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>> it's our first panel ever devoted entirely to the courts d thdon't think it's an overstatement to say that the role of been greater in health policy. and that'so explore today. colle differences and been involved. when the fact passed, we -- when the act -- affordable care fact afd, we waited see if it would be success t*ul to the supreme court. the entire largest health policy change we made in decades,as uncertain pending the decision of nine people. so now w■e are a decade later ad it seems to me that the role of

courts has just grown even further. much more⌟le about these topics than i are our three panelists. i them. to my far left is erin, who was on a panel with me in this same room an hour ago. health, and society at georgia stateiversito the brown school of public health. elizabeth next to her is a professor of law at the texas sc michelle to my immediate left is professor of constitutionaw health policy at the georgetown university law i thought we might start with something that may fly li bit below the radar given how much people read about and hear about at the courts. that's the relationship between the courts and administrative law. a topic that may seem mundane butuential.

i'm going to start with erin to set the staget that means and what's at stake right now. erin: when we think about what the relationship of thenment, te courts being one, the administrative -- presidential, executive branch with all the agencies, including h.h.s., c.m.s., f.d.a. and every other agentcy, and then the re. so what administrative law focuses on what is that bal abiy of the court to second-guess orf the executive branch agencies. before the court didn't come out yet, maybe nexteek, there is a challenge to the long held docte heard of. chevron is a case 1980's that basically created a rule that a statute and delegates authority to an executive brancl

the details but authorizes thepd regulate and implement the law,y defer to the agencies' interpretations of the statutes, they are the experts in, they have been created todminister. that was the concept of chevron deference. that's been law decades. the court has expressed the conf chevron deference and the■e administrative state overall. so we have before the courthi oy testing the question of whether the chevroneference should be overturned and relace with something let the court decide for the scope of agency authorities are and second-guess interpretations of their own constitutes sta*uts andorities s creating some definite■q -- some

concerns among those who study administrative law. the reason it would create a concern in the health care space is■x■■■ that there are so many y determinations that are verye dy the agency through regulation. if thevr overturned, which is largely expected to be done or c back, t means is every agency rule, think medicare, think f.d.a. decisions about the safety and efficacy of a new drug or decisions that are made by expert agencies according to

frameworks they have come up with, that these would all be nd-guessing by the court and litigation by parties and itr reason to

challenge them and say, we don't interpretation. and frankly the court shouldn't defer to t agency there. not because they are the ones delegated by congrs. that is the main concern the expertise of the agencies and up for grabs and subject to litigation. if the cou will. alan: i hope we can go deeper o. the case you described is not a health ce. did not arise outs of the health issue.e health implications are of a d without chevron. elizabeth: if we thi this historically, how we get a food andruion, it's not something that the framers, founders thought of. se pilgrims brought michelle: what does it come out of? a crafty, thoughtful journalist

writer who is spending time on a century ago and looking at packin■ plants. what he's finding in the horrific, so deeply horrific, what's going into e sausages, it's rat meat. soiled spoiled stuff. it's moldy. horrible. thek "the jungle" comes out of that. this is what americans are ti who is going to regulate this stuff? the slop that he talksbout it's actually from writing about the slop. it's writing abouthe infections. it's writing about the horrific conditions that those meatpacking workers are living we can defer that conversation for another panel, what ■tmeatpacking looks like in the united states today. but this is what brings us a food drug administration.

administration to overseas, get some oversight, to what it is that people eating. then what people are drinking. then the drugs that people using. are these things safe? is the part of government to make sure that these industries put things in the marketplace that won't kill people. elizabeth: i think broader phenomenon in terms of undermining expertise. agenciese benefit rather than let congress paragraphs through which -- pars through what drugs are safe and an agency that has the expertise. the result of undermining chevron, undermining administrative agency is to involve courts in second-guessing these determinations. just an opinion issued this week, sometime the supreme court

