Healthcare Cases Test Who Controls Agencies, States, Juries, and Courts

The healthcare cases moving through the Supreme Court are not only disputes about abortion pills, pesticide warnings, conversion therapy, marijuana use, birthright citizenship, or disability services. They are contests over institutional authority: when an agency’s technical judgment controls, when a state may regulate health or safety, when courts may second-guess regulators, when juries may update scientific risk through tort law, and when a president may reshape eligibility for citizenship-linked benefits.

Kannon Shanmugam framed the broader Supreme Court term around executive power and the power of the presidency. The major disputes he identified included President Trump’s tariffs, the president’s power to remove officials exercising executive authority, and the administration’s effort to restrict birthright citizenship. Some questions are specific to Trump, he said, while others have broader significance for the constitutional structure.

Shanmugam predicted that Trump would lose several of the most visible cases. The president had already lost the tariffs case, and Shanmugam expected the administration was likely to lose the birthright-citizenship case and perhaps one removal-power case. If that happens, he argued, commentary about the Court will need to become more nuanced. The prevailing narrative since Justice Amy Coney Barrett joined the Court in 2020 has been that the Court is far more conservative; since the prior year, he said, it has also increasingly been described as broadly aligned with many of Trump’s priorities. A series of losses for Trump would complicate that picture.

Jeffrey Fisher agreed that executive power is the term’s dominant theme, but did not see the conservative bloc as “sliding left.” The narrower shift, in his view, is that the Court initially used procedural maneuvers to avoid direct confrontation with Trump after he returned to office, but this term appeared more willing to clash with him. Fisher added the Chicago National Guard deployment case to the list of decisions in which the Court had ruled against Trump.

That does not make the Court less conservative in its underlying legal project, Fisher said. He described it as still “fundamentally an extremely conservative court,” pointing to Dobbs, the expansion of gun rights, and prohibitions on race consciousness in admissions and voting districts as examples of outcomes aligned with traditional Republican legal goals.

The composition of the Court is unlikely to change soon, according to both panelists. Shanmugam said there had been none of the usual signs of a possible retirement, such as a justice declining to hire law clerks. Justice Thomas had just turned 78, and Thomas and Justice Alito have drawn speculation, but Shanmugam described the Court as relatively young by historical standards and likely to remain intact at least for the next term, if not until the next election. Fisher added that if a justice is healthy and part of a majority making law he believes in, the job is hard to leave both professionally and personally.

That means the same Court likely will continue deciding disputes in which health policy reaches the judiciary as administrative law, federalism, First Amendment doctrine, Second Amendment doctrine, separation of powers, or constitutional citizenship. The immediate subject may be healthcare, but the recurring question is who gets the last word.

The mifepristone litigation sits at the intersection of abortion access and judicial review of drug regulation. Mifepristone is the first pill commonly used in a medication abortion, followed by a second pill that causes a miscarriage. The current dispute is not headed for a merits decision this term, but it has already moved between lower courts and the Supreme Court and could return.

The litigation follows Dobbs, which ended the federal constitutional right to abortion and returned abortion regulation to the states. Dobbs did not make abortion illegal nationwide. Some states may ban it; others may permit it. Fisher noted that Justice Kavanaugh’s concurrence in Dobbs said people could still travel from one state to another to obtain abortion care where it is legal.

The mifepristone case raises what Fisher called the inverse question: what happens when care comes to the patient rather than the patient traveling to care? The Biden administration changed mifepristone prescribing rules so that an in-person visit was no longer required. Margot Sanger-Katz clarified that the FDA decision allowed pills to be mailed without an in-person visit; it did not specifically authorize cross-state mailing. But cross-state mailing has become a major practical pathway.

The first challenge was brought by doctors who did not prescribe mifepristone themselves but objected to the practice. They sued under the Administrative Procedure Act, the federal law that allows courts to set aside agency action that is arbitrary and capricious. The Fifth Circuit agreed with the challengers and invalidated the FDA rule removing the in-person requirement. The Supreme Court later vacated that decision, according to Fisher’s account, because the plaintiffs lacked standing to bring the case.

A new case then came from Louisiana, making similar arguments with a different plaintiff. Louisiana argued that the FDA rule impedes its sovereign interest in enforcing its state abortion ban. A lower court agreed with Louisiana, and the Fifth Circuit stayed the FDA rule while the appeal proceeded. The Supreme Court, acting on its emergency docket, vacated that stay by a 7-to-2 vote, allowing the FDA rule to remain in effect during the litigation.

