By early July, the Supreme Court is set to hand down some of its most controversial decisions of the 2023-2024 term. The court’s 6-3 conservative majority has already Roe v. Wadeit has significantly restricted affirmative action, expanded gun rights, and hindered the government’s ability to address threats like COVID-19, climate change, and LGBTQ+ discrimination.
A number of cases this term could dramatically change the way health care policy is conducted. Notable health care cases concern abortion, gun violence, and the powers of the Health and Safety Agency. Here is an overview of possible decisions and their impact.
Abortion: Emergency medical procedures and mifepristone
It’s been two years since the Supreme Court overturned the right to abortion before conception. Roe v. WadeTwenty-one states have moved to ban or severely restrict reproductive rights, and some states allow abortion only in very specific circumstances, such as when the pregnant woman’s life is at grave risk. Abortion opponents have also attacked mifepristone, a safe and effective abortion drug used in about two-thirds of abortions in the United States.
The two main cases awaiting the Supreme Court’s decision centre around two issues: abortion as an emergency medical procedure and the abortion drug mifepristone.
in Idaho v. United StatesThe Department of Justice (DOJ) argues that Idaho’s anti-abortion law, which prohibits abortions unless necessary to “save the life of a pregnant woman,” violates the federal Emergency Medical Treatment and Labor Act (EMTALA). The act requires hospitals that receive federal funds to treat all patients experiencing a medical emergency. In 2022, HHS clarified that emergency stabilization care under EMTALA includes abortion under certain circumstances. During oral arguments in the case, DOJ lawyers emphasized that delays in emergency abortion care pose risks of sepsis, hysterectomy, and pre-eclampsia, which can lead to kidney failure and other serious risks. Yet Idaho argued that only the state has the authority to determine the appropriate standard of care, as if it were a political issue rather than a medical one.
Preventing pregnant individuals from obtaining abortions in medical emergencies puts their lives at risk. It also puts health care providers at legal and ethical risk, forcing them to choose between medical standards and coercive state laws. Health care providers are asking patients to wait in parking lots or go home until their condition becomes severe enough to qualify for a state abortion exemption, highlighting the danger of restrictive state laws. It is important to emphasize that abortion is medical care.
In the second abortion case, FDA v. Association of Hippocratic Medicine (AHM)Plaintiff AHM, a group of anti-abortion medical professionals, argues that the FDA acted unlawfully when it first approved mifepristone in 2000 and when it more recently expanded access to the drug (for example, by allowing prescriptions up to 10 weeks of pregnancy instead of 7 weeks in 2016 and by allowing dispensing at certified pharmacies in 2023). AHM further argues that the Comstock Act of 1873 prohibits mailings “with the intent to abortion.” However, the Department of Justice has interpreted this old law as not applying to the lawful mailing of approved abortion pills.
During oral arguments, several justices questioned whether AHM even had “standing” to sue (AHM would have to prove harm or possible harm). AHM claims harm because its members were forced to care for patients who experienced complications from mifepristone, and in some cases were forced to have abortions. However, this does not take into account the fact that mifepristone is one of the safest prescription drugs available over the counter, and such lawsuits are rare.
A ruling in favor of AHM and its right to sue would have far-reaching implications. Not only would it deny individuals access to a safe and effective abortion drug, it would open the door to a flood of challenges to FDA’s regulation of other products. This would hinder FDA’s ability to make scientific judgments that balance safety and access to medicines in the interest of public health. It would also impact pharmaceutical companies that rely on FDA to approve and regulate their products.
Firearm Safety: Domestic Violence
In 2022, the Supreme Court overturned a New York state law that restricted gun carry permits outside the home. In doing so, it proclaimed a new standard that makes it much harder to enact common-sense firearm safety laws, essentially requiring that modern laws be sufficiently similar to the laws in 1791, when the Second Amendment was enacted, or in 1868, when they were applied at the state level. This term, the Supreme Court will rule on the constitutionality of federal gun control laws designed to protect people suffering from domestic violence. Notably, this law was not illegal in most places before the women’s rights movement of the 1970s. In the 18th century, women were considered the property of their husbands. That cannot be the legal standard used by the Supreme Court today.
United States v. Rahimi The case involves 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 violating the Second Amendment, the right to bear arms. The Fifth Circuit Court of Appeals agreed, finding that there were no sufficiently similar laws from the late 1700s or 1800s. The government countered that historical regulations have long included laws that deny firearm ownership to anyone other than “responsible, law-abiding citizens.” In making its decision, the court will likely carefully consider how specific modern regulations should be compared to historical analogues.
If the Supreme Court finds that the relationship between the challenged federal law and its purported historic analogues is too general, it could strike down the law and eliminate important protections for victims of violence. Over the past 25 years, the federal law has blocked more than 77,000 gun purchases by people subject to domestic violence protective orders. Moreover, depending on the Court’s analysis, it could call into question several other laws enacted to protect vulnerable people from gun violence.
Authority to protect public health, safety, and the environment
Over the past few years, the Supreme Court has significantly undermined the ability of federal agencies to effectively enforce laws designed to protect public health and safety. There are currently two major cases pending whose decisions could lead to dramatic steps toward further deregulation.
In these cases, Roper Bright Enterprises v. Raimondo and Relentless Corp. v. Department of CommerceThe case was brought by commercial fishing companies challenging federal regulations that require fishing vessel operators to make payments to third parties and conduct federally mandated compliance checks. They argue that the regulations run counter to the Fisheries Protection Act. Lower courts had upheld the regulations based on 40-year-old precedent. Chevron v. Natural Resources Defense Council (1984) allows government agencies to interpret their legal authority reasonably when issuing regulations. However, fishing corporations backed by special interests Chevron The bill is unconstitutional because it does not allow the judiciary to resolve ambiguities in statutes and gives excessive power to federal agencies.
Subverted or weakened Chevron Shifting decision-making power from subject matter experts to judges would have major implications for health policy. During oral arguments, the liberal justices wrote: Chevron The bill would turn the Supreme Court into a “majority policy maker” that would rule on highly technical and sensitive issues where the justices have little expertise. It would dismantle a framework in which Congress has relied on agency expertise to fill regulatory loopholes when implementing complex policies. The resulting regulatory loopholes would make food, drugs, medical devices, water, air, health care, and workplaces more vulnerable to health and safety risks. And from a jurisprudence perspective, overturning a 40-year-old decision that has been reaffirmed countless times would signal the Supreme Court’s willingness to ignore regulations. decidedThe time-honoured legal principle of respecting existing precedents.
Big stakes await
The Supreme Court’s decision in the coming weeks could bring seismic changes to the medical and public health legal landscape, particularly with regard to the health of our most vulnerable citizens, including those needing emergency abortion care, those experiencing domestic violence, and those who rely on basic protections provided by federal regulators.
Lawrence O. Gostin, JD, LLD, He is a top-ranking professor at Georgetown University and director of the O’Neill Institute for National and Global Health Law in Washington, D.C. He is also director of the World Health Organization Collaborating Center for National and Global Health Law. Global Health Security: A Blueprint for the Future. Sarah Wetter, JD, MPH, He is a senior research scientist at the O’Neill Institute.
