The Host Julie Rovner KFF Health News @jrovner Read Julie's stories. Julie Rovner is chief Washington correspondent and host of KFF Health News weekly health policy news podcast, What the Health? A noted expert on health policy issues, Julie is the author of the critically praised reference book Health Care Politics and Policy A to Z, now in its third edition.

It was a busy year for health-related cases at the Supreme Court. Among other issues, the justices grappled with two abortion cases, a separate case touching on the opioid epidemic, and a case challenging whether localities can bar homeless people from sleeping in public spaces. Also, the court struck down a decades-old precedent that could dramatically change how the federal government oversees health care and other types of policy.

In this special episode of What the Health?, Sarah Somers, legal director of the National Health Law Program, joins KFF Health News chief Washington correspondent, Julie Rovner, to discuss how the justices disposed of the terms health-related cases and what those decisions could mean going forward.

A Summary of the Cases

On the functioning of government:

Loper Bright Enterprises v. Raimondo, challenging the Chevron doctrine that required courts to defer in most cases to the expertise of federal agencies in interpreting laws passed by Congress.

Corner Post Inc. v. Board of Governors of the Federal Reserve System, challenging the statute of limitations for bringing a case against a federal agencys actions.

On abortion:

Food and Drug Administration v. Alliance for Hippocratic Medicine, challenging the FDAs approval of the abortion pill mifepristone.

Moyle v. United States and Idaho v. United States, about whether the federal Emergency Medical Treatment and Active Labor Act requirement that hospitals participating in Medicare provide the care needed to stabilize a patients condition overrides Idahos near-complete abortion ban when a pregnant patient experiences a medical emergency.

On other health issues:

Harrington v. Purdue Pharma, about whether federal bankruptcy law can shield an entity from future claims without the consent of all claimants.

City of Grants Pass v. Johnson, about whether banning sleeping in public subjects those with no other place to sleep to cruel and unusual punishment under the U.S. Constitution. Email Sign-Up

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Previous What the Health? coverage of these cases: SCOTUS Ruling Strips Power From Federal Health Agencies Jun 28, 2024 SCOTUS Rejects Abortion Pill Challenge For Now Jun 13, 2024 Waiting for SCOTUS May 30, 2024 Abortion Again At the Supreme Court Apr 24, 2024 The Supreme Court and the Abortion Pill Mar 28, 2024 Health Enters the Presidential Race Jan 25, 2024 The Supreme Court vs. the Bureaucracy Jan 18, 2024

click to open the transcript Transcript: SCOTUS Term Wraps With a Bang KFF Health News What the Health?
Episode Title: SCOTUS Term Wraps With a Bang
Episode Number: 354
Published: July 3, 2024

[Editors note: This transcript was generated using both transcription software and a humans light touch. It has been edited for style and clarity.] 

Mila Atmos: The future of America is in your hands. This is not a movie trailer and its not a political ad, but it is a call to action. Im Mila Atmos and Im passionate about unlocking the power of everyday citizens. On our podcast Future Hindsight, we take big ideas about civic life and democracy and turn them into action items for you and me. Every Thursday we talk to bold activists and civic innovators to help you understand your power and your power to change the status quo. Find us or wherever you listen to podcasts.

Julie Rovner: Hello and welcome back to What the Health? Im Julie Rovner, chief Washington correspondent for KFF Health News, and Im joined by some of the best and smartest health reporters in Washington. Were taping this week on Tuesday, July 2, at 11 a.m. As always, news happens fast and things might have changed by the time you hear this, so here we go.

If youre a regular listener, youll remember that the week of Memorial Day we did a roundup of the health policy-related Supreme Court cases whose decisions we expected to come in June. Well, now its the week of July Fourth, and were going to follow up and talk about how those cases got resolved. We are pleased to welcome back to the podcast Sarah Somers, legal director of the National Health Law Program. Last winter, Sarah helped us understand what was at stake in perhaps the most significant health-related case of the term. Sarah, welcome back to What the Health?

Sarah Somers: Hello, Julie. Thank you so much for having me.

Rovner: So lets talk about the big kahuna first, or should I say the big herring? Tell us about the courts decision in Loper Bright Enterprises v. Raimondo. Technically, this was a case about herring fishing and who should pay for government observers on fishing boats. But the reverberations from this will be felt all over the federal government, right?

