When Justice Samuel Alito wrote the majority opinion in Hobby Lobby v. Burwell 10 years ago, he provided answers to questions that no one had asked—at least, officially. The plaintiffs, two businesses owned by Christians, objected to a mandate in the Affordable Care Act requiring health insurance providers to cover types of birth control known as emergency contraception, or E.C. Colloquially known as the “morning-after pill,” E.C. works after sex to prevent pregnancy by blocking sperm from fertilizing an egg or by preventing the release of an egg in the first place. But anti-abortion activists believe that morning-after pills and IUDs prevent implantation of a fertilized egg in the uterus, which they say is tantamount to an abortion.

The Supreme Court ruled for the plaintiffs on the grounds that the contraception mandate violated the religious beliefs of these employers, who believed that four methods of birth control (two kinds of E.C. pills—Plan B and Ella—and two IUDs) are abortifacients. In his opinion, Alito wrote that those four methods “may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.” Then, in a footnote, he explained that the plaintiffs believe life begins at fertilization, while government scientists say it starts at implantation.

Alito didn’t have to say all of that to get to the ruling. “It wasn’t necessary to dispose of the case,” said Mary Ziegler, a law professor at the University of California, Davis School of Law and an expert on the history of legal battles over abortion. “He could have just said, ‘These people believe this.’” (Speaking of Alito yapping, Hobby Lobby is the same case in which he allegedly leaked the outcome to conservative donors.) Now that Roe v. Wade is gone, Alito’s opinion could become an even bigger gift to the anti-abortion movement than it was a decade ago, said Melissa Murray, a law professor at the New York University School of Law.

“Post-Dobbs, the question surrounding some of these forms of contraception is whether, in fact, they can be reclassified or re-characterized as abortifacients. And then the question isn’t about contraception, it’s about abortion,” Murray said. “Hobby Lobby laid the foundation for it.”

What lawmakers consider to be an abortifacient is increasingly important given that the GOP is scheming to ban abortion without Congress. When the Supreme Court hears arguments tomorrow in a case that could restrict access to the abortion pill mifepristone, it will also contend with a legal theory cooked up after the fall of Roe: that a zombie Victorian-era abortion........

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