Supreme Court Health Cases Test Agency Power, State Law, and Citizenship

Kannon Shanmugam identified the term’s central theme as “how the Supreme Court thinks about executive power and the power of the president.” The highest-profile disputes he named — tariffs, removal of officials exercising executive power, and birthright citizenship — all ask how far presidential authority can run before courts stop it. Some questions are specific to this president, he said; others have broader significance for the presidency itself.

Shanmugam predicted that the president would lose “a number of the highest profile cases.” The court had already ruled against the president in the tariffs case, and he expected losses in the birthright citizenship case and perhaps in one of the removal-power cases. If that happens, he argued, the familiar account of the court will need adjustment. Since Justice Amy Coney Barrett joined the court in 2020, the dominant narrative has been that the court is substantially more conservative; since last year, it has also been that the court is broadly aligned with many of the president’s key priorities. A run of defeats for the president would make that picture “much more nuanced.”

Jeffrey Fisher agreed that executive power is the term’s overarching theme, but resisted the idea that adverse rulings against the president would mean the court is “sliding left.” Fisher described a court willing this term to have “a direct clash with the president,” and said the court had used procedural maneuvers to avoid a direct confrontation when President Biden first took office. He added the Chicago National Guard deployment case to the list of decisions in which the court had ruled against the president.

But Fisher also emphasized that, by the standards of the conservative legal movement, the court remains “fundamentally an extremely conservative court.” He pointed to Dobbs, the expansion of gun rights, and limits on race-consciousness in admissions and voting districts as examples of the court delivering long-standing conservative legal goals. The expected pattern, in his view, is not a leftward slide but a checkered set of rulings in executive-power fights, alongside a broader jurisprudential trajectory that remains deeply conservative.

That distinction matters for health law because the health-related disputes discussed by the panel do not fit a single doctrinal category. Abortion access turns on FDA authority, the emergency docket, and post-Dobbs federalism. Roundup litigation turns on whether EPA labeling approval can shut down state tort claims. Colorado’s conversion-therapy ban, as Shanmugam described the court’s decision, turned on whether medical regulation was also viewpoint discrimination. A gun case turned on whether a public-safety restriction could survive the court’s history-and-tradition test. Birthright citizenship, if resolved against the administration, may be decided on constitutional or statutory grounds; if resolved for the administration, Fisher said the practical consequences of proving parental domicile could be “staggering.” Sanger-Katz tied that citizenship dispute to health by noting that citizenship affects eligibility for benefits including Medicaid for low-income children.

The through-line was institutional rather than topical: health outcomes are being shaped by fights among presidents, agencies, states, juries, doctors, and courts. Where Congress is absent or slow, the Supreme Court becomes the place where those choices are reordered.

The mifepristone litigation is formally about FDA action, administrative law, and the emergency docket. It is also, inescapably, about abortion access after Dobbs. Margot Sanger-Katz framed the case as consequential both for abortion access and for the broader question of whether courts can second-guess drug-related decisions made by the Food and Drug Administration.

Jeffrey Fisher situated the dispute in the post-Dobbs world. Dobbs did not make abortion illegal nationwide; it allowed states to regulate abortion more or less as they wish. Justice Brett Kavanaugh’s concurrence in Dobbs said people would still be able to travel between states to obtain abortion care. Fisher described the mifepristone fight as a kind of inverse question: if a person may travel to care, can the care be brought to them?

The relevant FDA action, as Sanger-Katz clarified, was not specifically an authorization for interstate mailing. It was a rule allowing mifepristone to be mailed without an in-person visit. Fisher said the administration changed the rules in reaction to Dobbs and, according to his account of what the administration had said, in light of lessons from the Covid pandemic. In practice, he said, the rule opened the door to mailing prescriptions, including across state lines.

The first challenge came from 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 if an agency failed to consider relevant factors, review the evidence, or otherwise acted arbitrarily and capriciously. The Fifth Circuit agreed with that challenge and invalidated the rule removing the in-person-visit requirement. The Supreme Court vacated that decision on standing grounds, concluding that the plaintiffs were not legally entitled to bring the case.