Shanmugam cautioned against treating that emergency order as a merits decision. He prefers the term “motions docket,” because parties are asking the Supreme Court for temporary relief while the underlying legal dispute proceeds elsewhere. In that setting, the Court weighs not only the merits but also prudential considerations and equities. He said there may be a “thumb on the scales” in favor of the government and the status quo, depending on how the status quo is defined.

If the Fifth Circuit again invalidates the FDA rule, Shanmugam said there is a good chance—but not a certainty—that the Supreme Court grants review. The Trump administration’s FDA is a wild card. Shanmugam said the administration had given some indication that it was considering the substance of the rule. If the FDA changes the rule, that could moot the challenge or at least materially alter the legal landscape.

The case is not a clean measure of the Court’s general abortion views, Shanmugam said, because the legal questions are technical administrative-law issues. But he also said the abortion context plainly colors the justices’ thinking. Justices Alito and Thomas dissented from the Supreme Court’s emergency action, and Shanmugam said their opinions essentially described the FDA rule as an end run around Dobbs, which purported to give states first-instance authority to regulate abortion.

The access stakes are large because the post-Dobbs pattern has not matched expectations. Sanger-Katz said many expected the number of abortions in the United States to decline after Roe was overturned because many states wanted to ban abortion and did ban it. Instead, the total number appears to be growing. She tied that unexpected outcome to two developments related to the FDA rule.

First, abortions have increased in states where abortion remains legal. That is partly because people are traveling there from states with bans, but also because pills can be mailed to people who previously had difficulty reaching clinics because of distance, childcare, transportation, or other barriers. Second, pills have been mailed in contravention of state abortion bans, with doctors in states where abortion is legal prescribing and mailing pills to women in states where abortion is illegal.

That matters because abortion was often difficult to access in some states even before Dobbs, despite being technically legal. Clinics could be scarce, restrictions heavy, and waiting periods or other requirements burdensome. Mail-order pills are, for some patients, more seamless and less expensive.

The pharmaceutical-industry concern is broader than abortion, but the live dispute should be kept precise. The case concerns the FDA’s later prescribing and mailing rules for mifepristone, not simply the original approval of the drug. Still, Fisher said a Supreme Court decision overturning the FDA rule would “definitely” increase litigation because it would give challengers a template: argue that the FDA failed to do sufficient homework or adequately review the evidence.

Fisher did not predict widespread changes in outcomes across FDA-regulated drugs. In the earlier mifepristone Supreme Court litigation, he noted, the Biden administration said no federal appellate court had ever invalidated an FDA approval of a drug, and he did not recall that statement being contradicted. A ruling against the FDA here would be highly unusual. Fisher expected it would likely become “abortion exceptionalism”: more litigation, but not necessarily a broad wave of successful challenges to FDA decisions.

Monsanto v. Durnell presents a different version of the same authority question: when a federal agency has approved a product label, can state-law plaintiffs still argue that the label should have warned about cancer risk?

Shanmugam described Roundup as a widely used pesticide produced by Monsanto, now a subsidiary of Bayer. The Environmental Protection Agency has repeatedly approved the product and periodically reviews pesticide safety and labeling under the Federal Insecticide, Fungicide, and Rodenticide Act, known as FIFRA. EPA’s approval of Roundup’s label includes no relevant cancer warning. Sanger-Katz summarized the practical meaning as EPA’s judgment that the product is safe.

But concerns have been raised about possible links between Roundup and cancer. Shanmugam said a component of the World Health Organization identified such a link several years ago. In the wake of that, a large number of plaintiffs—“somewhere in the neighborhood of 10,000 plaintiffs,” by Shanmugam’s estimate—filed state-law lawsuits claiming Roundup caused their cancer.

The Supreme Court question is whether federal law displaces those state-law suits. Shanmugam described two arguments. The first is express preemption: once EPA has approved a label, FIFRA requires uniformity between federal and state law, so states cannot impose or require additional warnings. The second is implied preemption: EPA has sole authority to determine warnings and safety, and companies are required to comply with EPA’s determinations.

The financial stakes are enormous. Shanmugam called it “literally a billion-dollar case.” Bayer has settled with some plaintiffs but not all, and remaining claims amount to billions of dollars. Yet he cautioned that preemption cases are hard to predict. Federal preemption—when federal law displaces state law—does not map neatly onto the Court’s ideological divisions. Some conservative justices take a strong view of state law and therefore a narrow view of preemption.

