Sep 25, 2023 - Health

Major abortion pill and trans care cases looming in new SCOTUS term

Illustration of the supreme court with an asterisk made of the ambulance symbol.

Illustration: Shoshana Gordon/Axios

The Supreme Court returns next week for a new term that experts think could yield landmark decisions on medication abortion and gender-affirming care.

What's happening: Should the justices decide to take up the cases this term, rulings on either issue would likely come before summer 2024, as the presidential race enters the home stretch.

  • Justices have already agreed to hear arguments in a case that could limit how much deference courts give health regulators and other federal agencies to interpret ambiguously worded laws.

Driving the news: In a case that takes up the availability of widely used abortion pill mifepristone, justices could decide whether a single court can limit abortion access in states that protect it, as well as roll back Food and Drug Administration drug approvals.

  • Earlier this month, mifepristone's manufacturer, Danco Laboratories, and the Biden Justice Department petitioned the Supreme Court to review an August appeals court decision that limited access to the pill.
  • The request gives justices an opportunity to rule on a drug used in more than half of the abortions in the U.S. that was originally approved in 2000 and has been deemed safe by leading medical associations.
  • A panel of the 5th U.S. Circuit Court of Appeals ruled in August that the FDA didn't take into account safety concerns when it made mifepristone more accessible in 2016.
  • The panel at the same time did block a lower court ruling that would have struck the FDA's approval of the drug.

Between the lines: Danco and other drug industry interests argue the rollback would destabilize the pharmaceutical and biotech space by undercutting the FDA's regulatory discretion.

The DOJ furthermore cited "serious legal errors" in the 5th Circuit's decision as justification for the high court to take the case, adding it could jeopardize women's health.

  • The Supreme Court already has weighed in once in the case, granting an order in April that kept the status quo and left mifepristone widely available while the legal challenges to the FDA's authority play out.
  • Among the questions the justices would consider if they agree to a hearing in the new term is whether anti-abortion groups that originally brought the case have legal standing and whether the FDA's loosening of access violated the Administrative Procedure Act governing regulatory changes.

Go deeper: On gender-affirming care, the court could agree to review conflicting appeals court decisions in the past year over state bans that critics say violate the 14th Amendment by discriminating against trans youths or restricting parents' rights.

  • Twenty-one states now have bans on hormone therapy, surgery or other forms of care for minors, though some have been halted by lower courts.
  • After courts blocked bans in five states from taking effect, a divided panel of the 6th U.S. Circuit Court of Appeals in July issued the first ruling allowing a ban to go forward when it lifted a lower court freeze on Tennessee's ban on such care for youths.
  • Later that month, another panel of judges from the 6th Circuit allowed Kentucky to continue enforcing a ban on puberty blockers and hormone treatments, saying there weren't enough differences with Tennessee's prohibitions to merit a different decision.
  • Since then, the 11th Circuit U.S. Court of Appeals reinstated Alabama's ban on puberty blockers and hormones while a district court judge blocked part of Georgia's ban on most gender-affirming care for minors.
  • And last week, the 4th U.S. Circuit Court of Appeals heard oral arguments in cases involving the coverage of gender-affirming care by North Carolina's state employee health plan and the coverage of gender-affirming surgery by West Virginia Medicaid.
  • During the proceedings, at least two judges said it's likely the case will eventually reach the U.S. Supreme Court, the Associated Press reported.

In another case closely watched by health care groups, the justices will consider how much leeway courts should give U.S. agencies to interpret federal law.

  • The case, Loper Bright Enterprises v. Raimondo, challenges the nearly 40-year-old "Chevron deference," which says courts should defer to federal agency views in disputes over ambiguous statutes.
  • The Supreme Court's Chevron ruling has long been the target of conservative groups who say it's empowered the administrative state.
  • The justices will hear a challenge to commercial fishing regulations, but the implications of the case are much broader — especially for the highly regulated health care sector.
  • Overturning Chevron could have vast implications for federal health insurance programs like Medicare and Medicaid and affect how agencies do things like pay for drugs, regulate nursing homes and respond to emerging treatments, over a dozen health care groups including the American Cancer Society and the American Academy of Pediatrics said in a brief filed to the Supreme Court on Friday.
  • The groups, while they sometimes differ with how health agencies use their authority, all agree "it is constitutionally permissible and vastly preferable for such authority to lie with a centralized agency, staffed with subject matter experts and accountable to the President, Congress, and the courts, rather than expect that Congress or the courts would be willing or able to assume such a role."
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