been without leadership too we've had divided and deadlocked govern s >> watch historicvention speeches saturdays at 7:00rican history tv on and w c-span's live 2024 coverage of the republican july 15th to the democratic convention august t 2nd. >> c-span is your unfunded view of government. sponsored by companies and more. >> charter is proud to one of the best internet providers and we're just getting 100,000 miles of newastrucn has a public service, as well as these other providers, giving you a >> several lawyers does the impact recent and upcoming court decisions will have on health policy at the aspen ideas festival in colorado. they talked about several dayses could challenge the authority of and the others that could exclude

abortion care from the emergency treatment andis is about 50 minutes. >> it's irely to the courts and their role. i don't think it's ovstatement to say that the role of the courts has never greater in health policy. and that's the topic we are going today.is courts have adjudicated differences a the fact passed,hen the patriot act -- affordable care fact afd, we waited towould be success t*ul to the supreme court. the entire structure, the we made in decades, >> the entire structure, role of the courts has further. much more knowledgeable about thesethree panelists. i will introduce t my far left is erin who was me in

this same room an hour ago. she is the director of the center foraw and society at georgia state university and about to move to the brow health. elizabeth next to her is law at the texas school of law. and michelle to my immediate left is professor of constitutional law and global heal the georgetown university law center.ght we might start with something that may fly a little bit below theen people read about and hear about what happens in the courts. that's thethe courts and administrative law. mundane but is quite consequential. m start with i' erin to set the stage about what that means and what's at stake right now. erin: when we think about relationship of the three branches of one the administrative -- thes, including h.h.s. c.m.s., other agentcy, and then the congress. so what focuses on what is that balance

of power and what is thebility of the court to second-guess or defer to or actions of the executive branch agencies. didn't come out yet, maybe next week, there is a the long held chevron doctrine you migh is a case name from the 1980's that basically created a rule that when congress creates and delegates authority to an executive branch agency a doesn't specify all the details but authorizes the agency to fill i regulate and implement the law that the courts should really agencies' interpretation experts in, they have been created to administer. that was deference. that's been the law of the land for. the court has expressed hostility to t chevron deference and the administrative state overall. so we have before the court this term cases squarely test chevron deference should something let the court decide

for itself what tf agency authorities are and second-guess agency inte own constitutes sta*uts and authority -- statutes and way that's creating some definitens among those who study administrative law. a concern in the health care space is that there are so many are very consequential, that are done by the chevron doctrine is overturned, wh largely expected to be done or cut back considerabthat means is every agency rule, think reimbursement under think f.d.a. decisions about the safety andf a new drug or device, these decisions that are mad according to long-standing regulatory frameworks the these would all be subject to second-guessing by the court and litigation b parties and industry or the public who may have challenge them and say, we don't think that's the proper and frankly the court shouldn't defer to the agency there. ones delegated by congress. e of the agencies and

agency's authority is up for grabs litigation. if the court goes where we think it will. alan: c go deeper on the healthof that. the case you described is not a health case. the chevron doctrine arise outs of the health issue. get's go health implications are of a world without elizabeth: if we think about this historically, a food and drug administration, it's not something t founders thought of. it's not that the pilgrims brought over. does it come out of? a crafty thoughtful journa writer who is spending time on the south side of chicago ago and looking at meatpacking plants. what the meatpacking plants is so horrific horrific, what's going into the sau it's rat meat. soiled stuff -- spo moldy. horrible. the book "the jungle" comes out this is what americans are eating. who is going to regulate the slop that he talks about.

it's actually from about the slop. it's writing about the infections. it's wri conditions that those cking workers are living under and to be honest we are still in that space. there have been these studies an defer that conversation for another panel, what meatpacking looks like in the united sta is what brings us a food and drug administration. administration toversight, to what it is that people are eating. then what people are drinking. then the drugs that people are using. safe? is there a responsibility on the part of government to make sure that these industries put things in marketplace that won't kill people. elizabeth: i think it's a broader phein undermining expertise. the administrative agencies, the than let congress paragraphs through which -- whadrugs are safe and effective is giving it to agency that has the expertise. the result of undermining undermining administrative agency is to

