The role of regulation in reproductive health policy, and indeed health policy more generally, has soared over the past several decades. Today, regulations—statements issued by federal agencies that have the force of law—dictate or influence, among other things, the affordability, availability, quality, and privacy of sexual and reproductive health care. 

This growth reflects a recognition that the health care system is too complex and fast-changing for Congress to handle every policy question. Instead, Congress usually opts to enact the broad outlines of new health initiatives, leaving agencies to draw on their deep expertise, practical experience, and flexibility to fill in the details and stay abreast of changes in science, medicine, and public health. Besides, having Congress attend to every detail would be not only unwise but virtually impossible. Few bills of any import stand a chance of surviving the bitter partisan dynamics of today’s Congress. And if congressional gridlock prevents agreement on even the broad strokes of legislation, then there’s simply no hope of agreement on all of the particulars. 

Despite these advantages, the legal foundations of regulation have eroded in recent years. Activist groups that are philosophically opposed to regulation have brought a series of lawsuits challenging the power of agencies. And like-minded judges have capitalized on these cases by redrawing the boundaries of agency power to put an increasing number of regulatory decisions out of the reach of agencies.

These legal changes may appear to limit regulatory activity across the political spectrum, but they are far from ideologically neutral. Political conservatives have traditionally opposed regulation on the grounds that most issues are better decided by the free market, corporations, and states. Progressives, by contrast, are more likely to want to keep or strengthen regulations, especially in the areas of health, safety, and the environment. So when courts narrow the power of agencies to regulate, they should be understood as taking sides in this long-running debate. 

What makes this ideological imbalance even more concerning is the vast power these new norms hand over to a judiciary that’s becoming more partisan. Historically, courts reviewing regulations have tended to give agencies the benefit of the doubt on many legal and factual questions out of a respect for the proper role of each actor within the constitutional system. Courts were expected to hold back unless an agency had clearly crossed the line. But the emerging doctrines on regulation envision a larger and more aggressive role for courts in the regulatory process. These doctrines loosen the reins, inviting judges to consult their own policy views in deciding the fate of challenged regulations and transferring considerable power from agencies to the courts. And given the right-ward drift of the federal bench in recent years, this expansion of judicial discretion is likely to selectively harm the policy goals of progressives while leaving conservative priorities intact.

Some anti-regulation activists are pushing for radical changes that would immediately undercut agencies’ ability to regulate—for example, the revival of the long-dormant nondelegation doctrine, which could be used to prevent Congress from enlisting the help of agencies to implement laws on constitutional grounds, and which a majority of Supreme Court justices have signaled a willingness to revisit. But courts have so far opted for a more incremental approach. In the rest of this post, we’ll look at the anti-regulation trends in three areas of the law, with an eye towards how these changes might affect efforts to protect and improve reproductive health. Then we’ll sketch out some directions for future advocacy in light of these legal developments.

Ending Chevron deference

Agencies have only those powers that are delegated to them by Congress. But Congress’s instructions are often vague, so how do we know whether agencies are acting within their delegated powers? For a long time, the answer had been to defer to agencies on these interpretive questions. This was the core message of the 1984 case Chevron v. Natural Resources Defense Counsel, where the Supreme Court held that we should usually go with an agency’s interpretation of an ambiguous law that it’s charged with executing. The Court reasoned that it was agencies—not judges—that were best positioned to settle these types of questions because of their domain-specific expertise and comparatively greater political accountability. Under Chevron, an agency could read a law to include an implicit delegation of regulatory power even if there was no explicit language to that effect. Practically speaking, agencies in the Chevron era had wide latitude to adopt or change policies as long as they could point to a reasonable legal rationale.

Although Chevron was decided by a right-leaning Supreme Court in order to help the Reagan administration soften the blow of environmental legislation on businesses, by the time of the Obama administration, the decision had, to the opponents of regulation, become a symbol of liberal overreach. It was around this time that anti-regulation activists began socializing the idea that Chevron, by requiring judges to defer to agency interpretations of the law, had led the judicial branch to abandon its duty to say what the law is. They theorized that this abdication had violated, among other things, the Administrative Procedure Act (APA), in which Congress lays out when and how agencies can regulate.