confuses me, on b have heard dus conference about gun vio there you had an alcohol, tobacco, and firearms bump stoct within the scope of the statute and were prohibited as machine guns. then you have justices. supreme court come a-- of the supreme court come along and some decide they disagree. they are engedhese decisions where they are really rsin just as thomas put pictures in his -- ps opinion because he wanted to try opinion a bump stock is notine . under federal law. we areee of medical expertise, scientific expertisf professionalism within agencies. what i found interesting is a hy

nervous about as well nott on expertise but uncertainty and timing. timip÷d comment on the role of the courts in inserting themselves and how that would affect the processes by which some of these desi made. >> it's believed if treupbaway d introduce a lot more uncertainty for public. erin: the reason is the long process by which ang goes throut process used to mean that as long as the agency followed the procedures and did its rulemaking, thecause of chevron deference, any permissible or reasonable construction of the statute or■g authority would stand. what this does isuse of a second-guessing, the opportunite -- somehow your industry is penalized or yoo ity

rules, not just the new ones, but pa for grabs. that means they can be challenged in front of the cour ask these justices do you agree this was the right regulation? this is the rht reading of the statute? that means that the certainty that we livend operate the health system or all those rules and decisions they make pursuant to them are no be relitigated over andbt over. michelle: these are areas where there been significant deference for decades leading on to a crywe have had these agencies. the idea being that these are in deeply vested, learned individuals that are hired into tse it's true that sometimes there is some political pt coming from industry who then become appointedies. that said, the bulk of those any

are career, lifetimer types duals who work within these agencies, learned, educ p the i's, cross the t's, and then review the rerds th a from these various organizations, thg then about the second-guessing, i the time that we are in. it's not as if we have oh, this is just been a part of how ind made. that for the last seven decades, six decades, this is just what the supreme court does. that's not the■i think that's oe critical take aways in this conversation that this is a kind of new thing that's happening. on that justice thomas and guns, two years ago reported -- released by the courtg: the day before the dobbs decision. there, too, justice thomas as the author of that opinion did something that was different

there, too. in that was a prologue that was necessary.■ ft cases with prologues. it was one that order to explain why the court was going to strike do he said the prologue was necessy to show how important guns were to black male bodily autonomy. he spent five paragraphs. this is the day before dobbs that takes away. the day before he's talking about black male bodily autonom. he spends five paragraphsís exaining why black men need their guns totect the bodies. the next day in dobbs he issues a concurrence. there is no talking about women's bodily autonomy. or black women's he pivots inside these decisions putting in gifs or certain narratives the kwra*pb: i knew t take us long to move into

as we planned and as is approprie. transition by talking about the administrative authority and some of the■k reproductive healh issues in front of us. who wants to begin that evolution? elizabeth: supreme court keeps medication abortion on the market. of. this was a case thatome real he. the case if.olved, this goes to erin's point about unsettling regulations, the f.d.a. approved mifepristone, on two drugs used in medication abortion in you haves who came forward and contested that approval, and contested

otherrom 2016 and from 202. anthey went forward in the courts and prevailed. not fully. but mostly. up to the fifth circuit court of appeals. michelle: it's hhly unusual, we can see how highly unusual it is by this court saying these individuals don't have standing. it's a cas with what we could call forumin this casef litigantsme themselves as doctors who would be placed in an position to provide health care services to had abortions but who are in an emergency lot to p over in terms of hurdles withvw that. it raises the question first of all, were they all really

doctors? no. they weren't. one had a master's degreetheolo. another a dentist. certainly those individuals would not have admitting privileges, any hospital. so that was a first. sendhing is that there is a judge, matthew, who is amarillo, texas. he's the lone sitting judge there. they set corporation there and then filed this that judge who was very open in ter of his own views with regard to reproductive health issues. he about how he does not support abortion. he thinks that this is -- is bad. so the case was brought before judge kazmarek. to were seeking to do is remove mifepristone court said, we are going to leave these matters to sta■s. mifeprim the market, it would then be not

