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>> when connection is needed most, cox ishe bringing affordable internet to new tech to boys and girls clubs and support to vetera■g matters most, we'll be there. >> cox, supports c-span as a public service. along with thesetherroviders. decrac■you a front row seat to impact recent and upcoming court decision also have on health policy at the aspen ideas festival in colorado. they talked about several cases including one which could challenge the authority of federal regulators and■j abortie from the emergencynt and labor act. this is about 50 minutes.

>> it's our first panel ever devoted and their role. i don't think it's an overstatement to say that the role of the courts has never been policy. and that's the topic we are going to explore today. my rex collection is courts adjudicated differences and been involved. the patriot a to see if it woulde suess t*ul to the supreme court. the entire structure, the largest health policy change we made■ in decades, was uncertain pending the decision of nine■gl. so now we are a decade later anf the courts has just grown even further.

much more knowledgeable about these topics than i are our three panelists. i will introduce them. to my far left is erin, who was on a panel with me in this same■ room an hour ago. she is the director of the society at georgia state university and about to move to the brown school of public elizabeth next to her is a professor of law at the texas school of law. and michelle to my immediate left is professor of constitutional law and global health policy at the georgetown ersity law center. i thought something that may fly a little bit below the radar given how much people ad hear about what happens in the courts. that's the relationship between administrative law. a topic that may seem is quite . i'm going to start with erin to set the stage about what that

means and what'st stake right now. erin: when we think about what the of the three branches of government, the courts being the administrative -- the presidential, executive branch h.h.s., c.m.s., f.d.a. and every congress. so what administrative lawance of power and what is the ability of the couq"■rt defer to or check the aions exe. before the court dn'come out yet, maybe next week, there is a challenge to chevron doctrine you might have heard of. chevron name from the 1980's that basically created ws a statute and delsaegat agency, and doesn't spefy detaie

agency to fill in the gaps and regu ahe law, that the courts should really defer to the agencies' interpretations of the statutes, they are the been created to ad. that was the concept o's been td for decades. the court has expressed hostility to the concept of the administrative state overall. so we have befor the court this term on the twin cases squarely testing the question of whether the deference should be overturned and relace for itself what the scope of agency a agency interpretations of their own constitute and authority -- statutes and creating some definite -- some concerns study

administrative law. the reason it would create caree is that there are so many agency determinations that consequential, that are done by the agency through regulation. chevron doctrine is overturned, which is largely expected to be done or cut back considerably, then what that means■b is erency rule, think reimbursement under medicare, t f.d.a. decisions about the safety and efficacy of device, these decisions that are made by expert agencie long-standing regulatory frameworks they have come up with, that be subject to second-guessing by the court and litigation public who may have reason to chlenge them and say, we don't think that's the proper interpretation. and frankly the cou shouldn't defer to the agency there. not because they are the ones delete congress. that is the main concern the expertise of agency's authority is up for

grabs and subject ton. if the court goes where we think it will. alan: i hope we health side of . the case y desed is not a health case. the chevron doctrine did not th. get's go deeper on what the althtions are of a world without chevron. if we tht this historically, how we get a food and drug administration, it's not something that the it's not something that the pilgrims brought over. michelle: what does it come out of? a crafty, thoughtful journalist writerding time on the south side of chicago a century at meatpacking plants. what he's finding in plants is o horrific

it's rat meat. soiled stuff -- spoiled stuff. it's moldy. horrible. the book "the jungle" comes out of that. thismericans are eating. who is going to regulate this stuff?■ that he talks about. it's actually from writingbo it's writing about the infections. it's writing about the h that te meatpacking workers are living unde be honest we are still in that space. there have been these studies, we can defer that conversation for another panel, what meatpacking looks like in the united states today. but this a food and drug administration to overseas, get. then what people are drinking. thenkr the drugs that people are using. are these things safe? is there a responsibility on the

part of government to that these industries put things in the marketplacet won't kill people. elizabeth: i think it's a broader phenomenon in terms ofi. the administrative agencies, the benefit rather congress paragraphs through which -- pars throughfective is giving it to n agency that has the e the result of undermining chevron, agency is to involve courts in determinations. just an inio week, sometime the supreme cour. we have heard during this conference about gun violence as a public health issue. there you had an tobacco, and firearms agency determining that bump stocks fie and were prohibited as machine

