by Lawrence O. Gostin and Sarah Wetter

MEDPAGE TODAY

— A slew of cases this term could reshape health policy.

Undecided Issues still before SCOTUS which should be decided this month. The Justices will then take off for a bit to reconcile the decisions they made causing issues amongst the population. Nothing unusual here, it happens every year. This group of 6-3 appear to be more partisan (right-wing) than prior Justices.

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.

• 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.

Mifepristone Decided: The Supreme Court has unanimously dismissed a case that would have limited access to mifepristone, one of the two drugs used in a medication abortion. The decision leaves access to the abortion drug unchanged for now.

In the ruling, the high court’s justices said that the collection of anti-abortion physicians challenging the drug’s availability had not shown they had been directly harmed by the federal Food and Drug Administration’s 2016 and 2021 decisions to expand the use of mifepristone. As a result, the court’s majority said, they did not have the right to file suit.

“The federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions,” said the opinion, authored by Justice Brett Kavanaugh. “The plaintiffs may present their concerns and objections to the President and FDA in the regulatory process, or to Congress and the President in the legislative process. And they may also express their views about abortion and mifepristone to fellow citizens, including in the political and electoral process.”

Firearm Safety: Domestic Violence

In 2022, the SCOTUS overturned a New York law restricting permits for carrying guns outside the home. In doing so, it created a new standard (Thomas) making it far more difficult to enact sensible firearm safety laws. It requires modern laws to be mostly similar to those in place in 1791 (the Second Amendment was enacted). Or the same as in 1868 when it was applied at the state level. This term, SCOTUS 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: A Texas man 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 modern restrictions must have in relation to their historical analogues.

Some Discussion (more at the link): It is interesting. Early on in1619 Jamestown enacted laws restricting the ownership of weapons by hostiles so to speak. Advocates’ assumption is such precedents are few and far between, but thanks to the work of researchers and the digitization of archival material, thousands of old gun laws, of every imaginable variety, are now available for reference. “America’s Original Gun Control,” – The Atlantic. Whether such information comes in time for both cases is probably an issue too.

Agency Powers to Safeguard Public Health, Safety, and the Environment

Over several years, SCOTUS has 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.

• Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, were both brought by commercial fishing enterprises challenging a federal regulation requiring fishing boat operators to pay third-parties to conduct federally required compliance checks. They argue 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. In that 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. Such as taking decisions out of the hands of career subject matter experts and into those of judges. During oral arguments, the liberal justices stated the overturning of Chevron would turn the Supreme Court into “a policymaker by majority rule.” The justices would rule on highly technical and nuanced issues in which they have limited expertise. It would dismantle a framework in which Congress has relied upon agency expertise to fill in regulatory gaps when implementing complex initiatives. 

Some Discussion, (more at the link): The Supreme Court has sometimes declared categorically that the legislative power of Congress cannot be delegated and on other occasions has recognized more forthrightly, as Chief Justice Marshall did in 1825, that, although Congress may not delegate powers that are strictly and exclusively legislative, it may delegate powers which “[it] may rightfully exercise itself.” The categorical statement has never been literally true, the Court having upheld the delegation at issue in the very case in which the statement was made. The Court has long recognized that administration of the law requires the exercise of discretion, and that, in our increasingly complex society, replete with ever-changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. 

The real issue is where to draw the line. Chief Justice Marshall recognized that there is some difficulty in discerning the exact limits, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a court will not enter unnecessarily. Accordingly, the Court’s solution has been to reject delegation challenges in all but the most extreme cases, and to accept delegations of vast powers to the President or to administrative agencies. Can Congress Delegate Its Power? – FindLaw