Somers: Absolutely. This is yet another example of the kind of case that can sneak up out of nowhere for those of us who are interested in health policy, because it doesnt have anything to do with health policy or our usual subjects. What this had to do with is a Department of Commerce regulation that required fishing boats to pay for observers to the extent to which they were fishing. And so this was something that normally would not concern us, but the parties introduced a much broader question, which is whether they should overturn a case called Chevron, which deals with the extent to which courts should defer to agency interpretations. Chevron was decided in 1984, and what its meant is that if a statute is clear, then a court needs to follow the statute. But if its ambiguous, then the court needs to defer to a reasonable interpretation by the administrative agency.

And so this is a particularly troubling case because the regulation at issue had been withdrawn and the fishermen involved in the case had been reimbursed for any fees that theyd paid. So this wasnt really a live issue. And it just shows the extent to which the court was really eager to get to this question. Conservative lawyers and scholars and judges have had Chevron in their sights for a good while and have been critical of it saying that it gives agencies too much power. Now, those of us who work in health policy think it actually gives the agencies an appropriate amount of power. The agencies are the ones who have the expertise, who have the time, and who have the official function of interpreting what a statute means. In the case, the work that we do, Medicaid is the statute that were most interested in. Medicaid, a notoriously hypertechnical and confusing statute, and just one of hundreds that agencies are interpreting all over the federal government.

What administrative agencies do touches on the lives of every American in so many ways: environmental, transportation, health, I could go on and on, but its all-encompassing. Yeah, the war on Chevron has finally culmnated in this final battle, and now the court has ruled that the court doesnt have to give particular deferences to agencies anymore. They can take a fresh look at everything and say, I dont care what you say, accountable experts, with all of your time and your know-how, were going to take a look at this and see if we agree or not. And if we dont, then its a whole new day.

Rovner: So what kind of health issues are we most concerned about here that we would now not necessarily be giving deference to the administrative agency?

Somers: I was thinking about this as falling into two categories. There are sort of the high-profile, more controversial, or ideological issues. Issues like bans on discrimination and treatment for LGBTQ people; protections for discrimination for people with disabilities; regulations that ensure access to services for people with limited English proficiency; anything to do with abortion; a lot of things to do with family planning. These are the kind of things that draw controversy and are always vulnerable to challenge. But then theres a whole nother world of things that people dont really think about, which is the complexities of how rates are determined for hospitals; how rates are determined for managed-care plans; how patient billing is conducted; all the myriad regulations that govern how hospitals function. And these are the kind of things that just grind along and keep the wheels of the health care industry turning. And what this does is it throws a lot of sand in those gears and sometimes can bring things to a halt.

And so it can influence these high-profile issues where people might be more vulnerable to discrimination, not have access to services in their language. But also the kind of invisible things that you dont see but you just know as a patient, as a provider that the works are being gummed up and its not working efficiently and quickly the way its supposed to.

Rovner: Ive seen a few people write that theyre worried about agencies getting more timid in light of this. That they might be less inclined to regulate on things that they wouldnt normally regulate about.

Somers: I think thats absolutely true. And I already think the agencies are quite cautious because theyre always vulnerable to challenge under the Administrative Procedure Act. But this is just going to turn up the heat several notches and keep them out of areas that they really are very much needed, where their expertise and their experience is needed. I think thats absolutely true. If you want to talk about the other decision that goes hand in hand with this one then

Rovner: Well get there in a second, but before that, Ive also seen commentary about the concern that this will give an advantage to businesses, or basically entities that have enough money to continue to go to court. Because those are the ones wholl be able to file and complain about regulations. Whereas people who might be affected by other regulations will not have as much access to the courts.

Somers: Absolutely. This is a deep-pocket industry, and its just going to open the floodgates to more litigation for the well-resourced and connected among us these big agencies, big corporations. Its true that from the beneficiary side, or the patient side, you also may want to argue with an interpretation of a regulation, but its much less likely that you will have the resources and the time and really the knowledge to be able to do it. So the deck is really stacked in favor of industry after this.

Rovner: So one of the things that was in this decision or that [Chief] Justice [John] Roberts wrote was that this did not open the floodgates to go back and look at previous regulations. You couldnt go backwards. I know that was a big concern. But there was another case that kind of said, Well, maybe you can tell us about that other case.