guns.ss then you have nine unelected justices. a-- of the supreme court come along and some are engaged in these decisions where they are really parsing finally -- just as thomas justice thomas put his-n his opinion becse to try to explain that in his expert opinion a bump stock a machine gun. under tpherlederal law. we are seeing second-guessing of medical expertise, scientific expertise, of professionalism within agencies. expertise. what i found intesti is a lot of the health sector' very nervous about as well not just on expertise but uncertainty and i wonder if any of you could comment on the role of the in is and how that would affect the■be

decisions are made. >> it's believed if the chevron congress treupbaway that would agencies and the public. erin: the reason ishe process by which a rule, process used to mean that ast long as the agency followed the procedures and did its rulemaking, then because of chevron deference, any construction of the statute or authority would stand. what this does is basically opens up, because of a second-g it, if you are -- somehow your indu penalized or you have some political reason to object to it, all of the agency, but past ones as well are up for grabs. that meanshe front of the court, ask these justices do you regulation?w t this is the right reading of the statute? that means thae certainty that we live under, and the operate the health system admin.

all those rules and decisionsw . they could be relitigated over and over. michle areas where there has been significant defee to a century for as long as we have had these agencies. th are individuals who are deeply are hired into these agencies. it's true thatometimes there is some political capture. you seem people coming from■r be appointed in these agencies. thai bulk of those people who work with an agency types of individuals who work within these agencies, educated people who dot the i's, cross the the records that are coming from agencies. and this point you are making

then about the second-guessing, i think it's important to connect that to the time that we arin not as if we have gone through a period where we said, oh, th of how this kind of sausage is made. that for the last seven decades, six decades, this is just what the supreme court does. that's not the case. i think that's one of the this conversation that this is a kind of new thing that' on that point with justice thomas and guns, years ago in a decision which was reportee court the day before the too, js the author of that opinion did something that was too. in that he said that it was a progue■j thawas necessary. you won't fine supreme court cases with prologues. it one that was necessary in order to explain why the court was going to strike down this new york gun control law. he said was

necessary to show how important guns male bodily autonomy. he spent five paragraphs. that takes away abortion rights. the day before he's talking about black mal bodily autonomy and guns being central to that. pe explaining why black men need their guns to protect their bodies. a concurrence.n dobbs there is no talking about women's or black women's bodily autonomy. inside these decisions putting in gifs that help his. al kwra*pb: i knew it would not take■h us long to move into reproductive rights. as we planned and as is appropriate. let's ease the transition talking about the overlay of administrative some of the reproductive health issues in front of us.

o wants to begin that evolution? elizabeth: supreme court keeps medication abortion on the market. sort of. is was a case thatave industry some real heartburn the case involved, this goes to erin's point aut long-standing regulations, the f.d.a. approved mifepristone, one of the two drugs used inn i. so you have a group os contested that approval, and contested other regulatory changes from 2016 and from. and they went forward in the■ p. not fully. but up to the fifth circuit court of appeals.

michelle: it's highly unusual, we can see how highly unusuait y have standing.ndividuals don't it's a case that deals with what we forum shopping or judicial shopping. in this case of litigants who frame themselves as onerous position to provide heth care services to women who have had abortions but who are in an emergency situation. there's a lot to sort of jumpovh that. it raises the question first ofy doctors? no. they weren't.r's degree in theology. another a dentist. admitting privileges, any hospital. so that was a first. second thing is that there is a

judge, matthew, who is in amarillo, texas. dge there. they set up their corporation filed this litigation there before thaty os of his own views with regard to reproductive health issues. he's written about how he does not support is -- it's bad. so the case was brought before judge matthew to liz's point, what they were seeking to do is move mifepristone from the national marketplace. the dobbs decision, the court o states. by removing mifepristone from be not just states that banned abortion, buouger available, including in those states the litigants in that case saide marketplace with approving mifepristone even though ithe■o

