of court decisions on health policies at the a colorado. this is about 15 minutes. >> i don't think it's an overstatement to say the role ofthe courts has never been greater and health is the topic we are going to explore todmy recollection is the

adjudicated differences and have been involved but when the affordable care act passed the fundamental challenge to the law was going to be the supreme courts and the largest policy change that we've made in deca was uncertain so a decade later it s they've grown a further the director for the society at the georgia stave a about to move to the school of public. michelle goodwin is and global health policy at the georgetown start with something that may fly a little below

the radar given how much people happens in the court that is what happensand administrative law. a topic that may mundane but is quite consequential. so i'm going to start with aaron erin set the stage about what that means and" at stake right now. >> when we think about theip of the three b branches of government, the court being one, the administrative presidential including hhs cdc and other agencies and t the congress and what is the ability ofnd-guess deferred to check the actions branc agencies. there is a challen to the long-held chevron doctrine that name from the 1980s that that when congress creates a statute and delegates authority executive branch agency

and it doesn't specify details but to fill in the gaps and regulate and imple the law the court should defer to erpretations of the statutes that they are the experts in created to administer so that was the con of the land for decades now. has expressed hostility to the concept and to the state overall.e have before the court t cases squarely testing the question of whether the doctrine shou replaced with something essentially that would let the a court decide for scope of the agency authorities are and in a way that i think is sort of definite among those that study administrative law and the reason it would create a concern in the hea there's so many agency rm consequential and that are done by the agency t overturned that is largely

expected to be done or cut back considerably, what that means is every agency rule think reimbursement over medicare and decisions about the safety and efficacy of the new drug or the new device, these decisions that are made by exper long-standing regulatory frameworks that they've come up and who may have reason to challenge themhat is the proper interpretation and frankly the agenur jshou a because they are the ones delegatedo i think that is the main concern is the expertise of the agency andend of the agencies and authorities up for grabs and subject to litigation if it is going to go. >> i hope that we can go a of that because of course the chevron doctrine didn't arise out of the health issues ob go a little deeper and if we could on sort of what the implicatio world without chevron. >> if we think about this how we gistration it's not

something the framers founders it's not something that the pilgrims brought over so t it come out of? it comes out of a crafty thoughtful journalist rightding time on the south side of chicago a century ago looking meatpacking plants and what are you finding andpa in the plants is so horrific, sofi going in, it's red meat, it's it's moldy it'sthe book the jungle comes out of that.what americans are eating. who's goingo stuff. it's writing about the infections into the meatpacking workers are living under and to we are still kind of in that space.n dobegin to further conversation for anot panel but what it looks like in the united states even today. this what brings us the food and druginistration.

and administration to give some it is people are eating and what they were drinking andn it's the drugs people are using. are the a responsibility on the part of governmentse t that these industries put things in the marketplace that won't kill people. >> and i think it is part of a broad phenomenon of undermining of expertise because theses, the benefit of letting congresough exactly which drugs are safe and effective it is giving an agenc scientific expertise for undermining the administrativeagency is to involve the courts inin second-guessingse determinations. just ann opinion issuedhis week i think sometimes the supreme court confuses me. stocks, we heard during the conference about gun health issue. there you had of alcohol determining that it would fit within the scope oftute and was prohibited as machine guns. then you have nine unelected the

justices of the supreme court longhand some of them decide theyey and in each of the decisions they are parsing. lot of pictures in opinion that in his expert machine gun under federal law so we are just eing second-guessing of medical expertise scientificexrtise, professionalism within: >> you mentioned the expertise. what i f the sectors are very nervous about this as well, not just on expertise but on certainty and timing. ing wondered if any of you could comment on the this one of the role ofrts inserting themselves and how that would affect the processes by which decisions are made. >> it is largely believed that if that that would introduce a lot more public and the reason is that the long process rulemaking goes mhrn if the agencies followed the procedures n

because of the deference any sort of permissib construction of the authority would stand. opens up because of the second-guessing, the opportunity if you don't it, if somehow your industry is penalized in some way or you have to object to it, all of th agency rules past ones as well are up for grabs and that means they can be challenged. you can ask the justices do you agree that this is the and reading of the statute, and that means the t under and we operate the health system or the administration, all of those eyrules and decisions they make now up for grabs and can be litigated over and over again. these are where there's been significant difference these are deeply vested individuals that are hired into theseat agencies. it's true that sometimes there people coming from industry w these agencies but said, the bulk