just states that banned abortion, but it would mean it was no longer8 available, including in those states where abortion would be lawful. in thd the f.d.a. had rushed to approvg mifepristone even though in the year it was approved the.d.a. spent three times the length of time before giving itl$ the rubr stamp than other drugs released that year. theyaid th i a drug that's very unsafe and harms people. mifepristone is safer than tylenol and aspirin, right? they actually were wanted from e kazmarek.his drug should be removed. and it made its way to the f the supreme court. to the point that you raised abou intervening, this case was unique because we saw corporations intervening what could happen if someone doesn't like childhoodci

and forum shops for a judge that says i don't believe inildhood , remove them from the maplac or people who think that covid didn't exist and think that it's harmful forse covid drugs who could also forum shop in order to remove that from the marketplace. pharmaceutical drugmakers came together, issued their concerns, andhe intervention by the maker of mifepristone in this case.!9 elizabeth: i think it's important to note. just magically appear. there are organizations who strategically filing litigation. one thing that we see in other administrative law challenges, is th merger of anti-regulatory forces and conservative christian, one could say christian nationalist ps defending freedom, liberty institute, thee

involved in the mifepristone case. they are also involved by the ss of florida and t against nondiscrimination rules under th a.c.a. they are involved in challenges to the prevente services mandate. and here they are combining- ady arguments with religious freedom arguments who the plaintiffs are in a way that's designed in the minds of many judges who are appointed by president trump. many of whom are christian nationalists, including matthew, and very much motivated by creating a christian nation through the courts. michelle: important to note, to talk about reproductive health the court has been. if one were to follow what one

would hear from what's lifted up in culture and society, think ts a close decision. and that what we are living through happens to be 50 years of just these issues. so that level setting is important. wade was 1973 decision and it was 7-2.close. five of those seven justices the justice, justice blackmon, who wrote the opinion, was placed on the court by richard nixon. prescott bush, who was the father of george h.w. bsurer of. and again to just give is now vs what have been long-standis wite longer standing norms than whatn in just these last few years. alan: before we move fulles amoe

rights. i want to bring inom jurisprudence around race which has a significant effect on health. i want to sort of tie a little bit of a wnistrative side. for those who -- for the general public, ways that the administrative agencies were involved. there is rulemaking where you have in essence t is also subrey guidance. then there are specific decisions to approve or sa particular drug. there's -- the administrative a apparatus has many different ways of making a decision. and the image of theuthority to second-guess every the topics in which the governmen functions -- michelle: keeping the court

busy. alan: we have to understand that's the intent. pa of the goal is to defang the administrative we go back to a constrained powers moment you creat second-guess everything, it is literally thng works. erin: it is aggrandizement of power to the court. power in the three branches flows there one to the other. dr is flowing to the court. al kwra*pb: perfectall heard ths decision was not taking authority. it was giving it back to the peopleacf the state. don't you remember reading that? michelle: you talked about one thing to think about with the administrative state is that it has an protecting

us all. for some of us, because oe thats where the water is clean. our ws clean. we can have the privilege of trees. issue.has become a socioeconomic for some other peoplehey have been striving for what some people opt themselves into. people opt themselves into. the administrative state can protect us all but those most vulnerable economically and racially, etc., it's an tive state that says you two deserve to be able to live a clean andea your childree to be able to drink clean war.yo

your children, too, deserve the opportunity o walk into parks and enjoy parks. thee have been on those very issues, those very issues because for some people within our society, we don't talk about it and we think a civil rht■.■÷s movement was about rosa parks refusing to surrender a it. but if we really pay attention to the laws that existed in this country, in many ways our spared from the hundreds of thousands of them that also included black people coul parkk children could not swim in pools, including those fded through their parents' taxpayer dollars. so here i note molly murray laws in the united states and role id

of education andk of race laws in the united states identifies those hundreds of thousands of re-ba like that. alan: i'm just going to say in a much shorter way, most of the growth of the administrative state has been through movements that were more to the left. if you defang the administrativy tool for all of its laws, and there are many, that the country tried to use to remedy ills. but let's g■p to the constitution that's so simple and easy. i'd just like to transiti what we're seeing in terms of shifting the jurisprudence at the court level about key liz? elizabeth: a case we're waiting

