WASHINGTON, DC – JUNE 24: An abortion rights advocate participates in a protest outside of the U.S. Supreme Court Building on June 24, 2024 in Washington, DC. (Photo by Anna Moneymaker/Getty Images)

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It seems the most significant reproductive rights lawsuit in front of the Supreme Court during the past session—arguably, the most crucial since the annulment of Roe v. Wade—wasn’t the religious right’s assault on the abortion medication mifepristone, or the controversy over whether the federal Emergency Medical Treatment and Labor Act compels hospitals to offer emergency abortions in regions with stringent bans. It was a dispute concerning who should fund the supervision of commercial fishing vessels to prevent the depletion of the herring population along the Atlantic coast.

Advocates for reproductive health and gender equality are now starting to comprehend the extensive implications of the verdict in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, where the conservative supermajority in the court overturned a crucial 40-year-old element of US regulatory law called “Chevron deference.” In doing so, the judges significantly restricted the authority of federal agencies to establish regulations on various aspects such as financial markets, industrial pollution, drug pricing, and workplace safety. 

As well as abortion. Birth control. Transgender rights. Expectant mothers’ rights. 

“The importance of the Loper Bright and Relentless ruling” on reproductive and gender issues, as well as federal policy in a broader sense, is challenging to exaggerate,” states Shaina Goodman, reproductive health and rights director at the National Partnership for Women and Families. “It possesses profound and extensive ramifications that will unfold in the upcoming years.” This is because numerous critical regulations safeguarding or expanding reproductive and gender rights are outcomes of federal agencies interpreting laws enacted by Congress.

Undoubtedly, groups opposed to abortion were content with their newfound ability to disturb how federal laws are crafted and enforced. Eric Rassbach, vice president and senior counsel at the Becket Fund for Religious Liberty, a prominent legal firm representing religious conservatives, labeled Loper Bright as “a groundbreaking verdict” for groups against abortion and birth control, like nuns who’ve been battling the Affordable Care Act’s contraceptive mandate for a decade. He predicted that the verdict “would probably spell the end” for numerous things, including new Biden administration regulations interpreting the Pregnant Workers Fairness Act to involve workplace accommodations for individuals undergoing abortions. 

“Henceforth,” expressed Justice Ketanji Brown Jackson, “administrative agencies can face continuous litigation over each final decision they make… Even the most firmly established agency regulations can be put up for review.” 

Then, the Supreme Court provided another potent jolt to the foundations of American law. On the final day of the term, the same group of very conservative justices magnified the probable effects of Loper Bright by introducing a new, broad range of challenges to regulations long after their implementation. In Corner Post v. Board of Governors of the Federal Reserve System, a case concerning a North Dakota truck stop and debit card transaction fees, the court granted litigants almost unrestricted time to file lawsuits against federal rules they allege to cause them harm, instead of the six-year statute of limitations that was previously in place.

If the implications for reproductive rights weren’t immediately evident, Justice Ketanji Brown Jackson highlighted the stakes clearly in a strong disagreement. She cited attempts by anti-abortion physicians to annul the Food and Drug Administration’s oversight of mifepristone—a case the judges dismissed in June on the narrow basis that the doctors lacked the right to sue. Now, Jackson implied, the FDA’s approval of mifepristone in 2000 would be “up for grabs.” “Henceforth,” she remarked, “administrative agencies can face perpetual litigation over each final decision they make… Even the most well-settled agency regulations can be put up for review.” 

When viewed collectively, the Loper Brightand Corner Post rulings cast a fresh light on the justices’ approach this session to essentially defer themifepristone lawsuit and the federal-against-state battle concerning EMTALA. Both of these cases focused on federal regulations that are likely to face challenges under the court’s new rationale—along with regulations governing various other aspects of health policy for many years to come, the think tank KFF cautions.

The impact is expected to be particularly noticeable in ideologically contentious matters like reproductive health, gender equality, and climate change, as predicted by Georgetown Law professor Lisa Heinzerling. “These are fields where, in my opinion, [courts are] approaching any protective regulation with some degree of hostility,” she remarks. Well-established federal regulations on topics such as contraception and urgent contraception may prove to be especially attractive targets for conservatives under Corner Post, as per legal experts.

The initial effects are starting to emerge in cases involving transgender matters. Shortly after the conclusion of the Supreme Court term, federal judges in Mississippi, Texas and Florida referenced Loper Bright in their decision to hinder the Biden administration from implementing a new rule that interpreted the Affordable Care Act to prohibit discrimination in healthcare based on gender identity. Sarah Parshall Perry, senior legal fellow at the Heritage Foundation, highlighted, “Any automatic deference that would have been given to the Biden administration has now been entirely eliminated,” as reported by the Washington Examiner.