A new challenge from Louisiana now makes the same underlying arguments with a different plaintiff. Louisiana argues that the FDA rule impedes the state’s sovereign interest in enforcing its abortion ban. A lower court essentially agreed with Louisiana, and the Fifth Circuit stayed the FDA rule while it considered the appeal. The Supreme Court, on its emergency docket, vacated that stay by a 7–2 vote, leaving the FDA’s current rule in effect while litigation continues.

1. After Dobbs
   The FDA rule allowing mifepristone to be mailed without an in-person visit becomes central to abortion access across states with different abortion laws.
2. Earlier challenge
   Doctors who did not prescribe mifepristone challenge the FDA rule under the Administrative Procedure Act.
3. Prior Supreme Court review
   The Supreme Court vacates the Fifth Circuit’s decision on standing grounds.
4. Current challenge
   Louisiana brings similar underlying arguments, claiming the FDA rule interferes with its sovereign interest in enforcing its abortion ban.
5. Emergency docket
   The Supreme Court vacates the Fifth Circuit stay by a 7–2 vote, keeping the FDA rule in effect while the appeal proceeds.

Fisher said the appeal is now playing out in the Fifth Circuit. Based on that circuit’s past handling of the dispute, he thought the Fifth Circuit would most likely invalidate the FDA rule again, at which point the case would travel back to the Supreme Court.

Kannon Shanmugam said that, despite several major follow-on abortion questions identified in Dobbs, the court has not heard what he called a “substantive abortion case” in the three years since. If the Fifth Circuit invalidates the FDA rule, he sees a good chance — though not a certainty — that the Supreme Court will grant review. One complication is that the FDA itself can modify the rule. Shanmugam said the administration had given at least some indication it was considering the rule’s substance. If the agency changes the rule, the existing challenge could become moot or at least legally transformed.

The procedural posture also makes the case difficult to read. Shanmugam prefers to call the emergency or “shadow” docket the motions docket, because parties are asking the court for temporary relief while the merits are still being litigated below. On that docket, he said, the justices are not weighing only the merits; they are also considering prudential factors and the equities. He sees “something of a thumb on the scales in favor of the government and the status quo,” though status quo itself can be contested.

That is why Shanmugam cautioned against treating the court’s interim handling of mifepristone as a “weather vane” for its abortion jurisprudence generally. The questions presented are, formally, “somewhat technical administrative law issues.” But he added that the abortion context plainly colors the case. Justices Alito and Thomas, dissenting from the Supreme Court’s decision to let the FDA rule remain in place, described the mailing regime as an “end around” Dobbs, which they understood as giving states the primary power to regulate abortion.

Sanger-Katz supplied the practical context that makes the dispute so significant. After Dobbs, many expected the number of abortions in the United States to decline because many states wanted to ban abortion and did so. Instead, she said, the total number of abortions appears to be growing. She attributed that to two developments tied to the FDA rule. In states where abortion remains legal, abortions have increased, partly because patients travel from states with bans, but also because mailed pills reach people who previously had difficulty getting to clinics: rural patients, people without transportation, or women unable to arrange child care. At the same time, she said, pills are being mailed into states where abortion is illegal, sometimes by doctors in states where abortion remains legal.

That has produced an unexpected post-Dobbs dynamic. In some states where abortion had technically been legal before Dobbs, access was already difficult because clinics were scarce and restrictions were heavy. Mailed medication can be cheaper, more seamless, and less constrained by geography than clinic-based care. Sanger-Katz described this as one reason abortions have increased rather than declined.

The broader anxiety, especially for the pharmaceutical industry, is whether the case becomes a template for attacking FDA drug approvals outside abortion. Fisher said a Supreme Court decision invalidating the FDA’s mifepristone action would “definitely give rise to increased litigation” because it would show disappointed litigants how to argue that the FDA did not do enough homework. But he was skeptical that such challenges would often succeed. The administration had told the Supreme Court in the earlier mifepristone case that no federal appellate court had ever invalidated an FDA approval of a drug, and Fisher said he did not think that statement was contradicted. If the court ultimately invalidates the mifepristone rule, he expects it would likely amount to “abortion exceptionalism” rather than a broad change in outcomes across pharmaceutical regulation.

