By Liz McCaman Taylor, Manasi Raveendran, and Vidhi Bamzai*<\/p>\n\n\n\n
Federal agencies are vital tools for the execution of legislation enacted by Congress, despite frequent condemnation as a mere means of presidential overreach into the legislative process. The Supreme Court of the United States recognizes Congress\u2019 power to establish federal agencies under Article I of the Constitution, along with the powers, duties, and functions of those agencies.[1]<\/sup><\/p>\n\n\n\n In 1984,\u00a0Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.<\/em>\u00a0formally established a legal doctrine that allowed Congress to empower agencies to implement and execute legislation.[2]<\/sup>\u00a0\u00a0Chevron\u00a0<\/em>had been the guiding principle of administrative law for 40 years.\u00a0Under\u00a0Chevron<\/em>, the Supreme Court established a form of judicial deference called \u201cChevron<\/em>\u00a0deference,\u201d which granted executive agencies wide latitude to interpret legislation that it had been tasked to execute.\u00a0In June 2024, after years of attempts to chip away at agencies\u2019 authority to conduct their work, the Supreme Court issued its long-awaited opinion in\u00a0Loper Bright Enterprises v. Raimondo<\/em>, overturning\u00a0Chevron\u00a0<\/em>deference and ending administrative law as we then knew it.[3]<\/sup><\/p>\n\n\n\n Without the judicial guideposts of\u00a0Chevron\u00a0<\/em>deference, it may become more difficult for agencies to execute Congressional charges. Agencies\u2019 work is likely to become more challenging given this presidential administration\u2019s dedication to restricting the power of the administrative state, especially in the reproductive rights space.\u00a0\u00a0<\/p>\n\n\n\n Following the Supreme Court\u2019s decision in\u00a0Dobbs v. Jackson Women\u2019s Health Organization<\/em>, which overturned\u00a0Roe v. Wade<\/em>\u2019s\u00a0<\/em>protection of abortion as a federal Constitutional right, administrative agencies undertook much of the federal work to protect and expand access to reproductive care.[4]<\/sup>\u00a0Without\u00a0Chevron<\/em>, the authority of many of these agencies to\u00a0execute minute elements of legislation, which may not have been directly addressed by Congress,\u00a0will be in question. Federal agencies may be unable or unwilling to effectively and efficiently advance reproductive rights, including access to abortions, in part because their decisions will likely be subject to judicial interference.\u00a0<\/p>\n\n\n\n Although the loss of\u00a0Chevron<\/em>\u00a0deference is a devastating blow, it is not the end of the administrative state or of administrative advocacy to protect and advance reproductive freedom. Through innovative techniques and strategy, advocates can continue to successfully fight for reproductive rights.<\/p>\n\n\n\n I. Federal Agencies: The Executive Branch Backbone\u00a0<\/p>\n\n\n\n Federal agencies are the mechanism through which federal laws are implemented and enforced. Congress can direct an agency to implement and enforce laws that fall under that agency\u2019s specific expertise. In simple terms, Congress makes and enacts laws. Agencies take those laws and promulgate rules to implement the laws passed by Congress. Once implemented, agencies can also enforce those rules.\u00a0Note that agencies do not have free rein to conduct their work. Rather, they are subject to checks and balances\u00a0like any other part of the federal government and are ultimately accountable to the President and to Congress.<\/p>\n\n\n\n Because agencies\u00a0typically\u00a0consist of dedicated subject matter experts who can provide reasonable and appropriate interpretations of Congressional statutes,\u00a0Chevron<\/em>\u00a0deference was essential to the work of federal agencies. Under\u00a0Chevron<\/em>, agencies had the authority to make reasonable interpretations where legislative delegation on a particular issue or question was implicit. The reasonable interpretation standard granted agencies wide berth to address issues that fell under their purview, making judicial clearance unnecessary. For example, agencies such as the Department of Health and Human Services (\u201cHHS\u201d) aided in the implementation of the Affordable Care Act. Without HHS, it would have been impossible for Congress and the President to implement the specific and minute details of this sweeping reform.