Somers: Yes. And let me just comment for a second on what Justice Roberts said, which is that, oh, this doesnt mean that cases decided under Chevron arent good law anymore. In order to disrupt that youd need some kind of special factors or special consideration. As Justice [Elena] Kagan pointed out, we dont know what that would look like and anybody can come up with a special reason, an important reason it should be overturned. And it also, more importantly, forget the ones that are settled, the ones that have never been challenged because industry mightve thought, well, its not worth it. Well, now it is worth it, right? And that bleeds to the next case, which is about Corner Post v. Board of Governors of [the] Federal Reserve [System]. And I will say, speaking for myself, this one snuck up on me a little bit. Weve been watching Loper Bright for a long time. Our organization filed an amicus brief in the case.

The Corner Post kind of snuck up. And its about, once again something very far removed from health policy, about debit card fees that get passed on to merchants, and they hate it. And so two big industry groups came after this regulation, saying even though the statute of limitations had passed, were challenging it. Normally its six years after a regulation is final you have to challenge it. But they said thats not fair, we didnt even exist. And so now that were harmed by it, we should be able to challenge it. And sure enough, six out of the three justices said, Yeah, thats right. And so what that means is everybody can look around and take a fresh look at things that have been on the books seven years, 10 years, 20 years, who knows? Including as Justice [Ketanji Brown] Jackson pointed out, cases about drug approval like approving mifepristone, the drug thats used in abortions. So it all just weaves together into a web that is going to tangle up health advocates, patients, providers, and its really scary.

Rovner: Well, lets move on to the abortion cases. There were two this term. One of the two was challenging the FDAs approval of the abortion pill mifepristone. The other was asking whether a federal law that requires hospitals to provide emergency stabilizing care for pregnant women and others including potentially abortion overrides Idahos near-total ban on the procedure. In both cases, the court avoided reaching the merit. So we dont really know what the justices think or what they mightve ruled, but lets take them one at a time. Lets talk about what happened with the abortion pill case. That was the one brought by a group of conservative health professionals in Texas.

Somers: Right. These providers, doctors, and dentists said that it violated their religious beliefs to have to have anything to do with abortion. And even though they were not going to ever prescribe it, they argued, What if somehow we had to be burdened by treating somebody who had taken this pill? Well, they didnt actually have any evidence that that had happened. And so what the court said was, you actually dont have a stake in this other than a political one. And were not here to get into political questions like that. Thats not what the courts are for. You have to have whats called standing, meaning, whats your stake in this? How are you going to be harmed? Which is absolutely true and kind of a mark in contrast to Loper Bright, where really was the standing of these groups that were suing. But anyway, what goes on here in this case is that the court said you dont have standing, but that doesnt mean nobody could have standing. Who knows?

And so, sure enough, the states are waiting in the wings to bring it up themselves and argue anew that theyre the ones who are being harmed by it. So its an undead kind of issue, and its almost certain to come back and haunt us.

Rovner: You already mentioned that drugmakers in general have been kind of freaked out by the idea of judges making scientific decisions that overrule the FDA. That could still happen, right?

Somers: Absolutely. And the FDA is barraged by lawsuits. They have so many fronts on which already they have to defend themselves. And in addition to agencies being timid, there long have been concerns about indstry capture in different parts of the agency. And so there already are so many areas on which theyre vulnerable in trying to regulate drugs. This is just one new blow.

Rovner: So the other case, as I said, pits Idahos abortion ban against the Federal Emergency Medical Treatment and Active Labor Act, EMTALA. Remind us again what EMTALA is and how it could relate to abortion.

Somers: What EMTALA is is a very important federal law that says that hospitals have to provide necessary stabling treatment to people who arrive in an emergency medical condition. And this means not just treatment to save somebodys life, but also to prevent any kind of serious impairment to bodily functions or great pain or serious dysfunction or other types of jeopardy. So what that meant is EMTALA is requiring hospitals in every state to provide certain kinds of treatment that are banned by Idahos abortion ban. For example, Idahos abortion ban says you cant provide any kind of abortion care unless someone is at the verge of death. And so there are a lot of situations and theyve already been happening in Idaho, while this law has been in effect where you might have devastation to your reproductive organs, you might be in horrible pain. The pregnancy isnt viable and youre suffering because of this law that is conflicting with EMTALA.