involve second-guessing these determinations. issued this week confuses me, on bump stocks. we have heard during this conference about gun violence as a public health issue. there you had an alcohol tobacco, and firearms agency determining that within the scope of the statute and were prohibited as ma then you have nine unelected supreme court come a-- of the su decide they disagree. they are engaged in these decisions really parsing finally --t thomas put pictures in his -- justice thomas put h because he wanted to try to explain that in his expert bump stock is not a machine gun. under tpherl federal law. we are seeing second-guessing of medical expertise, of professionalism within agencies. alan: you mentioned the expertise. what is a lot of the health sector' very nervous about as well not just

on expertiseut uncertainty and timing. i wonder if any of you could comment on the role courts in inserting themselves and how processes by which some of these decisions are it's believed if the chevron congress treupoduce a lot more uncertainty for agencies and the public. the reason is the long process by which a rule, rulemaking goeshrough, that process used to mean that as long as the agprocedures and did its rulemaking, then because of chevron permissible or reasonable construction of the statute or authority would this does is basically opens up, because of a -- if you don't like it, if you are --enal or you have some political reason to object to itagency rules, not just the new ones, but past ones as well are up means they can be challenged in front of the court, ask these the right regulation? this is the right reading of the stat certainty that we live under, and the operate or food and drug administration. all those rules they make pursuant to them are now up for grabs. they could relitigated over

and over. michelle: these are areas where there has been significference for decades leading on to a century for as long as we have had these being that these are individuals who are deeply vested that are hired into these agencies. it's true that sometimes there is some political capture. you seem peopleom industry who then become appointed in these agencies. that said, the bulk of those people who work with are career, lifetimer types of individuals who work within learned educated people who dot the i's's, and then review the records that are coming organizations agencies. and thi then about the second-guessing i think it's important to connect that to the time are in. it's not as if we have gone through a period where we saidthis is just been a part of how this kind of sausage is for the last seven decades six decades, this the supreme court does. that's not the case. i thiake aways in this conversation that this is a kind on that point with justice

thomas and guns, two years ago in a decision which was reported -- released by the court the day dobbs decision. there, too, justice thomas as the author of th there, too. in that he said that it w necessary. you won't fine supreme court one that was necessary in order why the court was going to strike down this new york gun control law. said the prologue was necessary to show how were to black male bodily autonomy. this is the day before dobbs that takes away abortion rights. the bodily autonomy and guns being central to . five paragraphs explaining why black men need their guns to protect their bodies. the next he issues a concurrence. there is no talking bodily autonomy. or black women's bodily he pivots inside these decisioifs or certain narratives that help his. al kwra*pb: i knew it would not take us long to move into

reproductive rights. appropriate. let's ease the by talking about the overlay of authority and some of the reproductive who wants to begin that elizabeth: supreme court kee medication abortion on the market. sort this was a case that gave industry heartburn. the case involved, this goes to erin's unsettling long-standing regulations approved mifepristone, one of the two drugs used medication abortion in 2000. so yououa gr came forward and con approval, and contested other regulatory changes from and from 202. and they went forward in the courts and prevailed. not fully. mostly. up to the fifth circuit court of

michelle: it's highly unusual, we can see how highly unusual it is by this court unanimously sayingse individuals don't have standing. it's a case that deals could call forum shopping or judicial shopping. a group of litigants who frame themselvesould be placed in an onerous position to services to women who have had in an emergency situation. there's asort of jump over in terms of hurdles with that. it raises all, were they all really doctors? no. they weren't. one had a master's degree in theology. e individuals would not have admitting priv was a first. second thing is that there is ajudge, matthew, who is inarillo, texas. he's the lone sitting judge there. they set up their corporation there and then filed this litigation there befhat judge who was very open in terms of his own views with regard reproductive health issues. he's written about how he

he thinks that this is -- it's bad. so before judge matthew kazmarek. to liz's point, what they were is remove mifepristone from the national marketplace. the dobbs decis said, we are going to leave these matters to states. by removinge market it would then be not just states that mean it was no longer available including inabortion would be lawful. the litigants in th the f.d.a. hadid rushed to the marketplace with approvi even though in the year it was approved the f.d.a. h of time before giving it the rubber have shown that mifepristone is safer they actually were able to get all that they wanted from kazmarek. he said yes this drug should be removed. and it made its way to the fifth circuit and made its way to supreme court. to the point that you raised about corporations was unique because we