of thepl thahat work in the ag lifetime are individuals that work within these agencies and learned taught their eyes and cross the teams and comind at this point is that you're making about the important to connect to the time that we are in it's not as ix( we've gone through a period that we said it's how this is made but for the last seven decades, six decades this t is just what does, that's not the case and that is one of the takeaways. they see somethingdifferent in that he said it was a prologue that was necessary. he he said it was a prologue thatas necessary in order to

explain why the court to strike down the gun control explaining why they need their guns in order toies. let's ease the transition by talking about the overlay of the administrative authority intome of the reproductive health issues that are in front of us. >> we did get an where the top line headline supreme court keeps abortion on market.

industry some real heartburn "the case involved about the unsettlingg-standing regulation the fda of the two drugs used in the medication in 2000 so you had a group of litigants who forward and contested he went forward in the courts prevailed not fully up to the fifth circuit court of nk we can see how highly unusual it is that by unanimously saying these individuals don't have s it's the case that deals with what we could call for or judicial shopping in this litigants who framed themselves as doctors who would be onerous position to provide had abortions but

whoo emergency situat terms of hurdles it raises the question first of all where they -- where they all doctors no theys weren't o masters degree in theology another dentist into certainly those wouldn't have admitting privileges at any the first. their corporation there and then a final this file this litigation before the judge who terms of his own views with regards to re he's written about how he doesn't support abortion and he thin this is the bad so the case was brought before the judge and to the point what they were seeking to remove from the national marketplace. the court said we arele going toleave these matters to states. by removing it from the market be not just states that banned abortion but it would mean there available including in those states where

lawful. the litigants in that case said marketplace even in the year it was fda spent three times the length of time before giving a rubberstamp. drug that is very unsafe and harms people town that it's safer than tylenol andir actually were able to get all they wanted they said removed from the marketplace.nique because we solve thepo corporations intervening and a judge thahildhood vaccines either let's just remove them from think that covid didn'tl people to use covid to drugs who could order to remove that from the marketplace. pharmaceutical drugmakers came together and issuedd their it's important

to note the just magically appear. there are organizations that are strategically filing litigation and one thing the casese and lots of other administrative law challenges is the mergerlatory forces and conservative christian christian nationalist groups so they were involved in the case and they challenges brought by the states f texas against nondiscrimination rul the aca. they are involvedreventive services mandate and here they combining anti-administrative agencyng a gloss on who the plaintiffs are in a way to prevail in the who are appointed by president trump, of whom are chri nationalists you

might think roe v wade was a we are living through happened to of struggle around these issues so that roe v wade was in 1973 decision and it 7-submit wasn't close. five o republican appointed. the justice who wrote the opinion in roe v wade was based court by richard nixon. bush was the treasurer of planned parenthood and again to givef where the court is now versus what has long-standing norms within the spaces so the veryin different than what we've seen few years.ove to some of the constitutional issues around the reproductive rights and i wan to also bring in some of the jurisprudence that talk about the significant effectt n health

i want to tie a littlee side and for those public the many different ways that the ae's rulemakinge you have the extension of the statute but there's also the regulatory guidance and specific disapprove a particular administrative apparatus as man of making a court having the authority to second-guess and mentioning the topics of which the government functions. we do have to understand that as the intent but partt of the goal here is to defend t we go back to be much more sort constraint power because the moment you create the opportunity to second-guess everyt is literally. >> and it's not justanti-administrative states it is aggrandize motive power to

the cs a zero-sum game power in the three branches flows from one to all of these decisions the power is flowing to the court. to say we all heard the dogs decision wasn't about the court taking authority. it was givthe people of the state. >> one thing to think about with the administrative statect of protecting and for some of of the privilege that we our way to greener s where the water is clean we can make sure the water is we have the privilege of trees whichs. has bec socioeconomic issue. for some other people, been striving can opt themselves into. all about what it certainly does is for people who most v economically racially et cetera

to the administrative state live a clean and healthy life that your children deserve to be able to drink your children deserve to breathe fresh air.. your children deserve theopportunity to be able to walk into parks and enjoylet us not forget that there've been leg on those very for some people within our society we don't talk about it and werights movement was about rosa parks refusing to surrender at, but if we really pay attention to the jim crow laws that existed in the country, in many ways our goods ha spared from knowing the hundreds and thousands of them which also included that black people could not walk in black children could them swimming pools just note in the book on the race flawslaws in role in the 1964 civil a rights actlet's get

to the constitut simple and easy. i would like transition ing jurisprudence at the court level about the key issues affect. >> a case we are still waiting for supreme court that it game and have the medication abo they have another case pending on the issue of the labor act and the degree to which federal law is supreme over state law.