approved the f.d.a. spent three times the length ofr stamp thanth drugs released that year. they said this is a drug that's very unsafe and harms people.hat mifepristone is safer than tylenolre able to get all that they wanted from judge■ kazmarek. he said yes this drug should be removed. made its way to the fih circuit and made its way to the supreme court.u raised about corporations intervening, this case because we saw corporations dangerous. what could happen if someone doesn't like childhood vaccines says i don't believe inudge tha childhood vaccines, either, yep, remove the from the marketplace. or people who think that covid think that it's harmful for people to use covid drugs who shop

in order to remove that from the marketplace.■ceutical drugmakere th there was an intervention by the maker of elizabeth:hink it's important to note. litigation doesn't just magically appear.■9 organizations who are strategically filing litign. one thing that we see in the mifepristone case, but lots of es, is the merger of forces and conservative christi, groups like alliance defending freedom,■8nstitute, the beckett fund so they were involved in the mepristone case. they are also involved in challenges brought by the stq6■r the a.c.a. they are involvedgi the prevents

mandate. and here the anti- administrative agency andn who the plaintiffs are in a 6 that's designed to prevail in me appointed p are christian nationalists, including matthewy creating a christian nation through the courts. michelle: it's important to note, to talk about reproductive health and rights, just where the courtas if one were to follow what one would hear from what's lhrtedtuu might think that roe close deci. and that what we arers of just real struggle around these issues.

roe v. wade was 1973 decision and it was 7-2. it wasn't close. five of those seven justices were republican appointed. just, who wrote the opinion, was by rd nixon. prescott bush, who was the father of george h.w. bush, was treasurer of planned parenthood. a sense where the court is now versus what have been long-standing norms within these spaces, longer standing norms are very different than what wet these l. alan: we move full bore into some of the constitutional issues. i want to bring in some of the jurisprudence around race which has aalth. i want to sort of tie a little bi a bow around the administrative side. for those who -- the general public, the many different wayss

were involved. there is remaking where you have in essence the extension of a statute. but there is subregulatory guidance. then there are specific or disapprove a particular drug. there's --istrative a apparatus hasff■6#m!2erent ways of making a decision. image of the court having the authority to second-guess every dimension of that, along all of the topics in which the government functions -- keeping the court busy. alan: we have to understand that's the intent. part of the goal is to■jg statey we go back to a constrained powers of government because the me you create the

opportunity to second-guess er is literally throwing sand in the works. it's a zero sum game.ement power in the threem branches flows there one to the other. all of these decisions the power is flowing to the cou. al kwra*pb: perfect place to say that we all heard÷ tha the dobbs decision was not about the court king autrity. it was giving it back to the people of the state. don't you remember readingked a. one thing to think about with the administrative state is that it has an effect of protecting us all. some of us, because of the privilege that we have, we can make our way to■% sites where the water is clean. we can make sure our water is hf

trees. whic a socioeconomic issue. for someth intergenerationally, they have been striving for some people can opt themselves into. people can opt themselves into. the administrative all but thot vulnerable economically and raciallyetc., it's an administrative state that says you two deserve to be able to he that your children, too, deserve to be able to drink clean water. your children, too,2; deserve to breathe fresh air. your children, deserve the opportunity to be able to walk enjoy parks. and let us not forget that thehe very issues, those v some peopln

our society, we don't talk about it and we think a civil rights movement was about rosa parks refusing to surrender a seat and that was it. but if attention to the jim crow laws that existed in this ways our guts have beenred from knowing the hundreds of thousands of them that also peot walk in parks, that black children including those funded through their would just molly murray and her book of race laws in the united states played a pivotal r board of education and her book of race laws in the united states identifies those hundreds of thousands of race-based laws like that. alan: i'm just going to say in a much shorter way, most of the owf the administrative

state has been through movements that were more to the left. if the administrative state, you defang the p of its d there are many, that the country tried to use to redy ills. get e constitution thas so simple and easy. i'd just like to transition to what we're seeing in terms of shifting the jurisprudence at the court level about key issues that affect health. liz? elizabeth: a case we're waiting that the supreme court is out of the abortion game. theyad the medication abortion pill decision. they have another case pending on the issue of emergency medical treatment and labor actl