sawning saying, look, this is dangerous. what cou like childhood vaccines and forum i don't believe in childhood vaccines either, yep remove them from the marketplace. or people who think didn't exist and think that it's harmful for people to could also forum shop in order to remove that from the pharmaceutical drugmaker issued their concerns and there was an intervention by the r of mifepristone in this case. elizabeth: i think it's important to note. litigation doesn'ty appear. there are organizations who are litigation. one thing that we see in the mifepristone case, but lots ofministrative law challenges is the merger anti-regulatory forces could say christian nationalist groups like allianceefending freedom, liberty institute the beckett fund solved in the mifepristone case. they are also involved in challenges broug by the states

of florida and texas against nondiscrimination rules under the a.c.a. they in challenges to the preventive services combining anti- administrative agency arguments with religious freedom arguments and putting a gloss on the that's designed to prevail in the minds of many judges who areted by president trump. many of whom are christian nationalists and very much motivated by creatinghrisan n through the courts. michelle: it's important to reproductive health and rights, just where has been. if one were to follow what one would hear from what's lifted up in culture and society you might v. wade was a close decision. and through happens to be 50 years of just real struggle around these issues. setting is important. roe v. wade was 1973 decision and it was 7-2. it wasn't close.

five of those seven justices were republican appointed. the justice, justice blackmon, who placed on the court by richard nixon. prescottfather of george h.w. bush, was treasurer of planned again to just give a sense where the court is now have been long-standing norms within these spaces, the longer standing norms are very different have seen in just these last few years. before we move full bore into some of theroductive rights. i want to bring in some of the juri significant effect on health. i want to sort of a would bow around the administrative side.eral public the many different that theisnvolved. there is rulemaking where you have in essence the extension of a statute. but ther also subregulatory guidance. then there decisions to approve or disapprove a particular drug. administrative a apparatus has many different ways of making a decision.

and the image of the court having the aho to second-guess every dimension of that, along al which the government functions -- michelle: keeping the court busy.e to understand that's the intent. part of the goal defang the administrative state and say to a constrained powers of government because the moment you create the opportunity to everything, it is literally throwing sand in the erin: it of power to the court. it's a zero sum game. power in the three branches flows there one to the other. all of these declowing to the court. al kwra*pb: perfect place to say that we heard that the dobbs decision was not about the cou taking authority. it was giving it back to the people of the state. don' that? michelle: you talked about race. one thing tonk tbout with

the administrative state is that it has an effect of ptein us, because of the privilege that we have, we can make our way to greener sites where the water is clean. we can make clean. we can have the privilege of has become a socioeconomic issue. people intergenerationally, they have some people can opt t .. state can protect us all but those racially, etc. it's an administrative state that s clean and healthy life that your children be able to drink clean water. your children, too deserve to breathe fresh air.ldren, too deserve the opportunity to be able parks and enjoy parks. and let us have been legal battles on thos issues

because for some people within our soci it and we think a civil rights movement was rosa parks refusing to surrender a seat and that wast. but if we really pay attention to the jim crow country, in many ways our b spared from knowing the hundreds of included black people could not walk in parks, that black could not swim in pools, including those funded throughents' taxpayer dollars. so here i would just note molly murray and her book of raced states and played a pivotal role in brown v. board of education and her book of races es those hundreds of thousands of race-based laws like that. ate has been through movements that were t if you defang the administrative state, primary tool for all of its laws, and there are many, that the country ills.

but let's get to the constitution that's so simple and easy. i'd just like to transition to what we're seeing in terms ofng the jurisprudence at the court level about key issues that affect health. liz? elizabeth: a case wehe supreme court that gives lie that the supreme court is out of the the medication abortion pill decision. they have another case pending on the issue of emergency medicalmend labor act. and the degree to which federal state law. now it is. that's a constitutional s right there federal law wins. that should be the end of it don't preempt mtala. and that will require abortions in very really serious health threats due tocy complication. but those situations arrive. and in a states there are bans that are so narrow they only to save a person's life.