The Roundup case, Monsanto v. Hardeman, puts another agency decision under pressure, but through a different mechanism: whether a federal regulator’s approval of a product label prevents state-law claims that the product should have carried stronger warnings.

Kannon Shanmugam described Roundup as a widely used pesticide produced by Monsanto, now a subsidiary of Bayer. The Environmental Protection Agency has repeatedly approved it under the Federal Insecticide, Fungicide, and Rodenticide Act, known as FIFRA. The EPA periodically reviews pesticide products for safety and approves their labels. Roundup’s relevant label does not carry the warnings at issue in the case, which Shanmugam said reflects the EPA’s judgment that the product is safe.

The state-law claims arise from alleged links between Roundup and cancer. Shanmugam said a component of the World Health Organization identified a link several years ago, after which a large number of plaintiffs — “somewhere in the neighborhood of 10,000” — filed lawsuits alleging that Roundup caused their cancers. Bayer has settled with some plaintiffs but not all.

The Supreme Court question is whether federal law trumps state law, preventing those lawsuits from proceeding. Shanmugam described two arguments being made in the case. First, FIFRA requires uniformity between federal and state labeling requirements, so states may not require additional warnings beyond what EPA-approved labeling provides. Second, there is an implied-preemption argument: that EPA has the sole authority to make safety and warning determinations, and companies are required to comply with those determinations.

Shanmugam called it “literally a billion dollar case,” with claims amounting to billions. But he also warned that preemption cases are not easy to predict. Preemption is the doctrine under which federal law displaces state law. Some conservative justices, he said, take a muscular view of state-law authority and therefore a narrow view of preemption. The case is technically complex, but its stakes in ongoing American litigation make it important.

Jeffrey Fisher pointed to two possible kinds of spillover. Other federal statutes have similar structures that preempt state law in some circumstances; the federal law governing medical devices may be especially relevant for a health audience. A broad preemption ruling in the Roundup case could influence litigation under analogous regulatory regimes.

But Fisher was also watching how the court thinks about regulatory time. EPA, like many federal agencies, moves slowly. His understanding is that labeling approvals are reviewed roughly once every 15 years. The cancer-related study Shanmugam mentioned was intervening evidence. If one credits that study, as the plaintiffs did and as a Missouri jury did in the case, the state-law claim can be understood not as contradicting the EPA but as updating knowledge.

That framing could matter beyond Roundup. If juries and state-law claims are treated as impermissible interference with federal labels, companies may be insulated where agencies have moved slowly. If they are treated as a legitimate response to new information, companies may have greater incentives to maintain more regular contact with federal agencies, or agencies may be pushed toward more active updating. Fisher also noted the contrary institutional view: agency slowness may be “a feature, not a bug,” a way to avoid fast conclusions and instead distill information over time.

An audience question put a disability-rights issue into the same institutional frame. The questioner asked about an Office of Legal Counsel opinion that, in the questioner’s characterization, effectively attempted to overrule Olmstead, the 1999 Supreme Court decision under the Americans with Disabilities Act that supported the right of people with disabilities to live in community settings. The panelists did not analyze the memo itself. Fisher said he was not steeped in it and did not have it in front of him. He did recall the gist of Olmstead as holding that individuals with disabilities should be integrated into their communities as much as possible, and he agreed with the questioner’s statement that the decision treated unnecessary segregation as violating the ADA’s anti-discrimination mandate.

Fisher placed the issue at a high level in the executive-power frame that opened the discussion. Traditional lawmaking comes from Congress, such as the ADA. But lawmaking increasingly comes from the executive branch, creating separation-of-powers questions when executive action appears to countermand Congress or create law inconsistent with congressional enactments. Fisher said the Supreme Court’s recent “flow” has been to curb agencies when they extravagantly or aggressively interpret federal law. That trend, in general, would suggest problems for executive action that tries to override statutory commitments, though he stressed he was not opining on the specific OLC memo.