And so the argument is: Federal law is superior to state law, and federal law has to rule if theres a conflict with state law. And so in this case, the district court in Idaho said, Yeah, this violates EMTALA. And the court ended up taking it away from the 9th Circuit Court of Appeals, the Supreme Court did, and lifting the stay. And now what that meant was that the law was in effect, pregnant people were suffering horribly, having to be airlifted out of the state. And what does the court do at the end of the day but come back and say, Yeah, we shouldnt have done that. Were going to let this go back and theyre going to figure this out more fully. And the stay is going to stay in effect. Thats all fine and good in Idaho, for now. But then you already have the 5th Circuit, which has similar laws that are in effect. And so those people down there and the doctors who are trying to treat them are still in limbo.

And thats what Justice Jackson said in her dissent, which is like youre just leaving all these people in the lurch and doctors dont know what to do. Theyre scared of getting prosecuted, and so you should have just decided this instead of saving it for another day. And the majority kind of gave a roadmap to the court of appeals like, heres how you can show that this actually doesnt conflict with EMTALA.

Rovner: Which, I mean, the general rule is that federal laws are supreme to conflicting state laws, right? Thats a kind of

Somers: Exactly. Federal law preempts state law, and it shouldnt be a hard question. Its the kind of thing that 10 years ago, regardless of Dobbs [v. Jackson Womens Health Organization] would not have been a closed question.

Rovner: And technically the court just kind of said, Oops, we shouldnt have taken this case, or at least we shouldnt have taken it now. I read that as being they could not come to an agreement that they were likely, like, split 3-3-3. Is that your reading, too?

Somers: Thats the speculation. We never really know what goes on behind those closed doors. But it did seem like a real punt and a throwing up of the hands like, well, we dont know what to do. So were just going to call this whole thing off. It was interesting too, to see Justice Jackson along with Justice [Clarence] Thomas and [Samuel] Alito saying, We should decide this. But they wanted to decide it very differently. They wanted to just call the question once and for all, but thats not what happened.

Rovner: In both of these abortion cases, if Donald Trump is returned to office, his administration could likely just do itself what the plaintiffs are seeking here, right?

Somers: Yeah. A federal law could be passed if Congress was all Republican and Trump was president. There are all kinds of things that they could do through this. They could try to amend EMTALA. Who knows the mischief they could get into, the policymakers?

Rovner: But even if Congress remains, or at least one house of Congress remains in Democratic hands, one presumes that the administration would be pushed to both alter its interpretation of EMTALA and perhaps revoke the approval of mifepristone. Those are both theoretical things that the administration could do, right?

Somers: Absolutely. Theres executive action that could endanger access to abortion. Of course legislative action. And then there are these legal issues looming in the courts that could just come back again.

Rovner: So none of these cases are over. The court in the past few weeks also ruled in a couple of cases I call health care-adjacent. In one, the justices overturned a bankruptcy settlement reached between state governments and families of people who died of opioid overdoses, and Purdue Pharma, the company that made OxyContin and lied about how addictive it was. What happened in this case? What was the Supreme Court doing in a bankruptcy case?

Somers: Yes, questions were raised about the settlement. This is a huge settlement, billions of dollars on behalf of all the people who died and suffered from addiction because of the drugs that were being prescribed at a time when people werent aware of how addictive they were. The majority said that the settlement was not adequate to protect debtors or even the creditors and other victims. And all this work had gone into, all this time to try to come up with the settlement, but the majority was saying, this just gets the defendants too much off the hook. They still have too much of themselves protected from bankruptcy and from debtors and from creditors.

Rovner: One of the terms of the settlement was that it would basically eliminate any future claims against the Sackler family, the people who own Purdue Pharma.

Somers: Exactly. It really arguably let them off the hook. But at the same time, the dissent in this case said, Look, this has been so hard-fought. Its been so difficult to get everybody on the same page. Theres so much money at stake. And some of these people are in really dire straits and they need the money now. So it was a real trade-off between are you really letting the bad actors off the hook, and what do you take today so that you can get the most relief for people as quickly as possible? Definitely not something as a health advocate I thought Id have to think about bankruptcy, but think about it I did.