\u00a0<\/p>\n\n\n\n Since\u00a0Dobbs<\/em>, agencies have ensured the safety and expansion of reproductive rights. Although the federal Constitutional right to an abortion was overturned by\u00a0Dobbs<\/em>,\u00a0agencies can help to protect existing access to reproductive care while ensuring that those who seek care are safe from investigation and prosecution. Agencies can also expand access to care for eligible individuals through the following non-exhaustive avenues:[5]<\/sup> Agencies impact the lives of many.\u00a0Prior to President Trump\u2019s inauguration on January 20, 2025, it was anticipated that agencies would continue to operate post-Chevron<\/em>,\u00a0with the expectation that\u00a0many important policies, especially those related to reproductive rights issues, may be subject to interrogation by a highly politicized Court.[14]<\/sup>\u00a0However, executive actions and statements made by the President and his advisors demonstrate that the mere existence of agencies is no longer guaranteed. President Trump and his administration have introduced mass firings and funding cuts, including the total dismantling of the U.S. Agency for International Development (\u201cUSAID\u201d).[15]<\/sup>\u00a0The consequences of these actions are ongoing. While rules and regulations finalized under previous administrations are always at risk in a new administration, these unprecedented changes make the risks greater and less predictable.\u00a0<\/p>\n\n\n\n II. Post-Chevron<\/em>\u00a0Case Law<\/p>\n\n\n\n Loper Bright<\/em>\u00a0is sure to spark legal challenges to cases that applied\u00a0Chevron<\/em>\u00a0deference and to agency regulations more generally. The Biden administration finalized several rules that help expand access to abortion and protect reproductive health data.[16]<\/sup>\u00a0The end of\u00a0Chevron\u00a0<\/em>deference puts policies like these at risk because anti-abortion lawyers and courts may feel secure and motivated that judicial momentum leans toward viewing progressive agency actions skeptically.\u00a0Loper Bright\u00a0<\/em>has already been cited in ongoing litigation regarding the Equal Employment Opportunity Commission\u2019s (\u201cEEOC\u2019s\u201d) rule implementing the Pregnant Workers Fairness Act (\u201cPWFA\u201d), the Office for Civil Rights\u2019 rule providing reproductive health privacy protections under the Health Information Portability and Accountability Act (\u201cHIPAA\u201d), and the Office of Population Affairs\u2019 (\u201cOPA\u2019s\u201d) rule governing the Title X Family Planning Program, all rules promulgated by the Biden Administration.[17]<\/sup>\u00a0The Biden administration also proposed, but did not finalize, several rules to expand access to reproductive health care, including two rules expanding contraceptive coverage.[18]<\/sup>\u00a0\u00a0Although the Biden administration\u2019s reason for withdrawing the rules is not public, the post-Chevron<\/em>\u00a0landscape, along with the changing presidential administration, clearly put contraceptive access policies at increased risk.\u00a0<\/p>\n\n\n\n A. Pregnant Workers Fairness Act<\/p>\n\n\n\n The EEOC rule entitles workers to a range of pregnancy-related accommodations, including time off for childbirth, abortion, miscarriage, and fertility treatments.[19]<\/sup>\u00a0Shortly after the rule\u2019s finalization, Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia launched a legal challenge under the Administrative Procedure Act (\u201cAPA\u201d).[20]<\/sup><\/p>\n\n\n\n Pre-Loper Bright<\/em>, the United States District Court for the Eastern District of Arkansas ultimately held that the complaint should be dismissed, in part because the EEOC was entitled to\u00a0Chevron\u00a0<\/em>deference. However, the District Court acknowledged \u201c[t]hat legal rule may change soon\u201d under\u00a0Loper Bright<\/em>.