In Chiles v. Salazar, as Kannon Shanmugam described the case, the court treated Colorado’s regulation of a therapeutic practice as a First Amendment problem. Shanmugam defined conversion therapy as therapy in which therapists seek to alter patients’ behavior by convincing them to change their gender identity or sexual orientation. Colorado banned that practice, and the plaintiff, a therapist who wished to provide it, challenged the law as a violation of her First Amendment rights.

According to Shanmugam, the Supreme Court agreed with the therapist in an 8–1 decision. He said many observers had viewed the case as doctrinally difficult because First Amendment doctrine can be complicated, but the majority treated the outcome as straightforward. The court reasoned, in his account, that the law discriminated on the basis of viewpoint by singling out particular viewpoints for disfavored treatment. Under the First Amendment, Shanmugam said, viewpoint discrimination is “basically a death sentence for the law,” because such laws receive the highest level of judicial scrutiny.

The alignment was notable. Justices Elena Kagan and Sonia Sotomayor joined the majority, but Kagan wrote separately, joined by Sotomayor, to say the outcome might be different if the law discriminated based on content rather than viewpoint. In other words, a law targeting certain categories of speech regardless of viewpoint could be assessed differently.

Justice Ketanji Brown Jackson was the lone dissenter. Shanmugam described her opinion as one of the most interesting separate opinions of the term. Jackson argued, in his account, that states have plenary power to regulate the medical profession and worried that the court’s ruling would allow courts to intrude into core state regulation of medicine. Shanmugam noted that Jackson is married to a prominent doctor and suggested she may be familiar with the medical profession in a way other members of the court are not. What he found striking was that no other justice joined her dissent — and that Kagan, in particular, criticized Jackson for conflating viewpoint-based laws with content-based laws.

Margot Sanger-Katz pressed the broader health-law implication: could a case rooted in transgender rights and a controversial area of medicine reverberate into other forms of medical regulation? Jeffrey Fisher said that is exactly the right question. Colorado’s argument, picked up by Jackson, was that the state was regulating medical treatment by licensed professionals — a core state function. On those terms, Fisher said, the case is “very, very hard” under the First Amendment, and he thought Jackson’s general point “has to be right.”

But Fisher’s legal-realist reading was that the decision is best understood as a “culture wars kind of case.” The court’s framework drew from an earlier, more contested decision involving crisis pregnancy centers in California and free speech rights. In those kinds of contested pockets of health care and medical treatment, he said, the court seems to see the First Amendment as doing “special work,” rightly or wrongly. He did not expect broad spillover beyond such contexts, though he acknowledged that language from the opinion could be transported elsewhere.

Sanger-Katz asked whether doctors unhappy with state restrictions might bring more litigation even if the Supreme Court’s ruling does not cause broad doctrinal change. Fisher said there is “every reason” for such plaintiffs to bring cases, but as a legal realist he was skeptical that they would succeed.

The other transgender-rights dispute on the court’s docket involved state laws barring transgender athletes from competing in women’s or girls’ sports. Shanmugam said the cases present claims under the Equal Protection Clause and Title IX. Based on oral argument, he predicted the laws would likely be upheld, probably 6–3. He connected that prediction to the court’s decision the prior year rejecting an Equal Protection challenge to state laws governing medical treatment for minors seeking to align with their preferred gender identity. The legal issues, he said, are similar though not identical.

Rights-based limits also appeared in the court’s gun decision, though through the Second Amendment rather than the First. Fisher described a federal statute making it a crime to possess a firearm if a person is “addicted to or an unlawful user of a controlled substance.” He noted that this was the law used to prosecute Hunter Biden, though Biden’s pardon meant his case did not reach the Supreme Court.

The case before the court involved a self-described recreational marijuana user who said he used marijuana once every couple of days, was not addicted, and did not become dangerous as a result. He argued that he retained a Second Amendment right to possess a firearm. Fisher said the Supreme Court unanimously ruled in his favor, applying its recent decisions creating a more robust Second Amendment right.