Over the summer, these theories were vindicated in Loper Bright Enterprises v. Raimondo, which formally overruled Chevron. There, the Court announced that neither silence nor ambiguity on the part of Congress is enough to trigger agency deference. Moving forward, judges who are reviewing agency actions must rely on their own judgment to “determine the best meaning” of an ambiguous law. And while an agency’s expertise may inform that judgment, it can no longer fully dictate the result. Exactly how much weight should judges give to agency interpretations after Loper Bright? It’s unclear. The Court suggested that the deference owed to agencies under Chevron would revert to the mere “respect” that was required in pre-Chevron cases (e.g., Skidmore v. Swift & Co.). Uncertainty about what “respect” really means, however, has led to debate about whether Loper Bright will result in a mere re-branding of existing practices, a true departure from Chevron, or something in between.

The Loper Bright decision, if it does represent a genuine change, is likely to put new obstacles in the way of efforts to protect and improve reproductive health. For years, agencies, confident that their policies will be upheld as long as they’re based on a reasonable reading of the law, have relied on implicit delegations of power to define important areas of reproductive health policy. Agencies probably won’t feel as free to do so without the safe harbor that Chevron once provided. And while the demise of Chevron technically affects regulatory policy on both sides of the reproductive health debate, it’s more likely to disadvantage policies that protect and expand access to reproductive health care. This is because replacing the judgments of agencies with that of Republican judicial appointees is likely to “lock in” conservative interpretations of health care laws that current and future administrations would be bound to respect.

The risk is perhaps best illustrated by regulatory policies that tend to swing back and forth with each presidential transition. Take, for example, the regulations that govern the Title X family planning program. Under the Title X statute, the federal government can make grants to states and organizations that provide free or low-cost family planning services to underserved populations. Among Congress’s various requirements on Title X grantees is a prohibition on offering “abortion as a method of family planning.” There’s no doubt that this text bars Title X-funded abortions. But did Congress intend it to bar grantees from giving patients information on abortion (e.g., counseling, referrals)? In light of the text’s ambiguity, courts applying Chevron have for years deferred to agencies on this question, which has allowed successive administrations to adopt opposing interpretations of the same text. For instance, the Reagan and Trump administrations issued regulations to bar Title X grantees from providing certain abortion-related information to patients, while the Clinton and Biden administrations have issued rules to permit those activities. 

Under Loper Bright, we can expect this flip-flopping to give way to a single definitive interpretation of Title X. (At least one appeals court judge has already acknowledged this possibility.) That single definitive interpretation, moreover, is likely to reflect the ideological composition of today’s Supreme Court. To be sure, the Loper Bright majority says that past cases that upheld regulations under Chevron, presumably including those that honored opposing interpretations of Title X, are still good precedent. But this should strike us as cold comfort. First, Title X’s more restrictive readings were approved by none other than the Supreme Court itself, while the more permissive readings have only managed to earn the lesser precedential value afforded by lower court rulings. And more to the point, the ease with which the Court has recently discarded precedent of all kinds—including Chevron itself—is reason to be skeptical of the Court’s future adherence to cases from the Chevron era. 

The past practice of seesawing between statutory interpretations every four or eight years, while far from ideal, was from a progressive perspective better than letting today’s Supreme Court decide, once and for all, that the “best reading” of Title X forecloses any discussion of abortion by grantees. The same logic suggests that other reproductive health regulations that are based on implicit delegations of power, and which are therefore susceptible to the same type of flip-flopping, could also be in danger—such as the rules implementing federal conscience protections, or those protecting the privacy of reproductive health information, to cite a few examples.

