Mary Ziegler on the Next Phase of the Abortion Battle
JUDJ-Prepared Summary from August 12, 2026 | Who Decides? Reproductive Rights, Democracy, and the Future of America. The views and opinions expressed in this blog are those of the speaker.
In a recent America at a Crossroads discussion, Mary Ziegler, a professor of law at UC Davis and one of the nation’s leading experts on the legal history of the American abortion debate, examined the rapidly changing landscape of reproductive rights following the Supreme Court’s decision to overturn Roe v. Wade. Ziegler discussed how medication abortion, an obscure 19th-century law and growing conflicts between states could shape the next major legal battles over abortion access.
Dobbs Was the Beginning, Not the End
When the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, abortion policy was widely described as returning to the states. But Ziegler argues that the reality is far more complicated.
Despite abortion bans in numerous states, abortion remains accessible to many patients through medication and telehealth. Ziegler noted that abortion numbers have not declined as dramatically as many expected after Dobbs, creating pressure among abortion opponents to find new ways to restrict access.
That has increasingly shifted the debate from state legislatures to federal law.
Reviving a Law from 1873
One emerging strategy centers on the Comstock Act, an 1873 federal obscenity law that prohibits mailing certain abortion-related materials.
For decades, the abortion-related provisions of the law were largely considered dormant. Ziegler described the statute as essentially a “dead letter” that conservatives themselves once avoided because of its history as a “sexual purity law.”
Today, however, some abortion opponents argue that the Comstock Act could prohibit mailing or transporting abortion medication—and potentially medical equipment used in surgical abortions.
A future Justice Department adopting that interpretation could therefore create restrictions extending into states where abortion remains legal.
A New Battle Over Medication Abortion
Medication abortion has become particularly important because it can cross state borders through telehealth. That has also placed the FDA’s regulation of mifepristone at the center of ongoing litigation.
Ziegler warned that efforts to overturn or second-guess the FDA’s longstanding decisions could have consequences beyond reproductive health. If advocacy groups can successfully challenge decades-old drug approvals, similar strategies could potentially be used against other politically controversial medications.
A “Civil War of the States”
Perhaps the biggest unresolved question is what happens when states simply refuse to recognize one another’s abortion policies.
States including California and New York have enacted shield laws intended to protect providers who send medication to patients in states with abortion bans. Meanwhile, officials in states restricting abortion have pursued legal action involving providers and organizations outside their borders.
Ziegler described the resulting conflict as a potential “civil war of the states,” raising constitutional questions involving extradition and whether states must recognize judgments issued by courts elsewhere.
The conflict is even beginning to reach speech itself, with efforts to penalize organizations that provide information about accessing abortion medication.
Rather than settling the abortion debate, Ziegler’s analysis suggests that Dobbs has opened an entirely new chapter—one increasingly involving federal authority, interstate conflict and fundamental constitutional rights.
About America at a Crossroads
Since April 2020, America at a Crossroads has produced weekly virtual programs on topics related to the preservation of our democracy, voting rights, freedom of the press, and a wide array of civil rights, including abortion rights, free speech, and free press. America at a Crossroads is a project of Jews United for Democracy & Justice.