Why Smashing the Administrative State Is a Disaster for Reproductive Rights

The latest Supreme Court rulings are already being weaponized against gender identity. Abortion and birth control are next.

An abortion rights advocate participates in a protest outside of the U.S. Supreme Court Building on June 24, 2024, in Washington, DC.Anna Moneymaker/Getty

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It turns out the most consequential reproductive rights case before the Supreme Court this past term—arguably, the most significant since the overturn of Roe v. Wade—wasn’t the religious right’s attack on the abortion drug mifepristone, or the battle over whether the federal Emergency Medical Treatment and Labor Act requires hospitals to provide emergency abortions in states with strict bans. It was a fight over who should pay to monitor commercial fishing boats so they don’t deplete the herring population off the Atlantic coast.

Reproductive health and gender equality advocates are just beginning to digest the sweeping implications of the ruling in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, in which the court’s conservative supermajority overturned a 40-year-old cornerstone of US administrative law known as “Chevron deference.” In doing so, the justices vastly limited the power of federal agencies to issue regulations on everything from financial markets to industrial pollution to drug pricing to workplace safety. 

And abortion. And birth control. And trans equality. And pregnant workers’ rights. 

“It’s hard to overstate the significance of the Loper Bright and Relentless decision” on reproductive and gender issues and federal policy more broadly, says Shaina Goodman, director for reproductive health and rights at the National Partnership for Women and Families. “It has deep and far-reaching consequences that we will see play out over the coming years.” That’s because many of the major regulations protecting or expanding reproductive and gender rights have been the result of federal agencies interpreting statutes enacted by Congress.

Certainly, anti-abortion groups were pleased at their new power to disrupt how federal laws are made and implemented. Eric Rassbach, vice president and senior counsel at the Becket Fund for Religious Liberty, a leading law firm focusing on religious issues, called Loper Bright “a landmark ruling” for groups that oppose abortion and birth control, such as nuns who’ve been fighting the Affordable Care Act’s contraceptive mandate for a decade. He predicted that the decision “would likely be the death knell” for, among other things, new Biden administration rules interpreting the Pregnant Workers Fairness Act to include workplace accommodations for people having abortions. 

“From this day forward,” Justice Ketanji Brown Jackson wrote, “administrative agencies can be sued in perpetuity over every final decision they make…Even the most well-settled agency regulations can be placed on the chopping block.” 

Then the Supreme Court gave the foundations of American law another vigorous shake. On the last day of the term, the same coalition of far-right justices amplified the likely impact of Loper Bright by opening the door to new, broad challenges to regulations long after they take effect. In Corner Post v. Board of Governors of the Federal Reserve System, a case involving a North Dakota truck stop and debit-card swipe fees, the court granted litigants virtually unlimited time to file suit over federal rules they claim cause them harm, instead of the six-year statute of limitations that had been in place.

If the implications for reproductive rights weren’t immediately obvious, Justice Ketanji Brown Jackson made the stakes clear in a blistering dissent. She pointed to efforts by anti-abortion doctors to overturn the Food and Drug Administration’s regulation of mifepristone—a case the justices rejected in June on the narrow grounds that the doctors didn’t have standing to sue. Now, Jackson suggested, the FDA’s approval of mifepristone in 2000 would be “fair game.” “From this day forward,” she wrote, “administrative agencies can be sued in perpetuity over every final decision they make…Even the most well-settled agency regulations can be placed on the chopping block.” 

Taken together, the Loper Bright and Corner Post decisions cast a new light on the justices’ strategy this term to essentially punt the mifepristone suit and the federal-vs-state battle over EMTALA. Both of those cases centered on federal rules that are likely to be challenged under the court’s new reasoning—along with rules governing many other areas of health policy for decades to come, the think tank KFF warns.

The impact is likely to be felt particularly strongly in ideologically “combustible” issues such as reproductive health, gender rights, and climate change, predicts Georgetown Law professor Lisa Heinzerling. “These are areas where, it seems to me, [courts are] treating any protective regulation with some hostility,” she says. Long-settled federal rules on issues such as birth control and emergency contraception could make especially tempting targets for conservatives under Corner Post, legal experts say.

Some of the first effects are being felt in cases involving trans issues. Two days after the Supreme Court term ended, federal judges in Mississippi, Texas and Florida cited Loper Bright to block the Biden administration from enforcing a new rule that interpreted the Affordable Care Act to bar discrimination in health care on the basis of gender identity. “Any deference that would have been automatically given to the Biden administration has just been completely eliminated,” Sarah Parshall Perry, senior legal fellow at the Heritage Foundation, told the Washington Examiner

As my Mother Jones colleagues have written, this term’s Supreme Court rulings were the culmination of a years-long campaign by conservative groups to throttle the federal government’s regulatory power and dismantle what they like to call the “administrative state.” Overturning the Supreme Court’s 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council was central to that goal. In Chevron, the justices held that when a federal statute was ambiguous on a certain issue, administrative agencies with specific expertise, such as the FDA or the Environmental Protection Agency, had wide latitude to issue rules interpreting and implementing the law—and if those rules were reasonable, lower courts had to defer to them. The rationale was simple: Congress couldn’t possibly weigh in on every last practice of every industry to which a law might apply. So it made sense for agencies to make the rules and for judges to mostly go along.

