The key cases regarding healthcare being brought to the Supreme Court this term may seem unrelated to healthcare at first glance.
One concerns regulations on small fishing vessels. Another covers rules for cracking down on financial fraud. A third asks whether the Consumer Financial Protection Bureau can fund itself without congressional approval.
However, these three scenarios are part of a larger conservative initiative aimed at limiting the power of the administrative state. This could establish precedents that prevent the FDA from increasing access to abortion pills, the CDC from implementing measures for pandemic protection, and HHS from requiring insurance companies to cover drugs for HIV prevention, depression screenings, and other preventive care services.
There are multiple instances where health agencies are being challenged in lower courts, and the final decision may depend on the ruling of the Supreme Court this term.
A large number of legal professionals, patient supporters, and past government officials from both sides are concerned about the rise in cases, as they believe it could have severe consequences for the healthcare system. They fear that if the court makes moves to limit the authority of federal agencies in the near future, important decisions regarding health policies will be left to a Congress that is unable to reach a consensus.
Mark McClellan, a former FDA commissioner and CMS administrator under President George W. Bush, is among those warning that limiting the executive branch’s ability to make policy — especially health agencies making rules based on the latest science — would upend how government functions.
McClellan stated that this is a crucial aspect of successful governance. If this stability is disrupted and there is no efficient system in place to replace it, it will lead to increased uncertainty in healthcare and potentially less investment in ensuring the safety of Americans.
Conservative organizations leading the legal endeavors believe that, if successful, their efforts would restrict the powers of most federal agencies. They argue that bureaucrats have exceeded their authority in various areas, including health policy, and view these cases as a necessary corrective measure.
According to Erik Baptist, a senior counsel at Alliance Defending Freedom, it is normal for federal agencies to be held responsible when they do not comply with the law. Baptist is currently leading multiple legal challenges against federal agency powers, including the FDA’s regulation of abortion pills. He believes that there have been numerous instances where an agency claims to have expertise in a certain area, but goes beyond its legal authority to enforce new laws or rules on a large portion of society or industry. In these situations, it is the court’s duty to stop this unlawful behavior.
Conservative organizations have desired for some time to decrease the involvement of the federal government in healthcare and other domains. Recently, their endeavors have been met with less resistance through legal channels. A majority of ongoing cases have been directed towards a select few judges in Texas and the conservative 5th U.S. Circuit Court of Appeals, with the intention of obtaining verdicts that will limit the power of agencies striving to improve healthcare accessibility, combat illnesses, and regulate insurance and pharmaceutical companies.
“It is a deliberate attempt to utilize sympathetic judges in order to deprive individuals of their access to healthcare,” stated Leslie Dach, who previously served as a senior advisor to the Secretary of Health and Human Services under the Obama administration. “And although the repercussions may be severe for each individual case, the overall impact will be even more devastating.”
A few days prior to the start of the Supreme Court’s term on Monday, organizations advocating for patients with cancer, ALS, epilepsy, mental illnesses, and other medical conditions cautioned the justices about the potential consequences of limiting federal agency powers and shifting the responsibility of creating and revising regulations to Congress. In their amicus brief, they argued that this could result in chaos and negatively impact low-income individuals, elderly individuals, and people with disabilities.
Mary Rouvelas, the legal advocacy director and managing counsel at the American Cancer Society Cancer Action Network, is the lead author of a brief that highlights the current case regarding fishing boat regulations. This case challenges Chevron, which is a precedent where courts defer to federal agencies’ interpretations of laws. Rouvelas warns that if the justices overturn Chevron, it could have significant consequences, such as halting important updates to federal health programs and allowing groups to file lawsuits to challenge longstanding rules.
She stated that it is not feasible for Congress to constantly create laws whenever there are changes in science. She also expressed doubt in their ability to pass timely funding for annual programs, questioning their capability to define a “geographic area” for a particular nursing home statute.
Challenging the decision of Chevron is just one strategy. There are other cases currently before the Supreme Court, as well as potential future cases, that also focus on federal agencies in various manners. Some assert that Congress never gave authority to federal officials or advisors to create healthcare regulations. Others argue that agencies should not have the power to address “major issues,” such as vaccine mandates and abortion pill regulations, without direct consent from Congress.