Expanding the major-questions doctrine

Sometimes an agency asserts a regulatory power that is so broad—and has such far-reaching potential consequences—that courts are unwilling to believe that Congress really meant to authorize it. That's the gist of the major-questions doctrine, which was first recognized by the Supreme Court in Food and Drug Administration v. Brown & Williamson Tobacco. That case, decided in 2000, concerned a challenge to the FDA’s tobacco regulations on the grounds that they exceeded the power that Congress gave the agency. The Court in Brown & Williamson Tobacco declined to defer to the FDA’s interpretation of an ambiguous law as would otherwise be typical under Chevron. Instead, the Court reasoned that, given the economic scale of the tobacco industry and its history of being regulated under a separate regulatory scheme, it was highly unlikely that Congress would “delegate a decision of such economic and political significance to an agency in so cryptic a fashion,” so there was “reason to hesitate before concluding that Congress” intended to do so.

For most of its history, the major-questions doctrine served as a limited and vaguely defined departure from the usual deference that courts owed to agencies under Chevron. But recently, the Court has changed direction, not only revitalizing the doctrine but transforming it into an aggressive tool for curbing agency action. Beginning in 2021, the Court used the major-questions doctrine to narrow the power of agencies to regulate in several important areas, including the Centers for Disease Control and Prevention (CDC) moratorium on evictions during the COVID-19 pandemic, the Occupational Safety and Health Administration (OSHA) COVID-19 vaccine mandate, Environmental Protection Agency (EPA) emissions standards for power plants, and the Department of Education (ED) student debt cancellation plan. Together, these decisions set a new, higher bar for agency actions. From now on, a “major” action would fall unless the agency could point to specific language in the statute authorizing it. As explained by one scholar: “If a majority of justices determine that eating an ice cream cone is a major question, then it is not enough that Congress has empowered the agency to ‘eat any dessert it chooses.’ It must legislate that the agency can ‘eat any dessert it chooses, including ice cream cones.’”

Throughout the doctrine’s evolution, however, at least one aspect has remained constant: its malleability. Beyond a few key words and phrases, courts have given little guidance about what qualifies an action as “major.” For example, an agency action has been said to be major if it is “exceptional,” “transformative,” or “unheralded,” and if it implicates “a question of deep economic or political significance.” What do these terms mean? Recently, Justice Gorsuch tried to distill some of the characteristics that trigger the doctrine’s application. He wrote that the doctrine applies when “an agency claims the power to resolve a matter of great ‘political significance’ … or end an “earnest and profound debate in across the country.’” Likewise, the doctrine applies when an agency “seeks to regulate a significant portion of the American economy.” And it also applies when an agency “intrud[es] into an area that is the particular domain of state law.” These factors, far from narrowing the possibilities, will strike most readers as astonishingly broad.

The revitalized major-questions doctrine puts many regulatory actions in the danger zone, but it arguably poses a special risk to actions relating to reproductive health. Judges who are hostile to reproductive health are likely to use the doctrine to label as “major” any policies that they disagree with. For example, few topics can be said to stir up more “earnest and profound debate across the country” than abortion—does this put the issue permanently outside the reach of agencies? And after Dobbs v. Jackson Women’s Health Organization, which effectively removed any restraints on states’ regulation of abortion, would courts consider all federal regulations on reproductive health per se “intrusions” into state power? Once a reproductive health regulation is deemed “major,” moreover, it’s doomed to fail unless the agency can point to specific language in the law allowing it. In many cases agencies won’t be able to produce the level of specificity demanded by the Court. After all, for both practical and political reasons, Congress doesn’t have a history of speaking directly to questions of reproductive health, which is why many regulations on reproductive health rely for their authority on general health care legislation. The lack of congressional specificity that previously gave agencies the flexibility to address reproductive health via regulation may now be the key to undermining those efforts.

Attempts to weaponize the major-questions doctrine for this purpose are already underway. Earlier this year, the Supreme Court handed down its opinion in Moyle v. United States, a case that concerns whether an Idaho law that restricts emergency abortions prevents Idaho hospitals from complying with the federal requirement to provide stabilizing treatment in emergency situations. Though the Court dodged the question and sent the parties back to the lower courts for more litigation, it’s noteworthy that in briefing papers the Idaho legislature argued, among other things, that the federal government’s legal position offends the major-questions doctrine, both because of abortion’s “political and economic significance” and the statute’s generality. (Never mind that Moyle involves an enforcement action, not a regulation, to which the doctrine has never been understood to apply.) This is a sneak peak of what’s to come if we are to believe the leading voices of the conservative orthodoxy. The Becket Fund, a repeat-player before the Supreme Court with significant sway over conservative judges, now holds that any regulation that infringes on the group’s over-broad idea of religious liberty—citing as examples the ACA’s contraceptive coverage mandate and nondiscrimination protections for LGBTQ+ people—by definition presents a major question which can’t be resolved by an agency.

