Regulations are a fundamental part of health policy. Congress legislates in broad terms and agencies fill in technical details on myriad issues, from how Medicaid eligibility is determined to how Medicare providers are paid to how new drugs are approved for market. A recent Supreme Court decision, Loper Bright v. Raimondo, changes the balance of power between courts and federal agencies when interpreting laws and reviewing regulations and also impacts “friend of the court” (or amicus) briefs. This blog post considers amicus briefs’ increased importance, and potential limitations, after the Loper Bright decision.
Loper Bright’s Impact
In Loper Bright, the Supreme Court announced that “courts must exercise independent judgment in determining the meaning of statutory provisions,” thereby overturning a 40-year-old precedent in Chevron U.S.A. v. Natural Resources Defense Council. Under Chevron, courts deferred to reasonable agency interpretations of ambiguous statutes. Loper Bright upends this balance, with agencies’ subject-matter expertise no longer trumping a court’s contrary interpretation of federal law. Writing for the majority, Chief Justice John Roberts sought to allay concern that courts lack the technical knowledge possessed by agencies to inform their interpretation of laws. He observed that when reviewing agency regulations, courts “do not decide such questions blindly” but instead benefit from the perspectives of amici “steeped in the subject matter.”
Loper Bright’s impact has been swift. Within five days, three courts rejected the U.S. Department of Health and Human Services’ (HHS) interpretation of the Affordable Care Act’s civil rights provision (Section 1557) as barring health care discrimination based on gender identity. HHS’s regulation is consistent with Supreme Court precedent and reflects extensive evidence amassed from public comment. But with the Chevron deference gone, courts were free to ignore the agency’s expert analysis, with the result that HHS cannot enforce these protections nationwide. The cases are being appealed; if the trial courts’ decisions become final, HHS won’t be able to remedy cases in which health care providers or insurers use a patient’s gender identity to deny necessary care or coverage, despite the agency’s expert conclusion that doing so adversely affects health and exacerbates inequities. In two months after Loper Bright, courts have overruled agencies’ interpretations of federal law in 22 of 26 cases.
The Importance of Amicus Briefs
Amicus briefs are written legal arguments filed by groups or individuals who aren’t directly involved in a case as a litigant but nevertheless have a vested interest in the outcome. They can offer courts subject matter expertise and insight, and it is imperative that they contain reliable evidence. The first amicus brief was filed more than 200 years ago; today, they are standard practice. The number of amicus briefs filed in Supreme Court cases has steadily increased, with 911 in the 2019–2020 term, an average of 16 per argued case. Mega-cases (with more than 30 amicus briefs) are increasingly common and often concern public health and civil rights issues. For example, there were 136 amici filings in National Federation of Independent Business v. Sebelius, the case upholding the constitutionality of the Affordable Care Act’s health insurance mandate. Nearly 140 amicus briefs were filed in Dobbs v. Jackson Women’s Health Organization, the case overturning Roe v. Wade (which received 23 amici filings 50 years earlier).
Amicus briefs demonstrably influence case outcomes. During its 2019–2020 term, the Supreme Court cited amicus briefs in 65 percent of its opinions, with “every single justice cit[ing] a brief by professors in at least one of their opinions.” The presence of a single amicus brief in support of a party’s Supreme Court appeal significantly increases the likelihood that the Court will hear the case. Research shows that a larger number of amici filings in support of a party increases the likelihood of both a decision in that party’s favor and of concurring and dissenting opinions.
How Amicus Briefs Impact Court Decisions
At their best, amicus briefs provide courts with scientific, technical, statistical, historical, and other real-world information to explain the consequences of decisions. Justices typically include language from amicus briefs to support or contextualize their opinions. For example, a brief by 547 public health scholars detailing the adverse health impacts of granting states authority over abortion policy was cited six times by the Dobbs dissent. Amicus briefs also offer narratives that humanize issues. Whole Woman’s Health v. Hellerstedt, a 2016 case concerning state efforts to limit abortion access, had 45 amici filings from a variety of groups, including one from more than 100 women in the legal profession who had experienced abortions.
It is critical that the information in amicus briefs is reliable, since courts, unlike agencies, lack the expertise to evaluate the quality of technical evidence. Loper Bright’s directive that courts no longer defer to agencies increases the risk that courts will get important matters wrong. This can create confusion, as illustrated by the recent revision of a Supreme Court decision that mistook nitrogen oxide for nitrous oxide. The stakes in health care cases are frequently much higher; in overturning the FDA’s approval of mifepristone as a safe and effective means of medication abortion, a trial court relied on a flawed study that was contained in an amicus brief authored by abortion opponents and subsequently retracted by its publisher.
With courts now free to disregard agencies’ expert interpretations, policymakers can expect to see the influence of amicus briefs grow. Consequently, it is crucial that people directly affected by health and civil rights laws have the opportunity to contribute their experience and expertise through amicus briefs to foster informed legal decision-making.