now it is that i a constitutional provision. that it. the abortion ban now it is only going to require abortion inw very narrow situations where someone is to pregnancy complications.f states there are bandsar that are so narrow they only allow physicians to act to save a person's life and so is teamed up involving teed up involving the federal and should be a very easy case and is supreme court a struggle. way through it i think most people anticipate the federal government is goingto lose the case because the of pregnant people in states of abortion ban but i think with the real >> this treatment act noticed inside was intended decades ago to

make sure all able to be treated if they were their home states they could go to a hosp be turned away. that has a legacy in the unit states but no one can send you in the time there were poor women beingy while in labor while in crisis being what was called dumped on the side of the road. ambulances coming a young woman about to deliver where isr't insurance. members of congresssa saw that was egregious that no woman because of her poverty should be sent away s while she is in labor.r condition shouldst be stabilized

threatened with thevil punishment and fines to $100,000, 99ears incarceration and in south carolina andex louisiana among lawmakers in south carolina about 20 signed a bill for that would perform abortion but anyway these kind of threats are making it difficult to figure out when can i intervene. in some intervened when the miscarriages thereis so she should be able services that she needs and if it is managing that miscarriage which is a euphemism for an abortion, then she a should be to protect her hoping to saveo challenged that and said our state abortio to protect her

health and the supreme court to take this up even though they were scheduled to hear it. >> so underlining issue of federal preemption which is a constitutional doctrine that the federal law is supreme. area that is not about preemption so let's turn to some of those cases. the supreme court isth the only court. there are many lower courts and courts. across the country there a lawsuits. a tennessee kentucky, indiana wyoming idaho you can add abortion bans and typically brought constitutions. state constitutions have merit of being much longer and more specific than federal old gross constitution atfederal level. so there's rights to privacy explicitly in these statutes.

my favorite to provision and of states following during the designe affordable care act in a number of state legislators who a republicans motivated other constituencies to add the rights of medical freedom or healthcare choice, those anti-obama care mandate provisions that a mobilized against abortion bans because surely if you have the right to medical care that would include your reproductive health. >> the bac be quite scary. almost as if the wheels have of the speeding car and when w recently the supreme embryos have constitutional rights and the legisla thereafter went to work to create a protect in vitro fertilization. they have the same right in

alabama and court. they upheld an abortion ban dating back to 1864 in 1864 a teven a state in which slavery was still the united states and despite the fact that the states actually had already t we are a theory methodology that the court has spent more time leaning into or claiming that it's leaning into worth noting they were veryd be one that is living and be it and that the world that theye 1700s and 1800s would not be same come decades and centuriesar the original muslim methodology is one that was taken out in recent decades. justice scalia is one of the

proponents we have to and reaching back in history is going to help us better be ior in which the laws should be shaped going f >> i'm soon going to turn to you andnd i hope you are thinking of knew that i want to key up one last issue i know we could spend of the time on. at a health conference about equity and end and the imperative to everyone in the country and jurisprudence right now that's directly of healthcare institutions and government programst to embrace policies that they that. it would also of course being naïve to think that the both cases don't have a racial there's a direct attack on anything that characteristics to achieve equity. we talk about that? >> i don't even think we have to pu reproductive space but for the purposes of what you' think is about democracy within the it's the case that m.