Second-guessing agency expertise

Even an agency that stays within its congressionally defined authority isn’t free to take any action it prefers. Agency decisions must also, among other things, be driven by facts and logic. This requirement comes from the APA, which bars agencies from taking actions that are  “arbitrary” or “capricious.” In the past, this language was held to mandate only a minimum standard of rationality for agency actions. In other words, an action was deemed rational if the agency could show even a loose relationship between the action and the relevant facts and circumstances. But from the 1970s onward, courts began using a more searching version of the arbitrary-and-capricious test. This trend culminated in a string of Supreme Court cases that set the somewhat higher bar that applies today: to pass muster, agencies “must examine the relevant data and articulate a satisfactory explanation” for their actions, “including a rational connection between the facts found and the choice made.”

Despite earning the nickname “hard look” review, the current test used by courts still gives agencies plenty of room to maneuver. True, courts are empowered to closely examine agency rationales and set side actions that are not adequately justified—for instance, when the agency fails to address a key question, ignores significant comments received in the rulemaking process, or draws conclusions that go against the evidence. But this doesn’t typically lead courts to upend agency actions. More often, unless there are obvious errors or omissions, courts tend to defer to agency explanations. This is especially true in cases involving difficult scientific or technical questions, which judges are ill-equipped to properly evaluate. The limited role of courts in scrutinizing agency explanations reflects a view that courts should, given their non-specialist nature, leave the task of policymaking to agencies.

In practice, though, judges who are reviewing agency explanations don’t always exercise this level of self-restraint, and it’s hard to avoid the impression that many departures from the norm have an ideological flavor. Consider Ohio v. Environmental Protection Agency, a case involving a hotly contested environmental regulation that was decided during the Supreme Court’s last term. The case has a complicated backstory. Basically, the Clean Air Act tells states to submit to the EPA plans to implement federal air quality standards. Any state whose plan fails to meet the Act’s requirements must instead comply with a federal implementation plan, the details of which are to be spelled out in EPA regulations. And that’s exactly what happened in the run up to Ohio v. EPA. More than 20 state plans weren’t found to meet the Act’s requirement to address the spillover of pollution into neighboring states, so the EPA began the lengthy process of disapproving them. 

While those disapprovals were pending, the EPA set out to finalize a regulation setting a federal plan for the affected states. During the regulation’s comment period, some commenters argued that the EPA was wrong to presuppose that all of its state plan disapprovals would go through, since, in their view, the disapprovals were legally flawed. The EPA responded by clarifying in its final regulation that the federal plan was “severable,” meaning it would remain intact even if it turned out that the EPA had been mistaken in some of its disapproval decisions. States and industry groups sued the EPA under the APA’s arbitrary-and-capricious standard, alleging the EPA didn’t fully address commenters’ concerns. They said that the EPA’s duty to address comments required more than a simple explanation that the federal plan was severable. An adequate response, they argued, would have explained why the federal plan’s underlying methodology wouldn’t collapse if any covered states were to drop out—even though no claim of this kind was raised by commenters during the rulemaking process. 

The Supreme Court, in a 5-4 decision, agreed with the challengers. The Court’s reasoning in Ohio v. EPA departed from the usual arbitrary-and-capricious analysis in key ways. The challengers’ arguments, for example, were held to a surprisingly low standard. It didn’t seem to matter that the questions now central to their case were never directly raised during the rulemaking process. It was enough that the comments could be stretched to suggest those questions, even if only by reading between the lines. The agency, on the other hand, faced a much higher standard. Even though a careful reader could discern that the federal plan was based on nationwide, not state-specific, data—a fact that could easily undercut the challengers’ arguments—this wasn’t deemed enough to satisfy the EPA’s duty to explain its policy. Only a direct and pre-packaged response would do. The majority’s inflexible approach in Ohio v. EPA, its willingness to nitpick the agency’s rationale and split hairs at the slightest excuse, is hard to square with the broader principle of deferring to agency expertise, especially when it involves scientific judgment. 