law is supreme over s is. that's a constitutional provision that sayy>$%s s. that should be the end of it that aboio don't preempt mtala. and that will require abortions in very narrow situations where someone serious health threats due to pregnancy. but those situations arrive. and in a number of that are so y only allow physicians to act to. so a case i teed up involving the idaho a very easy case is apparently causing the supreme court some struggles. and there might be a way through but i think most people■i anticipate the federal government is going toose th mtala case to the detriment of h abortion bans but with real dang

tore pregnant people across the country. michele: to everybody.rgency lat says in law labor act, it was aw was intend all americans would be able to be treated if thewe home states some place and they had an emeen hospital and not be turned away. that, too, has a racial legacy in the united states. but you could go. no one can send away. and this came about in a time in which there were poor women being sent away while in labor, crisis beings what was called dumped, sometimes on the side oeces coming in with this woman in labor and about to deliver, she doesn't have insurance, the

hospital, sorry, her, send her away. being something that was= egregious, that no woman because of her poverty should be sent away while she is in labor. cone stabilized, deliver the baby, help her if she's in a miscarriage crisis, and we move on. it's bn something that helps all americans because it wasn't limited to women who happened to be the wake of dobbs, what we've heard are the horrific cases from across the country, women bleeding multiple day going into sepsis, their doctors being threatened with removal -- their doctors being threatened with civil punishment , fines up to $100 in texas, 90 years of incarceration in texas, in south the threat oe threat among lawmakers and

carolina, about 20 lawmakers signed the bill for the death penalty of doctors that would perform anyway, these kinds of threats making it then very difficult fort out, well, when can i intervene? how blue does s need how many days does she need to beedg? they've not intervened when the miscarriage is there. and so the federal government, the president said look, my agencies, figure out what we can do about this, mtala should apply. a woman goes to the■ hospital in crisis she should get the services she needs. and it'e and she should be able to get that in order to protect her idaho challenged that and said, you know,■ our state abortion bn trumps our federal law to protect her health and the supreme court decided to take this up even the ninth

circuit was scheduled to hear it. alan: this raises the underlying issue asl preemption which is constitutional doctrine that the federal law is supreme and there's a law ina going on not about preemption. elizabeth: there's a lot going on. been acting, which is a law professor problem, ashoug iy court. it is not. there are many courts. there are state courts and across the country t are lawsuits in utah, idaho, wyoming -- michele: and arizona. elizabeth: and they're bug have the merit of being much longer and more specific than

our federal creeky d growth constitution at the federal■■ level so there are rights to privacy obvious explicitly in these. and the provision being used in a number of states during the time of the passage of the affordable care act, a num of state legislatures dominated byr constituency to add rights of rf health care choice to the constitution those are anti-mandate provisions now being mobiliz against abortion bans because if you have a right to direct medical car would include decisions about your reproductive health. michele: the backdrop for many people h as if the wheels have come off the speeding car. in alabama, many people took

note when very recently the alabama supreme court said that embrs itutional rights and the state legislature to work to create a law that would protect in vitro and assisted reproductive technologies in that state. so have been predicted eight years ago, i wrote about what happensnemenm is that embryos have the same constitutional right as pregnant wome the supreme court there thought and ruled that they do. in arizona, the supreme court there very■á6 recently upheld aa time arizona was not which slavs still lawful in the united states. and despite the ft legislature,t alreaded a 15-week

abortion ban. so part of what we're seeing, too, is the furtherance of a theory,us say, called originalism that the court has leaning in to or claiming that it is's worth noting that the so george washington, thomas jefferson, and others were very, very clear about our constitution should be one that is living and evolving, that that would be it, that the world that in the 1,800s would not bee come d onward but the originalism methodology is one tt wa ke decades, not very old at all, justiceóp y proponents of this, this idea that'v history and reaching back in history is going to

better be informed about the way in which law should baped going forward. alan: i'm soon going to turn to you and iop thinking of your questions. but before we do that, i want to te know we could spend the rest of our time on conference, there is a lot of discussion about equity and the imperative to achieve equitable health for everyone in the country. andre's a lot of legal jurisprudence right now that's directlyects the health care institutions and government programs to embrace policies thathe■l■l achieve that. it would also, of course, be naive reproductive health cases don't have aj" racl element. but even setting that aside, there's a direct attackn anything that is -- that have ce■rtain characteristics associated with trying to achieve equity. can we talkbout that? michele: let's.