[21]<\/sup>\u00a0After\u00a0Loper Bright<\/em>, plaintiffs appealed the District Court\u2019s decision, and there is a real risk that the fall of\u00a0Chevron\u00a0<\/em>may change the way that courts view the legitimacy of the EEOC\u2019s rulemaking.[22]<\/sup><\/p>\n\n\n\n B. HIPAA<\/p>\n\n\n\n Loper Bright\u00a0<\/em>has also been cited in ongoing litigating regarding the 2024 HIPAA Privacy Rule, which provides heightened protections for reproductive health data.[23]<\/sup>\u00a0Four separate lawsuits have been filed against the rule, three of which cite to\u00a0Loper Bright\u00a0<\/em>in filings. In Tennessee\u2019s case against the rule, the state cites\u00a0Loper Bright\u00a0<\/em>to argue that HHS lacks clear authority to craft the disclosure requirements in the rule.[24]<\/sup>\u00a0Similarly in Texas\u2019 case against the rule, the state argues that HHS is entitled to no deference under\u00a0Loper Bright<\/em>.[25]<\/sup><\/p>\n\n\n\n Ultimately, the rule was overturned in a Texas case brought by an individual, Dr. Carmen Purl, an anti-abortion physician in Texas who claimed that the 2024 Privacy Rule prevents her from making child abuse reports to state authorities when young people have accessed abortion or gender-affirming care.[26]<\/sup>\u00a0In that case, the court ordered the parties to file supplemental briefing explaining how\u00a0Loper Bright\u00a0<\/em>affected HHS\u2019 authority to issue the 2024 Rule.[27]<\/sup>\u00a0In their Motion for Summary Judgment, plaintiffs cite\u00a0Loper Bright\u00a0<\/em>to argue that HHS is not entitled to deference on its interpretation of state public health disclosure limits that supports the 2024 Rule.[28]<\/sup>\u00a0Of note, this case was filed in the Amarillo Division of the Northern District of Texas, where the majority of cases are assigned to Judge Matthew Kacsmaryk, an anti-abortion Trump appointee.[29]<\/sup>\u00a0Judge Kacsmaryk seemingly agreed with plaintiffs when he vacated the 2024 HIPAA Privacy Rule and dealt a blow to reproductive rights, ruling in part based on\u00a0Loper Bright<\/em>.[30]<\/sup><\/p>\n\n\n\n C. Title X Family Planning Program<\/p>\n\n\n\n Title X is a federal grant program established under the Public Health Service Act in 1970.[31]<\/sup>\u00a0Title X was signed into law by President Nixon and is funded annually by Congress through the appropriations process; in fiscal year 2025, Congress appropriated $286.5 million to HHS for the administration of Title X.[32]<\/sup>\u00a0The grants are issued by HHS\u2019 OPA and support clinical family planning services, patient and public education, research, and training for family planning providers and staff.[33]<\/sup>\u00a0Title X \u201cis the only dedicated source of federal funding for domestic family planning\u201d and \u201cis critical to maintaining access to services,\u201d particularly for low-income and uninsured people.[34]<\/sup><\/p>\n\n\n\n In 2019, the Trump administration finalized a new rule governing Title X. The rule \u201csubstantially diminished the Title X family planning network by disqualifying family planning clinics with co-located abortion services and disallowing the provision of abortion referrals to clients that wanted them.\u201d[35]<\/sup>\u00a0As a result, the number of clients served fell from 3.9 million to 1.5 million from 2018 to 2020, with an estimated 63% of the reduction (approximately 1.5 million clients) attributed directly to the 2019 rule restrictions.[36]<\/sup><\/p>\n\n\n\n In 2021, the Biden administration finalized a replacement regulation which restored many of the aspects of the program to their pre-2019 state. The replacement regulation reinstated the ability to co-locate abortion services, the requirement to provide nondirective counseling and referrals for all family-planning options (including abortion), and adolescent confidentiality protections that encourage, but do not require, parental involvement.