The trend exemplified by Ohio v. EPA, in which judges seem to apply an unusually strict version of the arbitrary-and-capricious test to advance their own policy goals, is already being tested in the reproductive health context. For example, in March, the Supreme Court decided Alliance for Hippocratic Medicine v. Food and Drug Administration. In that case, anti-abortion groups sued to block an FDA decision relaxing restrictions on the use of mifepristone, a drug used in medication abortion. The challengers alleged that the FDA’s decision was unreasonable based on the available evidence, violating the APA’s arbitrary-and-capricious standard. The government countered that not only were the challengers wrong on the facts, but also that the FDA’s findings on drug safety were precisely the kind of scientific judgments that shouldn’t be second-guessed. 

Ultimately, the Supreme Court disposed of Alliance for Hippocratic Medicine on technical grounds, sidestepping the more controversial questions about the FDA’s mifepristone decision. But, in one form or another, the core issues of the case are almost guaranteed to reappear before the Court. And when they do, precedents like Ohio v. EPA will make it easier for the Court’s conservative majority to brush aside agency expertise to enact their preferred outcome. The lower courts’ decisions in Alliance for Hippocratic Medicine provide something of a blueprint for this approach. The Fifth Circuit appeals court, in handing a preliminary win to the challengers, glossed over voluminous data on mifepristone’s safety to conclude that the FDA’s decision was unsupported by the evidence. It took little more than a few dubious studies and a general distrust of agency expertise for the court to cast doubt on the FDA’s exhaustive findings. 

Implicit in the Fifth Circuit’s analysis was the idea that any factual disagreement raised by challengers, regardless of its strength or persuasiveness, was an invitation for judges to upset the hard-won consensus of experts. Using a manufactured controversy to make it seem like there are two sides to a scientific question that’s actually settled—at least so far as experts are concerned—is a time-honored tactic of the anti-abortion right. By the 1990s, many conservative activists ditched moral arguments against abortion in favor of scientific-sounding rhetoric about its speculative harms to women’s health. The shift in argumentation allowed activist judges to use disagreement about abortion’s safety as a pretext to uphold limits on abortion access. Now, the same activists, practiced at cloaking their ideological opposition to reproductive freedom in scientific terms, are likely to marshal similar arguments against agency actions on reproductive health. And in the hands of ideologically-motivated judges, they’re poised to succeed—any contestation of an agency’s findings could become reason enough to send reproductive health regulations back to the drawing board.

Strategic considerations for policy advocacy

Those advocating for better reproductive health policy should think carefully about how these legal developments should factor into their goals, plans, and strategies. Though the strategic implications of these trends deserve more attention than is possible here, we can at least gesture at a path forward. 

To start, advocates should consider pushing for structural changes aimed at halting and unwinding the emerging anti-regulation framework. One forum for such changes, at least in principle, is the courts. Just as today’s anti-regulation philosophy grew out of court rulings, so too could it be undone by new ones that restore judicial deference towards agencies and reduce the role of judicial policy preferences in policing agency power. Of course, a sudden reversal by the courts on these issues is unlikely given the state of the federal bench. It would be necessary to appoint jurists with more balanced views on regulation from the Supreme Court on down to make real progress. The slow process of correcting the ideological skew of the courts could be accelerated under certain court reform proposals such as those that would impose term limits on federal judges. 

Another avenue for structural change is legislation. As we’ve seen, many of the problematic trends on regulation arise from judicial interpretations of laws passed by Congress, like the APA. But Congress is free to override faulty interpretations of its laws through legislative action. It could, for instance, correct the Loper Bright majority’s misreading of the APA by amending the law to explicitly reinstate Chevron-style deference. Or Congress could prevent courts from second-guessing agency expertise by placing explicit limits on the role of courts in administering the APA’s arbitrary-and-capricious test. 