A current case being reviewed by the justices involves the FDA’s power to oversee abortion pills. The outcome of the case will depend on whether the Supreme Court believes that the agency properly assessed the potential risks and made informed decisions, or if they acted in a random and unreasonable manner to increase the availability of the pills.
However, both sides involved in the legal case believe that it could have a significant impact on the power of the FDA. Recently, Student for Life informed its members that a ruling against Chevron would support their goal of banning abortion pills because judges would not be required to rely on the FDA’s knowledge. In contrast, the Biden administration and pharmaceutical companies have expressed concerns through statements and legal documents that overturning the agency’s policies allowing for the mailing and dispensing of these pills at local pharmacies could lead to further challenges to drug approvals and impede the FDA’s ability to create regulations based on scientific evidence.
Conservative organizations have effectively challenged numerous federal health policies in the past few years by employing comparable reasoning. They have taken aim at requirements for masks and vaccines, prohibitions on smoking in public housing, and price reductions for certain prescription medications. It is anticipated that they will continue to heavily rely on this strategy in the future.
Rachel Rebouché, a dean at Temple University’s Beasley School of Law who focuses on reproductive health law, stated that it will take time to significantly reduce agency discretion and expertise in determining effective policies.
The 5th Circuit is currently handling a new case that challenges over ten years of HHS regulations regarding preventive health services that insurance companies are required to cover without charging patients out-of-pocket fees under the Affordable Care Act. These policies have resulted in free STD tests, HIV prevention medication, and mental health screenings for millions of individuals.
The employers who hold conservative views in this case contend that the United States Preventive Services Task Force, consisting of non-Senate-confirmed outside professionals who were not selected by a Senate-confirmed agency leader, should not have the authority to enforce their suggested coverage for services.
Dach, a former HHS official, cautioned that if they are successful, insurance policies may never adapt to incorporate updated scientific findings or changing medical requirements.
According to him, individuals knowledgeable in the field must regularly improve these processes. This is why Congress implemented these systems. They are not qualified to dictate when a woman should undergo a mammogram or keep up with the most recent medical research to determine what has changed. It is unrealistic to expect Congress to review a list of preventative services and determine which ones are necessary and which are not. It may seem like a joke, but the consequences could be lethal.
After the implementation of Covid-19 mandates, which some viewed as government overreach, numerous conservatives are showing increased support for these challenges.
The Heritage Foundation has highlighted the upcoming Supreme Court cases as a chance to remind Congress of their responsibilities through a judicial intervention. They believe that federal bureaucrats have been given too much power and it is necessary for the House and Senate to reclaim it. The Christian Employers Alliance also expressed concerns in their brief to the court, stating that agency officials often push their own political agendas, using various vaccine and health insurance mandates as evidence of this overreach.
However, there are those on the conservative side who caution that the consequences of these cases may hinder efforts to ensure the safety of Americans.
According to Marc Scheineson, a previous associate commissioner at the FDA during President George H.W. Bush’s administration and current partner at Alston & Bird LLP, unclear laws passed by Congress give agencies the authority to interpret them through the rulemaking process. He expressed concern that if courts continue to challenge this authority, any industry or group with sufficient resources may be motivated to file lawsuits in order to overturn regulations they disagree with.
He stated that we will return to a time similar to the wild west, where the winner is determined by the size of their gun and how quickly they can draw it.
Scheineson added that should courts side with those seeking to disempower federal agencies, the government could have even more trouble retaining and recruiting workers — especially scientists — who could earn more in the private sector.
He stated that if their efforts are not being recognized and their labor is not being compensated, it diminishes their motivation to devote their lives to these matters.
The decisions made by the Supreme Court this term have the potential to hinder future policy creation for both conservative and progressive individuals.
The Trump government utilized the power of health agencies to promote Medicaid work requirements, limitations on scientific studies involving fetal tissue, and safeguarding job rights for doctors who refuse to provide contraception or other services that contradict their religious convictions. Progressive organizations attempted to challenge these regulations through legal action, just as conservative groups are currently doing with policies under the Biden administration.
According to University of Michigan law professor Nick Bagley, the main contrast is that conservatives currently hold a 6-3 majority in the Supreme Court, resulting in their higher chances of winning. This can be attributed to the natural course of events.
The current trend of lawsuits attempting to weaken the authority of the government, he noted, aims to restrict the extent of federal influence and undermine the choices of democratically-elected leaders.
He stated that regardless of who is responsible, it is extremely undemocratic.