i don't think we have to put aside the reproductivepurposes g about which is really about demoacy, dem think that dobbs is actually■ a great space to tease this out. it's a case that comes out of the state of mississippi. my maternal grandmother was from the state ofssissippi was a stad laws if you were a black you could not play checkers in the . you could not bowl.■ mississipo vote, you had to guess, and you were bla, jellybeans in a jar? how many bubbles on a bar of st. in amendment which banned slavery in the united states. and in 2013 mississippi got to it. that is the state that brought us t d overturned roe v. wade? it was mississippi. if we somehow

does not inform where we are today, then we're woefully mistaken. the actually forestallede who issued a districco opinion and in that district court opinioit was really one of the most profound district court opns carlton reeves, closing my eyes to think of judge american sout. and in opinion, at the time mississippi was makine claim it was legislating in this space in order to protect women. ■4in hisis court opinion, ic mississippi, you say you want abortion bans to protect women's health, have thf country or maternal morbidity in

the country, how is it that blaf black women succumb to cardiac death who have maternalrtality . then he went on to talk about mississii and wo. the long history of mississippi ny to open up bank accounts in their n■ names, loans in their own names. mississippi, how is this about you protecting■h women's interet and protecting women's health. you actually never really have shownhat. and it was that stay on the law that lasted until the supreme urt took up the opinion, listed the overturned roe v. wade. erin: i'd the attacks we're seeing on transgender people and their access to health care. i think this is a moment the

constitutional doctrine might think of thi a the tip of the spear of equal protection. elizabet 1states ithyears have d bans on gender affirming care. for minors, and some of them increasingly for adults in some meaningful ways. these are really attacks on the people most of us don't know in an area where there's a lot of public knowledge. and with really statements about these individuals and a total rejection ofrds of care fe treatment of struggling with gender disforeyeah. and th was the abortion playbook and moving it i other areas and targeting still more vulnerable people. alan: ok. we could keep going but want to make sure we bring inopics of interest to you all. there are people with

microphone i would ask that when they come to you, y you are and you keep your i see someone right here. >> bob ratner from washington, d.c. you haven't mentioned anying about the com stock act and the consequences that may come from michele: com stock is law. anthony com stock was head of inspector thñ

mifepristone case, comstock was brought up several times though the justice disnot mention it in the mifepristone decision and certy could be interpreted as some signaling that was taking■w■q place. comstock is a federal law and is a federal lawen relatively dormant since the griswold v. connecticut whichade, legalizing contraception for people who are married. isenstat and beard after that for single individuals. it's possible an argument could it's certainly being thought of by the justices, perhaps, some of the justices,thers, that if one wants to stop$m in the mail and courier service ofe that comstock would be revitali.

but comstock raises another issue that really quickly to get , 1873 which tells us something. abor contraception was not illegal at the foundationing of this country. the pilgrims practiced abortion contraception and in roe v.■çbot that. in 1873, it's a throw after slavery is over. the abortion ban, 1864 right before slavery, comstock, 1873, are all part of a movement that can be read about that were really about the kind eaplaceme. if you stop contraception and you stop that white women will have babies and you of the united st. perhaps that's for another conversation. thank for you that question. alan: here in the front.

>> this is julie o'brien. thank you. i've always had this question about where is the separation of church and state and when is some legal that aspect because t seems like this is so blatantly abusing that, and i don't understand why it's not come erin: law and religion is my other hat. the supreme court has essentially read the establishment clause out o77■pfr there, and in a series of held that states can't withhold they provide them to nonreligious institutions. elizabeth: this is a total abandonmenth.?■sf any separatiof church and state.