[37]<\/sup><\/p>\n\n\n\n Multiple states with severe abortion restrictions and other anti-abortion intervenors filed suit against the Biden administration\u2019s 2021 rule under the APA, objecting particularly to reinstatement of the requirement to provide nondirective counseling and referrals for abortion. In one such case,\u00a0Oklahoma v. Department of Health and Human Services<\/em>, in a brief filed by the American Association of Pro-Life Obstetricians & Gynecologists, the Christian Medical & Dental Associations, the Catholic Medical Association, and the National Association of Catholic Nurses, amici foreshadowed that \u201cChevron<\/em>\u00a0may not remain good law for long,\u201d in which case the \u201cCourt should employ traditional tools of statutory interpretation and hold that the referral requirement\u201d was illegal.[38]<\/sup>\u00a0The Tenth Circuit disagreed, finding that the Title X statute was silent on the issue of counseling and referrals; accordingly, the Tenth Circuit deferred to the Supreme Court holding in\u00a0Rust v. Sullivan<\/em>, which held that HHS\u00a0could<\/em>\u00a0enact requirements on counseling and referrals.[39]<\/sup>\u00a0Notably,\u00a0Rust v. Sullivan\u00a0<\/em>applies the two-part\u00a0Chevron\u00a0<\/em>test. In a footnote, the Tenth Circuit caveats that despite\u00a0Chevron\u00a0<\/em>being overturned, the\u00a0Rust v. Sullivan\u00a0<\/em>holding should stand because\u00a0Loper Bright\u00a0<\/em>clarified that it was not \u201ccall[ing] into question prior cases that [had] relied on the\u00a0Chevron<\/em>\u00a0framework.\u201d[40]<\/sup><\/p>\n\n\n\n In its emergency appeal to the Supreme Court, Oklahoma took issue with the Tenth\u00a0Circuit\u2019s (non)application of\u00a0Loper Bright<\/em>, requesting \u201ceither a grant of certiorari or a remand to evaluate the case more fully in light of\u00a0Loper Bright<\/em>.\u201d[41]<\/sup> Oklahoma described the 2021 Title X rule as part of an \u201cexpansive view of the federal bureaucracy’s rulemaking power\u201d that \u201cis inconsistent with this Court’s recent decision [in\u00a0Loper Bright<\/em>].\u201d[42]<\/sup>\u00a0The Supreme Court ultimately denied the writ, but three justices, Justices Thomas, Alito, and Gorsuch, noted that they would have granted the application.[43]<\/sup><\/p>\n\n\n\n Oklahoma subsequently asked the Supreme Court to review the case on the merits; in its petition for review, Oklahoma again cited\u00a0Loper Bright\u00a0<\/em>to support its claim that \u201cthe Tenth Circuit\u2019s perfunctory analysis is likely incorrect.\u201d[44]<\/sup>\u00a0This time the Court granted the writ, vacated the lower court judgment, remanded the case for further consideration, and ordered HHS to pay Oklahoma attorneys\u2019 fees.[45]<\/sup>\u00a0As of publication, litigation is ongoing. Additionally, litigation against the 2021 Title X rule continues in Tennessee, where the state argues that the rule is contrary to the law that created Title X.[46]<\/sup>\u00a0Notably, T. Elliot Gaiser, former Ohio Solicitor General and current Assistant Attorney General in the Department of Justice\u2019s Office of Legal Counsel, filed an amicus brief in this case in support of Tennessee\u2019s petition for a rehearing in the Sixth Circuit; the amicus specifically asks the full circuit court to \u201ccorrect the panel\u2019s misreading of\u00a0Loper Bright<\/em>.\u201d[47]<\/sup>\u00a0While the Sixth Circuit has been steadfast that \u201cLoper Bright\u00a0<\/em>declined to \u2018call into question prior cases that relied on the\u00a0Chevron\u00a0<\/em>framework,\u2019\u201d Tennessee has gone so far as to petition the Supreme Court for a writ of certiorari that extensively cites\u00a0Loper Bright<\/em>.[48]<\/sup>\u00a0While the writ has not been granted, it is likely (given the writ that was granted in the Oklahoma Title X litigation) that more APA litigation on a number of longstanding health care issues, including abortion, contraceptive access, and gender-affirming care, will continue in the second Trump administration.[49]<\/sup>\u00a0Furthermore, as litigation proceeds, the Trump administration is moving forward with a new Title X rule, which will further complicate the role of\u00a0Loper Bright\u00a0<\/em>in administering the Title X program.[50]<\/sup><\/p>\n\n\n\n III. Post-Chevron<\/em>\u00a0Policy & Advocacy<\/p>\n\n\n\n The post-Chevron\u00a0<\/em>era, much like the post-Roe\u00a0<\/em>era, is full of legitimate fears and unknowns. As all three branches of government grapple with their role in policymaking, advocates can leverage several legal tools to defend, protect, and advance reproductive freedom.