Of Course Dobbs Didn't Completely "Return Abortion to the States"

After a brief delay, the Supreme Court stayed (over dissents from Justices Thomas and Alito) the latest Fifth Circuit gambit to try and take mifepristone off the market. There's plenty to talk about, and plenty of others will talk about it. But I did want to flag one talking point in the dissent that stood out to me for its hackishness.

Justice Alito described the Dobbs decision as having "restored the right of each State to decide how to regulate abortions within its borders." Allowing mifepristone to be sent through the mail, consequently, "undermine[s]" the Dobbs ruling insofar as it permits abortion medication to be sent to states that have sought to ban it. The immediate problem with this logic is obvious: Dobbs did not completely "return abortion to the states." Dobbs held that there was no federally-protected constitutional right to an abortion. But there could be myriad ways the federal government might pass regulations on abortion -- for example, via its power to regulate the safety and distribution of pharmaceuticals.

This point is not novel. Scott Lemieux wrote today that "making mifepristone available through telehealth 'undermines' Dobbs only if the holding was not that the Constitution was silent on abortion but that the Constitution is hostile toward abortion. Louisiana has never had any jurisdiction over the federal drug approval process."

But what I haven't seen flagged yet is just how quickly the dissenters abandon this farkakteh position that they obviously don't believe in the first place. Because you know far you'll have to look in U.S. Reporter to find a Dobbs Justice emphasizing ongoing federal authority on the subject of abortion? Approximately one page, to Justice Thomas' dissent, where he contends that the mailing of mifepristone is illegal nationwide under the Comstock Act! Whatever else one might say about that argument, it is precisely an assertion that federal law continues to have a say on abortion. Which -- of course conservatives believe! There's never been any doubt of that! Or more precisely, there's no doubt of that in circumstances where the federal government might seek to assert authority to limit abortion access, rather than protect it.

As always, the actual meaning of any Supreme Court precedent for the Court's conservatives is whatever they want it to mean, for however long it is convenient for it to carry that meaning. When the Supreme Court in Callais confirmed the continued vitality of the Allen precedent, that commitment lasted approximately two weeks. That's an anemic showing, but it is no match for the one page the ultra-right faction took to travel from insisting that Dobbs forecloses federal regulations on abortion to insisting that federal regulation already makes the distribution of abortion drugs illegal.