Conservatives began to argue that courts shouldn’t have to defer to the expertise of federal agencies to decide whether a regulation should be upheld; instead, judges should be able to use their own judgment.

At first, Chevron was seen as a victory for conservatives, becoming one of the most-cited precedents in American law. But when the Obama administration began using Chevron to push through its policy agenda, they changed their tune. In law journal articles and amicus briefs, conservatives began to argue that courts shouldn’t have to defer to the expertise of federal agencies to decide whether a regulation should be upheld; instead, judges should be able to use their own judgment. In his majority opinion in Loper Bright, Chief Justice John Roberts agreed with those arguments, asserting that agencies “have no special competence” to resolve statutory ambiguities. Whereas, he said, “courts do.” 

The Corner Post case received much less attention while it was moving through the courts, perhaps because what it was proposing—basically ending the statute of limitations to challenge federal regulations—seemed so improbable. Certainly, its potential consequences for reproductive issues flew under the radar. According to the official transcript, the words “abortion,” “mifepristone,” and “gender” didn’t come up once during oral arguments this past spring.

But there were plenty of signs that anti-abortion groups were keenly interested in the outcomes of both cases. The law firm challenging the federal regulations in Corner Post happens to be the same firm representing the main Idaho lawmaker suing the Biden administration over EMTALA and emergency abortion care. In Loper Bright, a group of Christian businesses, represented by the powerhouse religious law firm Alliance Defending Freedom, filed an amicus brief that lists a string of issues that conservative groups are likely to target now that Chevron has been overturned, including Biden administration rules on Title X family planning funds, the mailing of abortion pills, pharmacy requirements for stocking contraceptives, and the patient privacy law known as HIPAA. (“Unelected federal bureaucrats frequently disrespect Americans’ most cherished liberties by imposing personal political agendas that ignore science and that bypass what Congress has authorized,” ADF senior counsel Julie Marie Blake said in an email, adding that thanks to the new SCOTUS ruling, courts are now “recognizing their duty to interpret these laws as written.”)

By contrast, with all their attention focused on the potentially blockbuster mifepristone and EMTALA cases, reproductive and LGBTQ rights organizations did not file amicus briefs in either Loper Bright or Corner Post. Now they are scrambling to figure out how to proceed. And because many of the coming battles will be happening in the super-wonky administrative law context, with courts chipping away at regulations one easily-overlooked decision at a time, repro groups could have a much harder time stirring up the level of passion among their supporters that has made the Dobbs decision one of the defining issues of the 2024 election cycle. 

That’s ironic, because Loper Bright and Corner Post are likely to intensify the ideological battles around abortion and reproductive rights. “We’re unsettling 40 years of administrative precedent in a way that is really going to politicize a lot of these issues,” warns Skye Perryman, the CEO and president of Democracy Forward, a national legal organization that focuses on democracy issues and social justice. “Under Chevron deference, you had judges that might be considered to be conservative upholding rules that came out of liberal administrations. You had judges that might be considered liberal upholding rules that came out of conservative ones. Chevron really operated right to help depoliticize a lot of these things.” 

Another irony: Those court battles are likely to be much more frequent and more heated if Joe Biden is reelected, says abortion historian Mary Ziegler, a law professor at the University of California, Davis. “Clearly Corner Post makes it a lot easier to win if you’re a conservative advocacy group, even when the statute of limitations would otherwise have expired,” she says. But with Trump officials running the administrative state, “conservatives may not be as enthused to argue that the courts rather than agencies should have primacy. There may not be as much of a need for those lawsuits if you have a Trump administration doing your work for you.”

Take, for example, the Chevron deference: Back in 1984, the case was a clear victory for the deregulation-minded Reagan administration. Overturning that precedent was part of “a strategy devised by conservatives at a time when federal agencies were mostly in the hands of Democrats,” Ziegler says.

There could well come a time when progressive lawmakers and courts could use Loper Bright to their own advantage, she adds. “It’s kind of like presidential immunity,” she says. “Obviously, if Trump is vowing to prosecute Biden, maybe that looks different to you. [Regulations and opinions] that are written with an eye to the world as it is now, may read differently if the White House changes hands.” 

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