for from the supreme court that gives lie that the supreme cour. they had the medicationion pill decision. they have another case pending on the issue of treatment and l. and the degree to which law is supreme over state law. now it is. that's a constitutional provision that says right there federal law wins. that should behe e of it that abortion bans don't preempt mtala. and that will require abortions in very narrow situations where someone is facing reallyhreats y complication. but those situations number of e are bans that are so narrowans o save a person's life. so is teed up■e involving the idaho abortion ban and should be a very easy case is apparently causing the supreme

court some struggles. and there but i think most people anticipate the federal to lose f pregnant people in states with abortion bans t with real dang tore pregnant people across the country. michele: to everybody. this emergency labor it says in act, it was intended decades ago when law was passed by congress was to intend all americans would be able to be treated if they were traveling not in their h some pd an emergency condition, they could go to a hospital and not . that, too, has a racial legacyy. no one can send you away. and this came about in a time in which there were poor women

being sent ay■ while in la!sbor, while in crisis beings what wome side of the road, ambulances coming in with this woman in labor and about to deliver, where is her insurance? sh doesn't have insurance, the hospital, sorry, we can't treat her, sen$he and this was happening. members of congress saw this as being someg egregious, that no woman because of her poverty shoul while she . her condition should bey, help her if she's in a miscarriage crisis, and we move on. it's been something that helps all americans because it wasn't limited to women who happened to be in labor. but in the wakedobbs, what we've heard are the horrific cases from across country, women bleeding multiple days, going into sepsis, doctors being threatened with the removal -- theirreatened with ct

, fines up to $100 in te 90 ars texas, in south caroln louisiana, the threat of the death penalty not passed but the threat among lawmakers and south carolina, about 20 lawmakers signed the bill for th that woud perform abortions. anyway, these it then very difft for doctors to figure out, well, whenan i intervene? how blue does she need to be? how many ddo need to be bleeding? and in some cases they've not inte when the miscarriage is there. and so the federal government, the president saides, figure oun do about this, services she needs. hospital ine and it's the euphemism for

abortion and she should be ablet her health, save her life. idah challenged that and said, you know, our state abortion bao protect her health and the supreme court though scheduledr it. alan: thisi■ raises the underlyg issue as one of several preemption which is a constitutional doctrine that the federa law is supreme and there's a law in this area going on not about preemption. lot gog on. we've been acting, professor prh the supreme court is the only court. it is not. there are many lower courts. the lawsuits and in utah, idaho

wyoming -- mielnd they're brought under state constitutions which have the merite specific than federal creeky old growth constitution at the federal level so there are rights toivan a number of states during the time of t affordable care act, a number of state legislatures d by republicans motivated their to f medical freedom and rights of choice to theconstitution thosw being mobilized against abortiot

to direct medical care, that would include decisions about your reproductive health. michele: people happen to be scary, often as if the wheels he come off the speeding car. in alabama, many people took whe alabama supreme court said that embryos have constitutional rights and the state legislature shortly thereafter went to work to create a law that■ protect in vitro fertilization and assisted technologies in that state. some of these things could have been predicted eight y ago, i wrote about what happens in these movements w is that embryos haveheight as pt women. in alabama, the srehought and rt they do. in arizona,e very recently uphed

abortion ban dating by 1864 at a time arizona was not even a state andhich slary was still lawful in the united states. and despite the fact that the stateis actually, it already instituted a 15-week abortion ban. so part of what we're seeing, too, is the a theory, a methodology, let us te court has spent more time leaning in to or leaning in to. it's worth nin the originalists were not originalists. so george washington, thomas and others were very, very clear about constitution should be one that is living and evolving, that that would be the world that they were in in 1700's and 1,800s would not b come decades and centuries onward b that was