you wanted to vote. it. what is the state that broug the case that overturned roe v was mississippi. if we somehow thinkorm where we are today, then we are mistaken. the dog's decision was actually forestalled by a court opinion and in district court opinion, it was one of the most profound district court opinions i've ever ii was closing my eyes to think

of the judge from the american his opinion the time mississippi was making the it was legislating in this s protect district court opinion, he said il you on this and you say you want abortion bans toomen's health. how is it you have the rate of maternal mortality. 80% of those that have mortality in the state and then went on to talk about women being denied sittnd the long history it was that stay that lasted until the supreme court took up the opinion and overturned roe

i think this is where we might t this as animus of equal protectionimplemented bans on gendered affirming care. for minors and for adults in some the most vulnerable people on people most of in an area where therethere's not adge, and with really statements about these individuals had a total reductive vehicle rndards of care for the treatment of minors who are with gender dysphoria and this is taking what wask and moving it into other areas and t more vulnerable people. sure we bring in topics that interest you all. there are people with microphones i and tell and keep your

question relatively short. you haven't mentioned anything about the actehe from that. >> it is an 1873 law and was the head of the inspector service. the act also includes the on contraception and abortion being transferred. during the oral argument the case it was brought up times even though the justices didn't mention it in the decision. that certainly couldai be taking place. it is a federal law that's been tively predated

roe v wade legalizing contraceeo who are. the distribution that would be the act to order to do so. but it also raises issue tells us something abortion and the country. the pilgrims practiced the blackmun talked about that. it is just a tiny stone throw after. it's all part of a movement that can b the kind of fear of replacementp contraception

if you stop abortion then thatte it will have babies and you can t ow united states. this is julia brian. where is the separatio and when is the legal battle going to come fromthat aspect because it seems like this is s don't understand why it hasn't comemo more. >> i half the supreme court essentially establishment clause out of the constitution is the answer. at the supreme court heldth that the can't withhold money from religious institutions.

it's very strong in the public mind because i think most people recognize that passing a law that sort of rel partichere are state law challenges and a handful of states including in missouri brought by the re's also a challenge that is now the indiana supreme court where group challenged the state abortioneedom restoration act but pending in the indiana supreme court now where they would receive an exemption in order to receive abortion consistent witheligious beliefs because they are operating under a sys inherently religious. >> even before the dobbs decision they were makings statements that they were within

the space giving deference on the scale to the first amendment religious protection while other were being strategy with doing that. even before the dobbs decision andthere a state of california after years of study determined that which almost all of them are based in california determined through the false information being presented in the state of california by the crisis pregnancy centers that were located they passed two laws called the fact act that basically notice requirements and notice requirements are everywhere. ey said we will address this by two notice requirements. one, you whether you are medically licensed since people walkingh stethoscopes and lab coats can make a woman think you are doctor when you're really not.

the state of california provides reproductive healthcarefor low income people so if you can't afford it california will you with your contraception abortion and other things. in a split decision before the theydo lost an opinion written by justice thomas that california wants to talk and communicate, they can put it on billboards in that decision and you've had the justices saying a weaponization of the first amendment. >> i will note we hadysis at stanford colleagues of the cases where lower courts throughout covid restrictions and the number one reason for those restrictions being rejected was religious much in play. i think we can one more in. maybe positive note, is there you that is pending or

possible that of these healthcare the end. >> they can't answer. i don't think we are ending on a positivee. >> the case that just came of hope. this is the the laws that would basically for the restraining order from being able to own a firearm and wit the recent gun control and onward that this would go that way as well arned out the supreme court upheld buthey might not necessarily have the right to own a firearm of hope from the otherwise pretty dreary. and that's good one

because intersection that addresses gun domestic violence and it is pregnant, so in that way it is a very good decision that we have coming from the court with one dissent by justice thomas. >> i'm not going to give into the here. i am enco be in a moment where particularly progressives are starting tohe court andt they don't want the power of the court and it might seem like a strange thing for someone who sits in to lean into our democratic institutions and our institutions but in places acr certainly in texas using advocates that administrative bodies cr of care involved in running f office and challenging people and verying

circumstances. urt and gs so we don't have to talk about them so much because they don't have so much of an imprint where we the people are the ones deciding what our health caree and what our constitutional democracy should be like. michele: i'll start with saying that we're at a time when w about the ballotking initiatives that have taken place wh so many of them women saying that they own hands. and it's important that they do so. this kind of arc of freedom that dr. king talked about, well there's an arc that's silent and that is the one tha we're still on that pathway of a freedom that might be obscured bywe to women lawyers on a stage here, that we could half the law school classes now happen to be comprised of and yet still this is a court that even before dobbs in a series of cases time and time again struck down mattersn on pregnancy pay equality and more when on

the court. so let me say this, at a time in dark, it's actually when we can see the light of our stars in such clear ways and that, of words, joining me ind