortions—and that estimate doesn’t include people who self-manage abortions outside the medical system. There’s no escaping that we’re talking about forcing hundreds of thousands of people to undergo a longer and potentially more painful abortion process for absolutely no reason.

All coming back to the Comstock Act

And then there’s the Comstock Act, waiting in the wings, threatening to cut off that lifeline, too.

Enter ComstockCon, organized by journalist Melissa Gira Grant and technology lawyer Kendra Albert, and hosted by the Initiative for a Representative First Amendment at Harvard Law School. It was a one-day conference intended to take this possibility seriously, even if the broader reproductive rights movement doesn’t want to.

Even in Comstock’s heyday, prosecutions related to contraception and abortion were never as common as those related to pornography and other forms of “obscenity,” historian Lauren MacIvor Thomspon noted during her remarks at the conference. Yet feminist reformers rightly saw Comstock as one of the biggest obstacles to their efforts, thanks to its chilling effect. All it takes is a few high-profile prosecutions, or even a few alarming headlines, to scare people out of doing something you don’t want them to do.

Historian Andrea Friedman added that the federal Comstock Act wasn’t even the primary method of enforcement—it was copycat state-level versions of the law that saw the most use. Many of these laws remain on the books, too.

And perhaps most alarming of all, scholar and judge Jennifer Kinsley illuminated the fact that Comstock “obscenity” prosecutions related to pornography never really ended. The Comstock Act isn’t dead at all—it’s just that it hasn’t been being used to enforce bans on abortion and contraception.

In listening to all of this, I couldn’t help but think of my recent reporting trip to Brazil. We have Brazilian women—mostly poor and working-class women of color—to thank for the very existence of medication abortion. After misoprostol was approved as an ulcer drug in Brazil in 1986, women realized they could take advantage of the warning on the label not to take the drug during pregnancy. They started using it to induce miscarriages, which they could then go to the hospital to safely finish, with no evidence remaining of what they’d done.

But the government quickly took note of these increased hospitalizations and their origin, and began to place new restrictions on misoprostol. The most severe of these came in 1998, when misoprostol was added to the country’s list of controlled substances. (Sound familiar? Perhaps that’s because Louisiana lawmakers just classified misoprostol and mifepristone as controlled substances.) Ever since, the drug has been available only in hospital settings in Brazil, where it’s kept under lock and key. Even reproductive health clinics, like one I visited in São Paulo called Coletivo Feminista Sexualidade e Saúde, can’t obtain it.

photo of a room with windows open
Coletivo Feminista Sexualidade e Saúde in São Paulo (Garnet Henderson/Rewire News Group)

Administrative regulations also limit the sharing of information about misoprostol online and on social media. In 2019 Senator Damares Alves, one of Brazil’s leading anti-abortion voices who served as Minister of Women under far-right president Jair Bolsonaro, urged prosecutors to bring criminal charges against the feminist magazine AzMina for publishing the World Health Organization guidelines for medication abortion.

AzMina refused to take the information down. After publishing the instructions, they received nearly 600 emails from women seeking abortion support, said Carolina Oms, the magazine’s executive director. But reporters were also harassed and doxxed. No criminal charges were ever filed.

In Brazilian health-care settings, misoprostol-only abortions are the sole option. Mifepristone has never been approved there—anyone who is able to take it is getting pills that came in from outside the country, a rarity. Selling pills illegally is a serious crime carrying penalties of ten to 15 years in prison, and the restrictive environment has allowed bizarre misinformation to flourish.

In São Paulo, I met with two members of an accompaniment network who help people find and use abortion pills. Counterfeit pills are common, they said, and even when the pills are real, people often receive odd instructions from pill sellers. Swallow some and let the others dissolve. Stay in bed for two days. Don’t eat anything. Run up and down the stairs.

Worst of all, some sellers instruct people to take pictures of their bleeding and upload them to a WhatsApp group, exposing them to potential criminalization risk.

I also spoke with pharmacist Leticia Oening, who recently finished her Ph.D. at the Federal University of Rio de Janeiro. Her research focused on women who took misoprostol, who she interviewed in a Rio de Janeiro hospital. The most common problems she identified were misconceptions about dosing and the fact that people often aren’t sold enough pills for a complete abortion.

All of this reminded me of things I’ve heard in my reporting here in the United States. For example, misconceptions about how to use abortion pills, and what is and isn’t legal, abound online, according to Online Abortion Resource Squad’s Ariella Messing. But organizations like OARS that work diligently to correct this misinformation are desperately underfunded, even as they fix the foibles of larger and better-funded organizations on a daily basis.

And every step that conservatives take toward banning medication abortion—whether by introducing new state-level restrictions or going all-in on a Comstock resurrection—ratchets up the fear and confusion. Meanwhile, our largest and most powerful reproductive rights organizations lobby against legislation that might help.

We have an opportunity to reverse course and try to avoid some of the outcomes I saw in Brazil. Will the people with the money and the power take it?