Fisher identified two important features of the ruling. First, it continues the court’s method of asking whether a modern firearm regulation has a historical analogue — a “history and tradition” of regulating firearms in the same way. The federal government argued that American law had historically disarmed “habitual drunkards,” and that the controlled-substance law was a modern analogue. The court rejected that comparison as insufficiently close. According to Fisher’s account, the older laws restricted firearm possession when someone was actually drunk or so habitually drunk as to be nonfunctional or akin to having a mental illness in society.

Second, the court invalidated the statute only as applied to individual marijuana use. It did not address other drugs or controlled substances generally.

Fisher found the court’s treatment of ordinary marijuana use striking. The law was passed in 1986, during the war on drugs, when he suggested the Supreme Court would likely have viewed marijuana as dangerous and tied to serious public health and safety concerns. In this decision, by contrast, the court looked across the country and saw more than 40 states that had decriminalized marijuana in various ways, along with a federal government stepping back from prosecution. Without proof from the federal government that the particular conduct created a safety issue, the court would not allow the law to be applied.

The panelists did not offer a substantive forecast on vaccine-mandate litigation. Lauren Gardner asked about the “medical freedom” movement and efforts to move cases in that vein toward the Supreme Court. At Sanger-Katz’s request, Gardner summarized the movement’s goals in one sentence: “To get rid of vaccine mandates. Among other things.” One panelist said he was involved in at least one case involving COVID-19 vaccine mandates and therefore should not comment; Fisher said he did not have a strong view.

The birthright citizenship dispute — identified in the discussion as the Barber case — was described as the blockbuster case of the term. Its implications go well beyond health care, but Margot Sanger-Katz emphasized that citizenship affects eligibility for health benefits, including Medicaid coverage for low-income children.

Jeffrey Fisher said the oral-argument “tea leaves” appeared unfavorable to the administration, though not so decisively that he would be shocked by a different outcome. The relevant constitutional 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.” The executive order at issue carved out two categories from that guarantee: children born in the United States to undocumented parents, and children born to people visiting the United States with no intent to stay or establish permanent residence.

The federal government’s defense turns on the phrase “subject to the jurisdiction thereof.” Its argument, as Fisher described it, is that the phrase requires domicile: the parents must have a home in the United States or intend to remain here. The challengers, led by the ACLU, argue that historically the phrase means being subject to U.S. law. On that view, the exceptions are narrow — for example, children of diplomats or invading armies — and do not include the categories carved out by the executive order.

The court may reject the executive order, but how it does so matters. One path is constitutional: hold that the Fourteenth Amendment itself forecloses the president’s theory. Another is statutory: rely on a law enacted in the 1940s that Fisher said arguably stands even more clearly in the way of the executive order.

Ordinarily, Fisher said, the court avoids hard constitutional questions if a statute resolves the case. But the statutory route would leave political and legal uncertainty. Congress might pass a new law; the constitutional question would remain open. A constitutional decision would settle more, but it would require the court to confront the meaning of the Fourteenth Amendment directly.

The practical problems of the administration’s domicile theory were described as potentially staggering. Fisher recounted Justice Jackson’s question at oral argument: would pregnant women be deposed when they came to doctors’ offices, or perhaps right after giving birth, about whether they intended to stay in the United States? More broadly, he asked how people would prove that their parents were domiciled in the United States at the time of their birth. A rule that turns citizenship on parental domicile would not merely alter doctrine; on Fisher’s account, it would create hard administrative and evidentiary questions about how citizenship is established.

For health systems, Sanger-Katz’s point was narrower but concrete: citizenship status affects eligibility for benefits, including Medicaid for low-income children. If birthright citizenship depends on a disputed inquiry into parental domicile, that eligibility could become entangled with the same proof problems Fisher described.

Asked about polling showing low public trust in the Supreme Court and a perception that the court has become just another political actor, Kannon Shanmugam said the issue is complicated. The court now sits at the center of almost every major issue in American public life. One reason, in his account, is congressional inaction. With Congress “basically having ceased to legislate,” presidents increasingly act through executive orders and agency measures. Those actions are immediately challenged, and the disputes end up at the Supreme Court.

