This post launches a new Digital Symposium: Supreme Court Preview: Key Health Law Issues for the 2024 Term, guest edited by Cary Franklin, Professor of Law, McDonald/Wright Chair of Law, and Faculty Director of the Center on Reproductive Health, Law, and Policy and the Williams Institute at UCLA Law; and Lindsay F. Wiley, Professor of Law and Faculty Director of the Health Law and Policy Program at UCLA Law.
by Cary Franklin and Lindsay F. Wiley
The Supreme Court’s decisions have important and long-lasting effects on health care access, the public’s health, health equity, and the power of communities to create healthier living and working conditions. In the days leading up to the Court’s 2024 term, this symposium explores how the Court is dramatically restructuring individual rights and governmental and private institutional powers and responsibilities related to health.
The health impact of cases from the 2023 Term may be less direct than that of the Court’s precedent-shattering holdings in 2022, which ended constitutional protection for reproductive freedom and increased constitutional protection for gun rights. But the cases the Court decided in 2023, and the cases it will decide in its upcoming term, have significant, if sometimes subtler and more complicated, ramifications for public health. Conveying the stakes of these decisions for the public and for health law — and for our colleagues in the health care, public health, and life sciences sectors — will be crucially important and challenging.
Among the themes health law scholars and advocates should be watching closely in the coming term is the Court’s devaluation of scientific evidence and expertise across a range of doctrinal issues. This move unites many of the Court’s recent decisions and connects them to the broader anti-science, anti-expertise thrust of an increasingly dominant strain in our politics. This strain may be even more evident in the Court’s jurisprudence in the upcoming term. The wide-ranging effects of this shift cut across public health, health care, environmental protection, election law, education law, and other areas. What we’re seeing is an attack on the knowledge necessary for good government.
One way the Court is undermining scientific knowledge and expertise is by increasing its own power at the expense of the elected branches and the scientists and other experts who staff the nation’s administrative agencies. Doctrinal shifts increasing the Court’s power in this manner are evident in numerous areas that include reproductive rights law, Second Amendment law, and administrative law. The Court’s ideological and policy preferences on these issues are not broadly popular. This term, the Court is moving very clearly toward adopting new legal approaches that allow the Justices themselves to control what happens in these areas.
The commentaries featured in this symposium, “Supreme Court Preview: Health Law and the 2024 Term” parse the effects of last year’s decisions, prognosticate the potential impact of the cases announced for this year’s docket, and scan the horizon for longer-range possibilities.
Nathan Cortez surveys the implications of the Court’s 2023 decision overturning Chevron for the Environmental Protection Agency, Food and Drug Administration, and Department of Health and Human Services. Cortez argues that “ideologically-bent courts” are likely to use Loper Bright Enterprises v. Raimondo to undermine agency expertise by making policy and scientific assessments de novo.
Michael Ulrich argues that this term’s ghost gun case, Garland v. VanDerStok, may reveal that the Court’s attack on the administrative state is as great a threat to firearm regulation as its Second Amendment jurisprudence. Ulrich critiques the Court’s decisions in gun cases in 2022 and 2023 and previews what’s at stake this term. He notes that on both fronts — the Second Amendment and the erosion of administrative authority — the Court has rejected judicial reliance on expert-driven, evidence-based assessments of the impact that gun violence has on the public’s health and of the likely effectiveness of gun regulations.
Liz Sepper addresses the Court’s ongoing expansion of the right of medical providers to refuse to provide patients with much-needed, and even potentially life-saving, health care for religious reasons. In recent years, the Court has issued a number of holdings that explicitly expanded the scope of religious exceptions to generally applicable laws. Sepper shows how last term’s abortion cases, which did not directly implicate religious refusals to provide health care, nonetheless furthered this trend in aggressive and disturbing ways.
Rachel Rebouché focuses on the two abortion cases the Court heard last term: Moyle v. United States and FDA v. Alliance for Hippocratic Medicine. The Court did not issue definitive holdings in either case, but Rebouché predicts the issues in these cases will return to the Court soon. She explains how these cases pit science and agency expertise against anti-abortion activists and activist judges seeking to remake abortion law after Dobbs.
Zack Buck digs into Advocate Christ Medical v. Becerra, a case on disproportionate share hospital payments under Medicare, which the Court has taken up this term. Buck describes how the case could impact “hundreds of hospitals’ bottom lines,” and suggests it could also give us insight into the Court’s approach to statutory interpretation after Loper Bright.
Craig Konnoth examines an upcoming case in which the Court will consider whether Tennessee’s ban on gender-affirming care for transgender minors violates constitutional sex discrimination law. As Konnoth explains, Tennessee permits minors who are not seeking treatment for gender dysphoria to access medical procedures and medications that are otherwise banned for gender-affirming care. He argues that permitting minors to access medical procedures and treatments that allow them to better conform to the sex they were labeled at birth but banning transgender minors from accessing these same treatments to affirm their gender identities clearly discriminates on the basis of sex.
The posts in this symposium address a wide range of cases and issues. On the surface, these cases and issues may not appear to be related to one another in obvious ways. But one of the benefits of bringing together a collection of pieces is that it reveals continuities that may not be immediately apparent in the media’s coverage of these cases. Running through the pieces in this symposium is a deep strain of concern — about a Court that seems eager to disregard or override scientific evidence and expertise and to impose on the nation its own politically-inflected and often unpopular judgments about a wide range of hot-button issues. There’s a lot of talk these days about the dangers posed by an increasingly “imperial” Court. It would be difficult to find an area where these dangers are more acute than in the area of health law, where lives are literally at stake.