If changes to the APA aren’t feasible, perhaps more modest legislative tweaks are. One option is for Congress to strengthen individual grants of agency power in order to protect them from being interpreted away by enterprising judges. For example, to clear the bar set by Loper Bright, Congress could revise ambiguous laws to make implicit delegations of power more explicit. This might entail the use of drafting techniques that the Loper Bright court recognized as clearer ways to vest agencies with discretionary power (e.g., using words like “reasonable” or “appropriate” which invite agency judgment, or explicitly charging agencies with the duty to define some statutory terms). Additionally, in order to dodge major-questions concerns, Congress could strengthen generic delegations of agency power by peppering them with specific examples of what Congress has in mind; legislators might, to recall an earlier example, specify that an agency is not only authorized to eat “any dessert it chooses” but that this specifically includes the power to eat “ice cream cones.”

But structural reform, if achievable at all, may take years or even decades to secure. So in the meantime, reproductive health advocates should also make tactical changes that maximize the impact of their advocacy within the current constraints. This starts with an understanding that agencies are likely to behave differently when confronted with the new legal risks associated with regulating. One potential danger is regulatory over-cautiousness. For instance, progressive administrations might be unwilling to issue needed regulations, especially if doing so would require creatively interpreting existing legislation or leveraging novel scientific and medical evidence, out of a fear of spending scarce resources on work that’s destined to be struck down. Administrations that oppose reproductive health access, on the other hand, might be emboldened to rescind existing regulations by claiming that they rely on untested interpretations of the law or contested findings of fact.

Let’s take regulatory over-cautiousness as an example to illustrate how advocacy plans should be modified to track changes in agency behavior. Over-cautious agency leaders will need to be convinced that legal hurdles to regulation are surmountable, likely objections are answerable, and their efforts have a good chance of surviving a legal challenge. Advocates can answer to this need by modifying their tactics in various ways. For example: 

• As discussed above, Loper Bright introduced a more demanding analysis for determining whether an agency has the power to regulate—an agency must now rely on the “correct” interpretation of an ambiguous law, not just a reasonable one. So advocates should put a greater focus on carefully collecting evidence and developing arguments that show why their preferred regulatory policy is based on an interpretation of the law that’s superior to competing interpretations. 
• We’ve also seen that courts applying the major-questions doctrine limit the doctrine’s application to circumstances where the extent of an agency’s claimed power is “exceptional,” “unheralded,” or “transformative.” It follows that advocates should explore whether it’s plausible to argue that the agency’s exercise of the authority in question, far from novel, is in fact a logical extension of the agency’s past practice. 
• And because courts are putting greater pressure on the explanations that agencies offer for their decisions, advocates should redouble their efforts to supply the best available technical information and argumentation to bolster the agency’s rulemaking record. In doing so, advocates should consider identifying and rebutting potential counterarguments from the other side that could be used by courts as a pretext to cast doubt on otherwise sound agency reasoning and findings, as seen in Ohio v. EPA.

Conclusion

As we’ve seen, the law puts boundaries around the regulatory powers of agencies. An agency, for example, doesn’t have the power to make regulations unless Congress says so. And any exercise of that duly granted power must be both reasonable and reasonably explained. Despite these limits, though, agencies have historically enjoyed a wide degree of flexibility to implement the law, with legal skirmishes over agency power confined to edge cases. But in recent years, courts have made unprecedented intrusions into the heartland of agency power. Today’s courts appear more willing than ever to scrutinize agency decisions that wouldn’t have so much as raised an eyebrow in the not-so-distant past. 

The judge-made doctrines that purport to justify this power grab threaten to suffocate a range of progressive priorities related to health, safety, and the environment. And these very doctrines are already being weaponized against reproductive health regulation. So policy advocates should consider modifying their goals and strategies in light of the heightened legal risk around regulation. They should not only seek reform at a structural level to address the root causes of the emerging anti-regulation framework, but also make deliberate changes to the way they advocate for policy change given the new constraints facing federal agencies.