taken up just in recent decades, no old at all, justice scalia was one of the key of this, this idea that we need to reach back in hi history is going to help us better be informbo way in which law should be shaped going forward. going to turn to you and i hope you're thinking of your qst. but before we do that, i want to tee up one last issue i know we could spend the rest of our time on. at a health conference, there dy and the imperative to achieve equitable in the country. and yet there's a lot legal jurisprudence right now that'sre stitutions and government programs to embrace policies that they think could help it would also, of course, be naive to think the reproductive

heales don't have a racial element. but even setting that aside, atn anything that have certain characteristics associated with tryiak to about? michele: let's. i don't think we have to put aside the reproductive space but for purposes you're talking ich is really about democracy, democracy within the space. and i think that dobbs is actually a great space to tease this a case that comes out of the state ofdmother was from the state of mississippi. mississippi was a state that had laws if you were a bck yy checke park. you could not play billiards.■e. in mississippi, if you wanted to voteyou had to guess, and you were black, guess how many jellybeans a jar? how many bubbles on a bar of soap. in 1865, congress ratified then. 13th amendment which banned

slavery in the united states. and in 2013 mississippi got to it. that is the state that brought us the dobbs case that overturned roe v. wade? it was mississippi. if we somehow think the past■u does not inform where we are today, then we're woefully mi the dobbs decision was■lalled bt opinion it was really one of the z]most profound district court opinions i've ever read. carlton reeves, eyes to think of judge carlton reeves who is from the american south. and in his opinion, at the time mississippi was making the claim it was legislating in this

in his district court opinion, justice reeves said i call you on this, mississippi, you say you wa abortion bans to protect women's health, how is it you have the highest rate of maternal mortality in the country or maternal the country, how is it that 80% of black women who- 80% of black womencu who have maternal mortality in the state. th h about mississippi and women being denied sitting on juries. the long history of mississippi denying women the opportunity to open u bank accounts in their own names, loans in their own names. mississippi, about you protecting women's interest and protecting women's never ree shown that. and it was that stay on the until the supreme court took up the opinion,

listed the stay, and overturned e. erin: i'd like to bring up the attacks we're seeing on transgender people and their access to health care. i■+7t think is a moment the this as animus which is the tip of the spear qu elizabeth: 18 states in the last three years have implemented bans on gender affirming care. for minors, and some ofm increasingly for adults in some meaningful ways. these are really the most vulnerable people, on people most of us don't kno whe. and with really nasty statements about these individuals and a total rejection of medical standards of care for the treatment of minors who are struggling with gender

disforeyeah. and this is actually taking what was the moving it into other areas and e people. toan: ok. make sure we bring in topics of interest to you all. microphones, i believe, and i would ask that when they come to you, you tell us who you are and you keep your question relatively short. i see someone >> bobatr■c from washington, d.c. you haven't mentioned anything about the com stockme from that. michele: com stock is an 1873 law. anthony com stock was head of inspector general of our postal service. the comstock act prohibits thats

from being transported in mail and also includes the ban on ane they transferred through the mail in the oral arguments of the mifepristone comstock was brought up several times though the justice disnot mention it md certainly could be interpreted as some gnaling that was taking place.a federal law and s a federal law that's been dormae v. wade, legalizing isenstat and beard after that for se individuals. it's possible an argument could be made. it's certainly being thought of by the jces, perhaps, some of the justices, and others,

that if one was to stop the in the mail and courier service distribution of■ mifepristone that comstock would be the act to revitdo so. but comstock raises another that really quickly to get at, that's 1873ch abortion and contraception was not illegal at the foundationing of this country. abortion contraception ando÷ in roe v. we .ustice blackmon talks about in 1873, it's a tiny stone's is over. the abortion ban, 1864 right before slavery, comstock, 1873, are all part of a movement that really about the kind of fear of replacement. if you and

you stop abortion, that means that white women will have babies and you can forestall the browning of the united states through the freedom that black people havew%ned. perhaps that's for another conversation. alan: here in the front. julie . nice to meet you all. thank you. i've always had this question about where is the separation of church and battle going to come from t it seems like this is so blatantly abusing that i don't understand why it's not come up more? erin: other hat. the supreme court has essentially read the establishment clause out of the constitution is the answer there, and in a series of