That dynamic makes the court appear responsible for resolving the nation’s most contentious political questions. Shanmugam noted that the subjects discussed by the panel — abortion, guns, transgender rights, citizenship, administrative power, agency authority, and health regulation — are essentially major issues in American life, and largely issues Congress is not currently resolving.

He said there has therefore been greater political focus on judicial nominations, not only to the Supreme Court but to lower courts, and a growing perception that the court is politicized. Shanmugam personally thinks many criticisms are misplaced, but he understands the perception when the court appears divided according to the politics of the appointing president. Much of the court’s work, he said, does not have a political valence. But public attention understandably concentrates on the most contentious cases.

Dobbs, in particular, had a major effect on public perceptions of the court, Shanmugam said, with partisan consequences: Republicans had a much higher opinion of the court after Dobbs than Democrats did. He said he will be interested to see where polling goes as Dobbs recedes further into the rearview mirror.

Jeffrey Fisher added that the modern nominations process — from selection through confirmation — increases divisiveness along party lines. He also acknowledged that he and Shanmugam both have “skin in the game of the court’s legitimacy.” Still, he argued that one measure of trust remains meaningful: whether the president feels free to disregard the court’s rulings. Early in the Trump administration, Fisher said, people wondered whether President Trump would comply with a Supreme Court decision he disliked. After the tariffs decision, Trump criticized the court vigorously, but the federal government was at least to some degree abiding by the ruling. For Fisher, the court’s ultimate challenge is sustaining enough public trust that its judgments are obeyed, because it has no army to enforce them.

Sanger-Katz asked whether that compliance might depend on the partisan overlay: a conservative court may be easier for Trump to respect even when it rules against him, while a future Democratic administration facing an ideologically conservative court might respond differently. Shanmugam replied that some of the most critical White House comments about the court came from President Biden after the student-loan decision. Politicians of both parties, he said, often benefit from attacking the court after losing major cases because doing so plays to their bases. That contributes to the perception that the court is just another political actor.

Fisher closed the thread by invoking the 2000 election as a historical reference point he now teaches to students without direct memory of it: Al Gore said he vigorously disagreed with the Supreme Court’s decision but would abide by it. The open question, Fisher said, is whether that would happen again. He thinks it probably would, but the uncertainty itself matters.

The same concern explains why Supreme Court composition matters for health-law stability. Both lawyers saw little reason to expect retirements this year. Shanmugam said the usual cues court watchers monitor, such as justices not hiring law clerks, had not appeared. Although several justices are in their 70s — Justice Clarence Thomas turned 78 that day — Shanmugam called the current court “relatively young” by Supreme Court standards, given how long justices have historically served. Barring something unexpected, he said, “the court that we see is the court that we are likely going to have” at least for the next term, if not until the next election.

Fisher agreed. If Justices Thomas and Samuel Alito are in good health and on the majority wing of the court, he said, it would be hard to leave while “making law that you believe in.” That attachment is professional, he suggested, but also deeply personal for people whose identities have been shaped by the work for decades.

The final audience question asked whether Supreme Court justices should have term limits. Shanmugam separated constitutionality from policy. He does not think the Constitution currently permits term limits; in his view, an amendment would be required. As a policy matter, however, he said there are respectable arguments for term limits if one were starting from scratch. Lifetime tenure gives presidents an incentive to nominate justices as young as possible so they can serve as long as possible. That may be undesirable at both ends: justices should have sufficient judicial and life experience when appointed, and they should not remain on the court too long. Term limits would also reduce incentives for justices to time retirements so that a president of a preferred party can choose their successor.

Fisher said he favors term limits and has written on the subject. For most of American history, he said, the average Supreme Court term was about 16 years; now it has ballooned to more than 30. The most common reform proposal, 18-year rotating terms, would in his view be a return to historical tradition rather than a break from it.

Shanmugam added a caveat. Many current term-limit proposals, he said, appear designed to benefit one party over another, including by forcing out particular sitting justices. That, he said, would be improper.