As per my Politics associates, this term’s Supreme Court decisions were the outcome of a long-term effort by conservative factions to restrict the regulatory authority of the federal government and disassemble what they label as the “administrative state.” Rejection of the Supreme Court’s 1984 ruling in Chevron U.S.A. v. Natural Resources Defense Council was central to this aspiration. In Chevron, the justices determined that when a federal statute lacked clarity on a specific matter, administrative agencies with particular expertise, like the FDA or the Environmental Protection Agency, possessed broad discretion to formulate regulations interpreting and enforcing the law—and if those regulations were considered reasonable, lower courts had to defer to them. The rationale was straightforward: Congress couldn’t conceivably address every minute detail of every industry to which a law might pertain. Hence, it was logical for agencies to establish the regulations and for judges to mostly concur.

Conservatives started asserting that courts shouldn’t be obligated to defer to the expertise of federal agencies to determine the merit of a regulation; rather, judges should be able to exercise their discretion.

Initially, Chevron was viewed as a win for conservatives, emerging as one of the most-cited precedents in American jurisprudence. However, when the Obama administration began leveraging Chevron to advance its policy agenda, opinions shifted. Conservatives began contending in legal publications and amicus briefs that courts shouldn’t have to defer to the expertise of federal agencies to uphold a regulation; instead, judges should have the liberty to exercise their own judgment. In his majority opinion in Loper Bright, Chief Justice John Roberts concurred with these assertions, asserting that agencies “lack a distinct competence” to resolve ambiguities in statutes. In contrast, he emphasized that “courts do.”

The Corner Post case received relatively less attention during its progression through the courts, possibly because its proposition—essentially abolishing the time limit to challenge federal regulations—appeared extremely implausible. Undoubtedly, its potential repercussions on reproductive issues stayed below the radar. As per the official transcript, the terms “abortion,” “mifepristone,” and “gender” never surfaced during oral deliberations this past spring.

Nonetheless, numerous indications pointed to the keen interest of anti-abortion groups in the outcomes of both cases. The law firm contesting the federal regulations in Corner Post coincidentally serves as the same legal entity representing the primary Idaho legislator suing the Biden administration regarding EMTALA and emergency abortion services. In Loper Bright, an assortment of Christian enterprises, represented by the influential religious law practice Alliance Defending Freedom, submitted an amicus brief enlisting various issues that conservative groups are anticipated to pursue now that Chevron has been overturned, which include Biden administration regulations on Title X family planning funds, the dispatch of abortion pills, pharmacy prerequisites for stocking contraceptives, and the health information privacy law recognized as HIPAA. (“Unelected federal bureaucrats frequently disregard the fundamental liberties of Americans by imposing personal political agendas that neglect scientific evidence and bypass the authorizations given by Congress,” ADF senior counsel Julie Marie Blake conveyed via email, acknowledging that with the recent SCOTUS ruling, courts are now “acknowledging their responsibility to interpret these laws as stipulated.”)

On the contrary, with the primary focus on the potentially impactful mifepristone and EMTALA cases, organizations advocating reproductive and LGBTQ rights neglected to submit amicus briefs in either Loper Bright or Corner Post. Now, they are hastening to discern the subsequent steps. As several forthcoming confrontations are anticipated within the exceedingly specialized context of administrative law, with courts slowly eroding regulations one seemingly minor ruling at a time, reproductive rights groups might encounter difficulties in inciting the level of commitment among their supporters that has catapulted the Dobbs verdict to become one of the pivotal issues of the 2024 election cycle.

This appears paradoxical, as Loper Bright and Corner Post are likely to heighten the ideological disputes surrounding abortion and reproductive rights. “We’re disrupting 40 years of administrative conventions in a manner that will significantly politicize many of these matters,” cautions Skye Perryman, CEO and president of Democracy Forward, a national legal entity concentrating on democracy affairs and social equity. “With Chevron deference no longer in effect, judges who might be regarded as conservative previously upholding regulations introduced by liberal administrations are no longer certain. Similarly, liberal-leaning judges supporting regulations from conservative administrations may be challenged. Chevron contributed significantly to depoliticizing many of these matters.”

Another paradox emerges: Those legal battles are anticipated to become increasingly frequent and intense if Joe Biden secures reelection, as noted by abortion historian Mary Ziegler, a law professor at the University of California, Davis. “Certainly, Corner Post simplifies the victory path for conservative advocacy groups, even in scenarios where the statute of limitations would have otherwise expired,” she suggests. Nevertheless, with Trump officials directing the administrative framework, “conservatives might not be as keen to advocate for the courts over agencies to possess supremacy. If you have a Trump administration executing your objectives, there might be a reduced necessity for such litigations.”

For instance, regarding the Chevron deference: Initially, in 1984, the case represented a triumph for the deregulation-focused Reagan administration. Overturning that precedent was part of “a strategy conceived by conservatives during a period when federal agencies were mainly under Democratic control,” she explains.

There might come a time when progressive legislators and courts leverage Loper Bright to their advantage, Ziegler indicates. “It’s reminiscent of presidential immunity,” she illustrates. “Evidently, if Trump vows to prosecute Biden, perhaps that appears different to you. [Regulations and opinions] structured with consideration for the current scenario may read differently with a change in the White House.”