so a c teed up involving abortion ban and should be a very easy case is apparently struggles. and there might be a way through but ihink most people anticipate the federal government is going lose the mtala case to the detrime of pregnant people in states with abortion bans but with realtore pregnant people across the country. everybody. this emergency labor act in law labor a intended decades ago passed by congress was to intend all americans would be able to be twere traveling not in their home states some place and they had they could go to a hospital and not be turned away. thatas a racial legacy in the united states. but you could an this came about in a time in there were poor women being sent away while in labor, while in crisis beings what was

callumome road, ambulances coming in with this woman in labor and is her insurance? she doesn't have insurance, the we can't treat her, send her away. and this was mbers of congress saw this as being something that wasegregious, that no woman because of her poverty should be sent away w is in labor. her condition should be stabilized deliver ber if she's in a miscarriage crisis, and we move on.ing that helps all americans because it wasn't limited to wom in labor. but in the wake of dobbs, what we've heard are the horrific cases from across the women bleeding multiple days, going into sepsis, their doctors with the removal -- their doctors being civil , fines up to $100 in texas, 90 years of incarceration carolina, in louisiana, the threat death penalty not passed but cana, about 20 lawmakers signed the bill for the death penalty of doctors perform abortions. anyway, these kinds of threats

making i doctors to figure out, well when can i ieed to be? how many days does she need to and in some cases they've not intervened when the miscarriage is there. govnment, the president said look, my agenciest what we can do about this, mtala should apply. hospital in she should get the services she needs. an for abortion and she should be able to get that in ord health, save her life. idaho challenged that and o state abortion ban trumps our federal law to protect her healtd the supreme court decided to take this up even though the ninth circuit was alan: this raises the of several preemption which constitutional doctrine that the federal law is supreme andw in this area not aut preemion. elizabeth: there's aon.

we've been acting which is a law though the supreme court is the only court. it is not. lower courts. there are state are lawsuits idaho wyoming -- michele: and arizona. elizabeth: and t brought under state constitutions which have the merit of being much c than our constitution at the federal level so there are rights to privacy obvious explicitly in these. and bd in a number of states during the time of the passage of the care act, a number of state legislatures dominated republicans motivated their cons medical freedom and rights of health care choice to the constitution those are anti-mandatesis no against abortion

bans because if you have a right to direct medical care, that would include decisions about your r michele: the backdrop for ma be scary, often as if the wheels have come offlabama many people took note when very recently the alabama supreme court said that embryos have constitutional rights and the state legislature shortly thereafter went to work to create a law that wouldotect in vitro fertilization and assisted reproductive some of these things could have been predicted eight years ago in these movements when the claim is t the same constitutional right as pregnant women. in alabama the supreme court there thought and ruled in arizona the supreme court there recently upheld an abortion ban dating by 1864 at aven a state and which slavery was still lawful in the that the state legislature actually, it

already instituted a 15-week abortion ban. so part of what we're seeing, too, is the furtherance oftheory a methodology, let us say, called originalism that spent more time leaning in to or claimingning in to. it's worth noting that the originalists. so george washington thomas jefferson, and very clear about our constituti is living and evolving, that that would be it, that that they were in in the 1700's and 1,800s would not be the decades and centuries onward but the originalism taken up just in recent decades not very old at scalia was one of the key proponents of this we ne to reach back in history and reaching back in history is to help us better be informed about the way in which be shaped going forward. alan: i'm soon and i hope you're thinking of your questions. but before we do that, i wan one last issue i know we

co at a health conference, there is a lot of discussion about equity to achieve equitable health for everyone in the country. and yet there's a lot ofe right now that's affects the health care institutions and government prthat they think could help achieve that. it would also, of think the reproductive health cases don't element. but even setting that aside there's a direct on anything that is -- that hav certain characteristics associated with trying to achieve equity. can we talk about that? michele: let's. i don't think we have to p space but for purposes you're talking about which is reallyithin the space. and i think that great space to tease this out. it's a casee state of mississippi. my maternal grandmother was mississippi. mississippi was a state that had laws if you were a black you could not park. you could not play billiards. in mississippi, if you wanted to vote, you had guess how many

jellybeans in a jar? how many besub soap. recite the state's constitution. in 1865, congress ratified the 13th amendment which slavery in the united states. in 2013 mississippi got to it. that is the state thatrought us the dobbs case that overturned roe v. wade? think the past does not i today, then we're woefully mistaken. was actually forestalled by a judge who issued a district court opinion court opinion it was really one of the most profound district courte ever read. carlton reeves, closing my eyes to think carlton reeves who is from the american south. his opinion, at time mississippi was making the claim it was legislating in this space in order to protect women. in his district court justice reeves