Fisher identified two possible implications beyond Roundup. One is doctrinal spillover. Other federal statutes use similar regimes that preempt state law in some circumstances. For a health audience, he said, medical-device law may be the most relevant analogue.

The other implication concerns the pace of agency review. Fisher said EPA, like many agencies, moves slowly; his understanding was that labeling approvals are reviewed roughly once every 15 years. The World Health Organization-linked study Shanmugam mentioned was an intervening study. If one credits that study, as the plaintiffs do and as a Missouri jury did in this case, the lawsuits can be understood not as contradicting EPA but as updating knowledge.

That distinction matters. If the Court treats EPA label approval as dispositive, companies may be shielded from state-law claims even when new studies emerge before the agency acts. If the Court permits the claims to proceed, juries may become a mechanism for incorporating later risk evidence into liability. Fisher said that could create incentives for companies to remain in more regular contact with federal agencies, or it could sharpen the argument that slow agency movement is “a feature, not a bug”—a way to avoid jumping to conclusions before regulators distill new information.

The case therefore is not only about whether Roundup should have carried a cancer warning. It is about whether a federal label settles the warning question until the agency revisits it, or whether state tort law can respond to intervening evidence first.

Chiles v. Salazar places state regulation of licensed therapy against the First Amendment. Colorado prohibited conversion therapy, which Shanmugam described as a practice in which therapists seek to alter patients’ behavior to change their gender identity or sexual orientation. Ms. Chiles, a therapist who wanted to administer that form of therapy, challenged the law as a violation of her First Amendment rights.

The Supreme Court agreed with Chiles in an 8-to-1 decision. Shanmugam said many observers saw the case as doctrinally difficult, but the majority treated it as relatively straightforward. The Court concluded that Colorado’s law discriminated on the basis of viewpoint because it singled out particular viewpoints for disfavored treatment. Under First Amendment doctrine, viewpoint discrimination triggers the highest level of scrutiny and is usually fatal.

Justices Kagan and Sotomayor joined the majority, but Kagan wrote separately, joined by Sotomayor, to distinguish viewpoint discrimination from content discrimination. As Shanmugam explained it, Kagan indicated that the outcome could be different if a law regulated certain types of speech regardless of viewpoint rather than targeting a particular viewpoint.

Justice Jackson was the lone dissenter. Shanmugam called her opinion one of the most interesting separate opinions of the term. Jackson argued that states have plenary power to regulate the medical profession and warned that the decision could allow courts to intrude on state medical regulation. Shanmugam noted that Jackson is married to Patrick Jackson, a prominent doctor in Washington, and suggested that she may be familiar with the medical profession in a way other justices are not. But no other justice joined her opinion, and Kagan criticized Jackson for conflating viewpoint-based and content-based laws.

The health-law concern is whether the decision travels beyond conversion therapy. Sanger-Katz asked whether a ruling rooted in a controversial area of medicine could reverberate into other kinds of care. Fisher said that was exactly the right question. Colorado’s argument, which Jackson adopted, was that the state was regulating a form of medical treatment delivered by licensed professionals. If the case is understood on those terms, Fisher said, it is a very hard First Amendment case, and Jackson’s general concern “has to be right.”

Fisher’s way of making sense of the decision was to treat it as a culture-war case. The Court relied on an earlier, more contested case involving crisis pregnancy centers in California and the free-speech rights of people there. In his view, the Court sees the First Amendment as doing special work in particular pockets of healthcare and medical treatment. He did not expect broad spillover into ordinary medical regulation. But he acknowledged that language in such an opinion could be transported outside the context, and that doctors who dislike state restrictions may have reason to sue even if he is skeptical they will win.

The pending transgender-athlete cases present a related but distinct rights dispute. Shanmugam described them as a pair of cases involving state laws that prohibit transgender athletes from competing in women’s or girls’ sports. The challengers brought claims under the Equal Protection Clause and Title IX. Based on oral argument, he expected the laws to be upheld, probably 6-to-3. He connected that expectation to the Court’s prior rejection of an equal-protection challenge to state laws concerning medical treatment for minors seeking to align with their preferred gender identity. The legal issues are similar, though not identical, he said.