i do thinking the anti-establishment argument against abortion bans is very strong in the think most people recognize that passing aaw mattw that life begins at a certain point, whether that is the fertilization of the egg or a fel heartbeat, it reflects and some religious ideology. there are state law challent clauses in a handful of states, including in missouri, brought by ational group. there's also a challenge that it where a group of mostly jewish women ha challenged the state abortion ban under■ the religios freedom restoration act and so far have won at trial and the court of appeals at the indiana supreme court now where theyrder to receive abortion consistent with their own religious beliefs because

ey system that is a certain christian vein. michele: even before the dobbs decision, two other others were weaponizing the first amendment in space giving a sort of deference or thumb on the to first amendment religious protection while other constitutional rights were being underm through the courts strategy and w the dobbs decisie was a case, mifla v. becerra where the state of california after of study decided crisis pregnancy centers which of them are religiously based, california had deternegh years of study that there was false of ce crisis pregnancy centers and thy

passed two laws, fact act, that basically were noticequirementse everywhere. we could probably go out of here and see a notice on a wall that's requireed. california said we'll address this bywo notic one, you must identify whether you're medically lenle are walkd with stethoscopes and lab coats could make a womaning you're a doctor when you're really not. so you must post whether you're medically licensed. and the second is that thecare services for low income people. afford it, california will help you with your conaception,rtion, other things, post those twoa se supreme court before dobbs they lost in an opinion written by st look, if california wants to talk and it on billboards. and decision, then huh

justice kagan saying ok, this weaponization of the first amendment here. al a:ill note alan: i will note we stanford ar courts threw out covid restrictions and the number one reason for those restrictions being rejected was religious liberty claims so it isyay. i think we can fit one more in. see -- i see someone there if we can a microphone. >> i'm kathy kennedy, maybe to end on a positive note, is there one favorite case for each of you that is pending or possible that you think would really advance some of

alan: if they can't answer it, i don't think we're ending on a erin: i guess the violence women, the rahemi case that just came out i think was a positive ray of hope. alan: say a little more because it just came out. is the challenge to laws that would basically regulate the ability for someone who is subject to a violence restraining order from being able to own a firearmng we sort of recent gunf all of it bg and onward that ts as it turned out, the supreme court■a upheld that, that yes, people der domestic violence restraining orders can be regulated and may not cessar own a firearm. that would be my one ray of hopy

dreary session. michele: that's a very good one. because it's an intersection case that both addresses g domec violence. and domestic violence is intensified when a woman is■ pregnant. and in that way, it's actually a very good decision that we have coming with one dissent by justice thomas. the courts here or to the cases. i am encouraged by the fact that we seem to be in a moment where the american people and particul p starting to understand the power ofing to understand that they don't want the power might seem like a stre thing for someone to our admini.

buin places across the country, and certainlyth, you se administrative bodies and involved in creating alternative axises are involved in running for office and challenging people in very jere writeomnderred -- jerry -- gerrymandered circumstances like taking power from the supreme court and changing jurisdiio changing justices to the supreme court and doing things so we don't have to talk about them so have so much of an imprint where we theg what our health care looks like and%, what our constitutional democracy should be like. michele: i'll start with sa time

thinking about the ballot in place where folks have come forward so many of them women saying that they can take democracy into their own hands. and it's important that they do so. this kind of arc of freedom abo, there's an a that' that is the one that involves women. we're still on that pathw■yay oa freedom that might be obscured by the fact we can point to n ■wyon a stage here, that we could point to half the law school classes now happen to be comprised of women. and yet still this is that even before dobbs in a series of cases time again struck down matters involving women on pregnancy,ndn justice kennedy was actually on the court. so let me say time in which things can be so dark, ity ówhen we can see the light of the moon and the light of our stars in such clear

ways and that, of course, should give us all■d path of freedom. alan: with those beautiful words, joining me in thanking erin, elizabeth, and michele. [captions copyright national cable satellite corp. 2024] >> tonight, a look at nato's future and the potential for further european expansion. watc the entire event for the council on foreign relations at 9:00 p. eastern oniq-span. also available on the free c-span now videopp c-span.org. ♪ >> on thursday, tune in to the s the two presumptive former president donald trump and president biden face off to earn your vote in november. our coverage begins 8:00 p.m. easternwhat's to come. then at 9:00 p.m. eastern, our simulct ■÷ the