Rovner: And it was not decided ideologically.

Somers: Not at all.

Rovner: It was a very odd breakdown of justices with liberals and conservatives on both sides.

Somers: Exactly. And you can see the liberal and conservative arguments on both. You know what I mean?

Rovner: Lets put it this way, I was glad I wasnt being asked to decide that case.

Somers: 100%, oh my gosh, yes.

Rovner: Finally, the court ruled in a case out of Grants Pass, Oregon, that cities can enforce bans against sleeping in public even if the sleepers have no homes and no other access to shelter. This is also kind of health care-adjacent but could have repercussions, right?

Somers: Yeah, its health care-adjacent in two senses. One is the arguments that the local governments were making, which is that having people camping in public places is a public health problem. Theres a lot of attendant problems that the local governments say they have to deal with that affect the health of the community. But its also an important health issue from the perspective of the people who are unhoused, who are forced to sleep in their cars or in public, because housing is one of the primary drivers of health. And we know theres a horrible housing crisis in this country. Its not just people who have limited income who cant find housing. People at higher and higher income levels are struggling to find housing now. And so it just seemed like the ultimate cruelty to say to people, yes, e know you dont have housing. We know its impossibly unaffordable. We know theres a shortage. And the same time, too bad for you.

The underpinning of this decision is for years they had said its a cruel and unusual punishment under the Eighth Amendment to have criminal penalties against people because of their status. Like you cant have criminal penalties for being an addict. You cant have criminal penalties for someone being homeless. But what they split this hair and said, well, its not for being homeless its because theyre camping. And Justice [Sonia] Sotomayor in her dissent sort of said, Oh, come on. Thats really a distinction without a difference. And its the real concern on the part of Justice [Neil] Gorsuch writing for the majority was for the local governments and how hard this was on them and how difficult. And OK, but its really hard on the people who are going to be forced to stay awake or go to jail.

Rovner: And its not like a lot of these people can just move on. Many of them have jobs in the community. They just dont pay enough for them to be able to afford housing.

Somers: They have jobs and they have families and their kids can be in school. Theres all kinds of reasons they want to stay there. And there was also discussion of, well, there really is shelter space but people dont want to go because they dont want to be forced to go to religious services, because they dont want to be in a sober house. Well, I dont know. That was subject to dispute in the record. But also theres other reasons of safety and concern not going to shelters. And something that looks available on paper may not actually be available. So, its very cruel.

Rovner: To wrap up, which of these cases do you think is going to have the most lasting significance when it comes to health care?

Somers: Thats a really good question. Right now, because of the potential chaos it can unleash, I would say sort of the one-two punch of Loper Bright and Corner Post. It seems like that could be a real shock to the system and cause a real upheaval in administrative law. Sometimes these things dont shake out as badly as we think they do. It may be that most judges who are faced with these cases that arent ideological may be like, You know what? I do want to defer to the agency because I dont know anything about the Two-Midnight Rule in Medicare. I dont know anything about actuarial soundness and Medicaid managed care, so why dont I let the agency do that? But at least in the short term its going to be pretty disruptive.

Rovner: Yeah. And to be clear, the ruling didnt say they cant defer to the agency. The ruling just said they dont have to defer to the agency.

Somers: Exactly. And Justice Roberts in his majority opinion cited a case called Skidmore [doctrine], which is a level of deference to the agency thats like a step below Chevron [doctrine]. And it just says you need to give it respectful deference based on how reasonable it is. And sometimes in practice, Chevron and Skidmore may not look that different. And so I remain hopeful that courts will still show respectful deference to the civil servants who really know whats going on.

Rovner: We shall keep an eye on it. Sarah Somers, thank you so much for this Supreme Court wrap-up.

Somers: Sure. Im happy to do it.

Rovner: So, OK, that is our show for this holiday week. As always, if you enjoy the podcast, you can subscribe wherever you get your podcasts. Wed appreciate it if you left us a review; that helps other people find us, too. Special thanks as always to our technical guru, Francis Ying, and our editor, Emmarie Huetteman. As always, you can email us your comments or questions. We’re at [email protected], or you can still find me at X, @jrovner. We will be back in your feed next week. Have a lovely holiday. And until then, be healthy. Credits Francis Ying Audio producer Emmarie Huetteman Editor

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