said i call you on this, mississippi you say you want abortion bans to how is it you have the highesttality in the country or maternal morbidity in the ofla who -- 80% of black women succumb to cardiac maternal mortality in the state. then he went on to talkd women being denied sitting on juries. the long women the opportunity to open upin their own names. mississippi, how is this you protecting women's interest and protecting women's health. you actually never r that. and it was that stay on the law that lastedntil the supreme court took up the opinion stay, and overturned roe v. wade. like to bring up the attacks we'retransgender people and their access to health care. i think this moment the constitutional doctrine might think of this as animus which is

the tip of the spear of equal protection.8 states in the last three years have implemented bans on care. for minors and some of them increasingly for adults in some meaningful ways. these are really attacks on the most vulnerable people, on people most of us don't know in an area w there's not a lot with really nasty statements about these individuals and an of medical standards of care for the treatment minors who are struggling withly taking what was the abortion playbook and other areas and targeting still more vulnera. alan: ok. we could keep going but want to we bring in topics of interest to you all. there are people withhones, i believe, and i would ask that when they come tell us who you are and you keep yourion relatively short. i see someone right here. >> bob ratner from wa

you haven't mentioned anything about the com stock act and the consequences tha that. an 1873 law. anthony com stock was headeral of our postal service. prohibits that which is lewd and lascivious being transported in mail and also includes the ban on contraception and abortion were they transferred through the mail. in the the mifepristone case,oc the justice disnot mention it in the mifepri could be interpreted as some signaling that was taking place. comstock is a fedel a federal law that's been relatively dormant dormant since the griswold v. predated roe v. wade, legalizing contraception for people isenstat and beard after that

for single individuals. it's pe an argument could be made. it's certainly being thought of by the justices, perhaps, some ustices, and others, that if one wants the in the mail distribution of to revitalize in order to do so. but comstock raises another issue that reallyly 1873 which tells us something. abortion and contraception was not illegal at the foundationing the pilgrims practiced contraception and in roe v. wade justice blackmon talks about that. in tiny stone's throw after slavery is over. ban, 1864 right before slavery comstock, 1873, are all part of a movement that can be read about that were realhe kind of fear of replacement. if you stop contraception abortion, that means that white women will have babies can forestall the browning of the united through the freedom that black

people have gained. perhap thank for you that question. alan: heont. >> this isul nice to meet you all. thank you. i've question about where is the separation of church and state and w from that aspect because it seems like this is so blatantly abusing that, and i don't understand why it's not come up more? erin: law and religion is my the supreme court has essentially read the of the constitution is the answer there, and in a series of very recent decisions the court has held that states money from religious institutions if they provide them to nonreligious in this is a total abandonment of any separation of church and state. that the anti-establishment argument against abortion bans public mind because i think most people recognize that passing a that says,

as a matter of law that l certain whether that is the fertilization of the egg or a fetal heartbeat, it reflects some sort of theology and some religious ideology. there are state law challenges under state establishment clauses in a handful of states including in mi multidenominational group. there's also a challeng now the indiana supreme court where a group of mostly challenged the state abortion freedom restoration act and so far have won at trial and court of appeals but pending at the indiana supreme court now where they would receive a exemption in order to receive abortion consistent with their re they're operating under a system th inherently religious in a certain christian vein. michele: even before the dobbs decision, two other judges were making statements that others were weaponizingst space giving a sort of defere scale to first ame

while other constitutional rights were being through the even before the dobbs decision, there was a case, mifla v. becerra where thetatef ca of study decided crisis pregn which almost all of them are religiously based, california determined through years of study that information being presented in the state of california by the crisis that were located there and they passed two called the fact act, that basically were notice requirements and they're everywhere. we could probably go out of here and see a n on a wall that's requireed. california said we'll address two notice requirements. one, you must identify whether you're there since people are walking around with lab coats could make a womaning you're a doctor when you're really not.post whether you're medically licensed. and the sa provides reproductive health care services for low incom so if you can't afford it california will help you with your contraception abortion,

other things, post those things. a split decision before the supreme court before dobbs they lost in an thomas that said look, if california wants toicate to poor women they can put it on billboards. and that decision, then huh justice kagan saying ok, this has been a weaponization of the first amendment here. al a: i will note alan: i will had annals at stanford