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. 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. Jackson spotlighted a defining feature of “conscience-war” claims that one of us, 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. 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.