decisions, very recent decisions the court has held that states can't withhold money from religious institutions if they provide them to nonreligious institutions. elizabeth: this is abandonment of any separation of church and state. i do thinking that the anti-establishment argumenry strong in the public mind because i think most peo law that says, as aat law that life begins at a certain fertilization of the egg or a fetal heartbeat, it reflects rey and some religious ideology. there are state challenges under state establishment clauses in a handful of states, by a multidenominational gth ths now the indiana supreme court where a group of mostly jewish women have challenged the state

abon ban under the religious freedom restoration act and so far have won at trial and the court of appeals but pending at the indiana supreme courtfy where they would receive a exemption in order to receive abortion consistent th their own religious beliefs because they're operating under a system that is inherently religious in a michele: evenore the dobbs decision, two other judges were making statements that the first amendment in this space giving n the scale religious protection while other constitutional undermined through the courts strategy and was doing that even before the dobbs decision, there ase, mifla v.e the state of cala after years of pregnancy centerh

almost all of the had determined through years of st there was false information being presented in the state of california by the crisis pregnancy centers that were located there and they passed two laws, these were called the basically were notice requirements and they're everywhere. we could probably see a notice l that's requireed. california said we'll address this by two notice requirements. one, you must identify whet mede since people are walking around with stethoscopes and lab coats could make a womaning you're a ct when you're really not. so you must post whether you're. and the second is that the state of california provides reproductive health care low in. so if you can't afford it, california wilhelp y■pou with your contraception, abortion,

othe■p■?g two things. a split decision before the supreme court written by justice thomas that said look, if california s■" talk and communicate to poor women they can put it on billboards. and that decision, then ok, this has been a weaponization of the first amendment here. al a: i will note note we had as at stanford a case where lower courts threw out covid restrictions and the number one reason for those restrictions being rejected was religious liberty claims so it is very much in play. i think we can f i can't see -- i see someone there if we can get them a microphone.

>> i'm kathy kennedy, maybe the one favorite case for each of you pending or possible that you think advance some of these health care matters? alan: if eyr it, i don't think we're ending on a positive note. erin: i guess violence against women, the rahemi case that just came out i think was a positive ray of hope. alan: say a little more because itt erin: this is the challenge to laws tha would basically regulate the ability foro is suc violence restraining order from being able to own a firearm and everyone was expecting with the sort control rejections of allwing and onward that this would go that it way as well and a out, t

upheld that, that yes, people under domestic violence reóbstrainorders can be regulated and may not necessarily have the right to own a firearm. th ray of hope from this otherwise pretty dreary session. because it's an intersection case that both addresses gun control and as well des and domestic violence is intensified when a woman is pregnant. and in that way, it's actually e coming from the court with one dissent by justice thomas. elizabeth: i'm not giving it to the courts here or to the cases i am encouraged by the fac to be the american people and

particularly progressives are starting to unde of the court and starting to understand that they don't want the power of the courts. and it might seem who sits in texas to lean in our democratic institutions, into our administrative institutions. but in places across the country, and certainly in the administration, you see■

courd to talk about them so much because they don't have soe people are the ones deciding what our health care looks like and what our constitutional democracy should be like.■v michele: i'll start with saying that we're at a time when we're thinng about the ballot initiatives that have taken place where folkcome forward so many of them women saying that theym6 can take democracy into their own hands. and it's important that they do so. kind of arc of freedom that dr. king talked about, well, there's an arc that's silent and that is the onehat in?ó women. we're still on that pathway of a freedom that might be obscured by the fac can point to women lawyers on a stage here, that we couldoint to half the law school classes now happen to be comprised of women. and yet still this is a court that even before dobbs in a series of cases time and time again struck down matters

pay equality and more when st let me say this, at a time in which things can be so dark, it's actually when we can see the lightthe moon and the light of our stars in such clear ways and that, of course, should words, joining me ink:v■v■ñ hil"