The core point for healthcare regulation is the line between treatment and speech. If a state rule governing licensed professionals is characterized as medical regulation, the state’s authority is at its strongest. If it is characterized as viewpoint discrimination, the First Amendment can sharply limit that authority.

The Court’s Second Amendment ruling on firearm possession by drug users intersects with health and safety in a different way. The federal statute at issue makes it a crime to possess a firearm if someone is “addicted to or an unlawful user of a controlled substance.” Fisher noted that this is the same law used to prosecute Hunter Biden, though Biden received a pardon and his case did not reach the Supreme Court.

The case before the Court involved a man who described himself as a recreational marijuana user. He said he used marijuana once every couple of days, was not addicted, and was not dangerous. He argued that the Second Amendment protected his right to possess a firearm. The Supreme Court unanimously ruled in his favor.

Fisher placed the decision within the Court’s current Second Amendment framework, which asks whether a modern firearm restriction fits within the nation’s history and tradition of firearm regulation. The federal government argued that historical laws disarmed “habitual drunkards,” and that the controlled-substance restriction was a modern analogue. The Court rejected the analogy. As Fisher described it, the older laws restricted firearm possession when someone was actually drunk or was so habitually drunk as to be essentially nonfunctional or akin to having a mental illness in society. That was not close enough to justify disarming the recreational marijuana user before the Court.

The ruling was narrow. Fisher emphasized that the Court invalidated the statute only as applied to individual marijuana use. It did not address other drugs or all controlled substances. But he found the Court’s treatment of marijuana striking. The law was enacted in 1986, during the war on drugs, when Fisher suggested the Supreme Court likely would have viewed marijuana use as dangerous and as creating public-health and safety problems. In the current case, the Court looked to more than 40 states that have decriminalized marijuana in various ways and to a federal government stepping back from prosecution. Without proof from the federal government of a safety problem, the Court would not allow the law to be applied to this marijuana user.

The decision combines a historical test with a contemporary assessment of marijuana’s legal and social treatment. It is not a general deregulation of firearms for drug users. It is a narrow as-applied ruling shaped by changing marijuana norms and by the Court’s demand for a close historical analogue before a firearm restriction can stand.

The birthright-citizenship case is not a healthcare case in form, but Sanger-Katz connected it directly to health coverage. Citizenship affects eligibility for many benefits, including Medicaid for low-income children, which pays for pediatric care early in life.

Fisher said the oral argument suggested the Court was likely to rule against the Trump administration, though not so decisively that he would be shocked by a different outcome. The relevant text is the opening sentence of the Fourteenth Amendment: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States.”

President Trump’s executive order carved out two categories from that rule. One was children born in the United States to undocumented parents. The other was children born to people visiting the United States with no intent to stay permanently. The administration defended the order by arguing that “subject to the jurisdiction thereof” means, in legal terms, domiciled in the United States: the parents have a home here or intend to remain here.

The challengers, led by the ACLU, argued that the phrase historically means being subject to the laws of the United States. On that view, the exceptions are narrow: children of diplomats, members of an invading army, and similar categories.

Fisher identified a major choice for the Court: constitutional ruling or statutory ruling. The Fourteenth Amendment’s text can be read to reject Trump’s theory, consistent with the longstanding public assumption that birth in the United States generally confers citizenship. But Fisher said a statute enacted in the 1940s arguably stands even more clearly in the way of the executive order. Ordinarily, the Court avoids deciding a hard constitutional question if a statute supplies the same answer.

Here, that usual avoidance move could leave significant uncertainty. A statutory decision would leave open political and legal questions and preserve at least the possibility that Congress could pass a new law. A constitutional decision would settle the matter more firmly. Fisher said the choice between constitutional and statutory grounds could be enormously important for continuing political discourse and consequences.

The administrability problem may be just as consequential. If citizenship turns on parental domicile, officials must decide whether parents intended to stay in the United States. Justice Jackson asked at oral argument whether pregnant women would be deposed in doctors’ offices, or just after giving birth, about whether they intended to remain. Fisher asked how anyone would prove that their parents were domiciled in the United States at the moment of birth. The practical implications, he said, could be “quite staggering.”

For health coverage, the downstream issue is concrete. A rule limiting birthright citizenship could affect newborns’ eligibility for citizenship-linked benefits, including Medicaid. The legal fight may be framed around constitutional text and executive power, but Fisher’s account of the domicile inquiry points to a practical burden around birth itself, including the doctor-office scenario Justice Jackson raised.

