Gostin and Wetter are experts in health law.
By early July, the Supreme Court will release its most controversial rulings for the 2023-2024 term. The Court’s 6-3 conservative supermajority has already overturned Roe v. Wade, sharply limited affirmative action, expanded gun rights, and hampered the government’s ability to address threats like COVID-19, climate change, and LGBTQ+ discrimination.
This term, a slew of cases could reshape health policy. The top health cases to watch pertain to abortion, gun violence, and the powers of health and safety agencies. Here’s an overview of the potential rulings and their implications.
Abortion: Emergency Medical Treatment and Mifepristone
In the 2 years since the Supreme Court overturned the right to pre-viability abortion under Roe v. Wade, 21 states have moved to ban or severely restrict reproductive rights. Some states only allow abortion under the narrowest of circumstances, such as when the life of the pregnant person is in grave danger. Anti-abortion groups have also attacked the abortion medication mifepristone, a safe and effective drug used in nearly two-thirds of pregnancy terminations in the U.S.
The two major cases pending Supreme Court decision center on these two issues: abortion as emergency medical treatment and the abortion drug mifepristone.
In Idaho v. United States, the Department of Justice (DOJ) argues that Idaho’s abortion ban, which prohibits abortion unless necessary “to save the life of the pregnant woman,” violates the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals that receive federal funds to treat all patients experiencing medical emergencies. In 2022, HHS clarified that emergency stabilizing care under EMTALA includes abortion under certain circumstances. During oral arguments in this case, the DOJ’s lawyer highlighted how delaying emergency abortion care risks sepsis, hysterectomy, and preeclampsia that could lead to kidney failure and other grave risks. Yet Idaho asserted that the state alone has the power to determine the appropriate standard of care — as if it were a political rather than a medical question.
Preventing pregnant individuals from accessing abortion in medical emergencies puts their life in jeopardy. It also puts healthcare providers in legal and ethical jeopardy, forcing them to choose between medical standards or coercive state law. Providers have asked patients to wait in parking lots or return home until their condition is severe enough to qualify for their state’s abortion exemption, highlighting the senseless danger of states’ restrictive laws. It’s important to stress that abortion is healthcare.
In the second abortion case, FDA v. Alliance for Hippocratic Medicine (AHM), the plaintiffs (an anti-abortion health professional organization), argued that the FDA acted unlawfully when it first approved mifepristone in 2000, and more recently in increasing access to the drug (e.g., allowing it to be prescribed up to 10 weeks of pregnancy instead of 7 weeks in 2016, and allowing it to be dispensed at certified pharmacies in 2023). AHM further argues that the 1873 Comstock Act prohibits mailing matters “intended for producing abortion.” Yet, the DOJ has interpreted this ancient law as inapplicable to the lawful mailing of approved abortion medication.
During oral arguments, several justices questioned whether AHM even has “standing” to bring the case (AHM is required to demonstrate harm or likely harm). AHM claims harm because its members have been forced to care for patients who have experienced complications from mifepristone, in some cases having to perform abortion. But that fails to account for the fact that mifepristone is one of the safest prescription drugs on the market, making these cases rare.
A ruling in favor of AHM, and their standing to bring the case, would have far-reaching consequences: not only preventing individuals from accessing safe and effective abortion medication, but also opening the door to a flood of challenges against FDA’s regulation of other products. This would impede FDA’s ability to make scientific determinations, balancing safety and access to medicine, in the best interest of public health. It would also impact pharmaceutical companies, which rely on FDA to approve and regulate their products.
Firearm Safety: Domestic Violence
In 2022, the Supreme Court overturned a New York law that restricted permits for carrying guns outside the home. In doing so, it enunciated a new standard that made it far more difficult to enact commonsense firearm safety laws, essentially requiring modern laws to be sufficiently similar to those in place in 1791 when the Second Amendment was enacted, or in 1868 when it was applied at the state level. This term, the Supreme Court will rule on the constitutionality of a federal gun law designed to protect those experiencing domestic violence, which notably, wasn’t illegal in most places before women’s rights movements in the 1970s. In the 18th century, women were regarded as property of their husbands. How could that be a legal standard used by the Supreme Court today?
U.S. v. Rahimi concerns a Texas man who was convicted under a decades-old federal law for possessing a firearm while subject to a domestic violence protective order. Rahimi challenged the federal law as a violation of his Second Amendment right to bear arms. The 5th Circuit Court of Appeals agreed, finding no sufficiently similar law from the late 1700s or 1800s. In turn, the government has countered that historical restrictions have long included laws that deny gun ownership to those who are not “responsible and law-abiding citizens.” In reaching a decision, the court will likely weigh the level of specificity that modern restrictions must have in relation to their historical analogues.
If the Supreme Court determines that the relation between the federal law being challenged and its alleged historical analogues is too general, it will strike down the law, eliminating a key protection for victims of violence. Over the past 25 years, this federal law has prevented the purchase of over 77,000 guns by people subject to domestic violence protective orders. Further, depending on the Court’s analysis, it could call several other laws into question that are designed to protect vulnerable populations from gun violence.
Agency Powers to Safeguard Public Health, Safety, and the Environment
Over the past several years, the Supreme Court has significantly eroded the ability of federal administrative agencies to effectively implement laws designed to protect public health and safety. Currently pending are two key cases whose rulings could take a drastic step toward further deregulation.
The cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, were both brought by commercial fishing enterprises that challenged a federal regulation requiring fishing boat operators to pay third-parties to conduct federally-required compliance checks. They argue that the regulation is inconsistent with a fishery conservation statute. The lower courts upheld the regulation under the 40-year old precedent, Chevron v. Natural Resources Defense Council (1984), which allows agencies to reasonably interpret their statutory authority when issuing regulations. Yet, the fishing enterprises, which are backed by special interest groups, argue that Chevron is unconstitutional because it gives too much power to federal agencies instead of allowing the judiciary to resolve statutory ambiguities.
Overturning or weakening Chevron would have major implications for health policy, taking decisions out of the hands of career subject matter experts and into those of judges. During oral arguments, the liberal justices stated that overturning Chevron would turn the Supreme Court into “a policymaker by majority rule,” with the justices ruling on highly technical and nuanced issues in which they have limited, if any, expertise. It would dismantle a framework in which Congress has relied upon agency expertise to fill in regulatory gaps when implementing complex initiatives. Under the resulting regulatory gaps, our food, medicine, medical devices, water, air, healthcare, and workplaces would become more vulnerable to health and safety risks. And from a jurisprudence perspective, overturning a 40-year-old ruling that has been reaffirmed countless times demonstrates the Court’s willingness to flout stare decisis, a venerable legal principle to stand by existing precedent.
High Stakes Ahead
The release of Supreme Court decisions in the weeks ahead could bring tumultuous changes to the health and public health legal landscape. Especially at stake is the health of some of our most vulnerable citizens: those needing emergency abortion care, those experiencing domestic violence, and those relying on the basic protection provided by federal regulatory agencies.
Lawrence O. Gostin, JD, LLD, is distinguished university professor, Georgetown University’s highest academic rank, where he directs the O’Neill Institute for National & Global Health Law in Washington, D.C. He is also director of the World Health Organization Collaborating Center on National & Global Health Law, and the author of Global Health Security: A Blueprint for the Future. Sarah Wetter, JD, MPH, is a senior associate with the O’Neill Institute.
Source : MedPageToday