An audience question about the Department of Justice Office of Legal Counsel and Olmstead put disability services into the same separation-of-powers frame, but Fisher made clear that he was not steeped in the memo the questioner described. The questioner’s premise was that a recent OLC opinion had effectively attempted to overrule Olmstead, the 1999 Supreme Court decision that the questioner said allowed people with disabilities to live in the community, and that the result could be to send thousands of people with disabilities back to nursing homes.

Fisher limited his answer. He recalled Olmstead as holding, under the Americans with Disabilities Act, that individuals with disabilities should be integrated into their communities as much as possible and that holding them back could violate the ADA’s anti-discrimination mandate. He treated the issue, at that level of generality, as another version of executive power versus legislative power. Lawmaking traditionally came from Congress, including through statutes such as the ADA. Increasingly, he said, lawmaking comes from the executive branch, raising separation-of-powers questions about whether the executive can countermand Congress or create new law contrary to Congress’s command.

Fisher added that the recent flow of Supreme Court decisions has been to curb agency power to interpret federal law extravagantly or aggressively. That tendency, he said, would seem to create problems for an executive interpretation that undermines statutory protections, though he again cautioned that he did not have the memo in front of him.

Lauren Gardner asked about the “medical freedom” movement and efforts to bring those cases to the Supreme Court. When Sanger-Katz asked her to summarize the movement’s goals in one sentence, Gardner said: “To get rid of vaccine mandates among other things.” Shanmugam declined to comment because he said he was involved in at least one case involving COVID-19 vaccine mandates. Fisher said he did not have a strong view.

The exchange produced no prediction on vaccine mandates. It did identify the claims likely to carry future health disputes into constitutional litigation: First Amendment rights, parental choice, medical freedom, and public health authority.

Public trust in the Supreme Court matters for health law because major health-policy conflicts are being resolved through litigation. An audience member said polling shows trust in the Court has never been lower and that many Americans view it as just another political actor.

Shanmugam connected the problem to the Court’s central role in nearly every major issue in American public life. One reason, he said, is that Congress has largely ceased to legislate. Presidents respond by taking executive actions; those actions are immediately challenged in court; and the disputes end up before the Supreme Court. If one summarized the panel’s subjects, he said, they would include nearly every major issue in American life, and “basically none” are issues Congress is currently able or willing to address.

That dynamic increases political focus on nominations to the Supreme Court and lower courts. It also feeds the perception that the Court is politicized. Shanmugam said he personally thinks many criticisms of the Court are misplaced, but he understands why the perception exists when the justices appear divided according to the politics of the presidents who appointed them. Much of the Court’s work, he said, has no political valence, but public attention understandably falls on the most contentious cases—the kinds discussed by the panel.

Dobbs, in Shanmugam’s view, had a significant effect on perceptions of the Court, along partisan lines. Republicans had a much higher opinion of the Court after Dobbs than Democrats did. He said he would be interested to see how polling changes as Dobbs recedes into the rear-view mirror.

Fisher offered a practical measure of remaining institutional authority. At the beginning of the Trump administration, people wondered whether Trump would abide by a Supreme Court decision he disliked. After the tariffs decision, Trump vigorously criticized the Court, but the federal government was at least to some degree abiding by the ruling, as it was with other rulings. That suggests, Fisher said, that there remains enough public trust that the president does not feel free to disregard the Court’s decisions. For the Supreme Court, that is the “ultimate game,” because it has no army to enforce its rulings and depends on public trust.

Shanmugam added that criticism of the Court is not only a Trump-era or Republican phenomenon. Some of the most critical White House comments about the Court, he said, came from President Biden after the student-loan decision a few years earlier. Politicians of both parties benefit from criticizing the Court after losing significant cases, because such criticism plays to their bases. He expects more of it, and said it contributes to the perception that the Court is just another political actor.

The final audience question, on Supreme Court term limits, extended the same legitimacy concern. Shanmugam said the Constitution does not permit term limits without amendment, but as a policy matter there are respectable arguments for them if designing from scratch. The current system gives presidents incentives to nominate justices as young as possible and gives justices incentives to time retirement for partisan succession. Fisher said he favors term limits and noted that for most of American history the average Supreme Court term was about 16 years, while now it has ballooned to more than 30. An 18-year rotating term, he said, would in that sense return the Court to tradition. Shanmugam added that some current proposals appear designed to benefit one party or remove specific sitting justices, which he called improper.