<\/p>\n\n\n\n A. Congress<\/p>\n\n\n\n Post-Chevron<\/em>, it is more critical than ever that Congress pass clear legislation. In fact,\u00a0Loper Bright<\/em>\u00a0recognizes that Congress can expressly delegate to an agency the authority to give meaning to a particular statutory term.[51]<\/sup>\u00a0According to the Court, in these situations, \u201ccourts must respect the delegation, while ensuring that the agency acts within it.\u201d[52]<\/sup><\/p>\n\n\n\n There are already multiple statutes impacting reproductive rights that contain delegations of authority. For example, the Medicaid Act governs the Medicaid program, which provides health insurance coverage to low-income people and is the largest payer of reproductive health coverage in the United States, paying for 75% of publicly-funded family planning care and pregnancy care for 41.3% of people giving birth.[53]<\/sup>\u00a0The statutes governing the program delegate multiple authorities to the HHS Secretary, such as generally publishing rules and regulations and expressly approving state Medicaid plans.[54]<\/sup><\/p>\n\n\n\n Similarly, the Title X statutes authorize the HHS Secretary to expressly make grants and enter into contracts, as well as generally promulgate regulations.[55]<\/sup>\u00a0Likewise, HIPAA authorizes the HHS Secretary to promulgate regulations containing privacy standards for individually identifiable health information.[56]<\/sup>\u00a0These delegations may be important safeguards for these programs when challenged under\u00a0Loper Bright<\/em>; the more specific the delegation, the more likely it is to withstand an APA challenge.[57]<\/sup><\/p>\n\n\n\n In this vein, it would behoove advocates to work closely with Congressional allies to ensure that statutes are clearly and directly written to give express authority to federal agencies for specific implementation and enforcement tasks. Advocates should also encourage Congress to meet with agencies and receive detailed technical assistance before passing legislation, to ensure that any bill is specific enough for agency staff to implement. It must be emphasized that Congress has neither the expertise nor the time to do the everyday work of implementation and enforcement.\u00a0 B. Agency Policymaking<\/p>\n\n\n\n Loper Bright\u00a0<\/em>is alarming for federal agency work, but not a death knell. The factual determinations made by federal agencies and their application of law to these facts are still entitled to deference, unless their actions are arbitrary and capricious. The deference that was revoked under\u00a0Loper Bright\u00a0<\/em>related only to an agency\u2019s\u00a0interpretation<\/em>\u00a0of the law. Federal agencies can still exercise discretion; however, when exercising discretion, agencies must take great care to explicitly tie their policies and actions to the words of an authorizing statute and avoid justifying policies with selective references to the statute.<\/p>\n\n\n\n In the Trump administration\u2019s recent notice about the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (\u201cPRWORA\u201d), HHS cited\u00a0Loper Bright<\/em>\u00a0to claim that the \u201cDepartment has no power to override Congress\u2019s will, expressed in the clear statutory text of PROWRA.\u201d[58]<\/sup>\u00a0Based on this claim and based on unclear legislative history, HHS reversed nearly 30 years of consistent statutory legal interpretation about who would be able to access critical health care programs.<\/p>\n\n\n\n As federal agencies promulgate regulations and guidance post-Chevron<\/em>, like the PRWORA notice, it is vital that advocates continue to engage in the rule-making process. Interested members of the public should submit comments on proposed policies to federal agencies during notice and comment periods.\u00a0Additionally, there may be circumstances where an agency issues an \u201cinterim final rule.\u201d It is especially important for advocates to submit comments during the post-promulgation period of interim final rules as these rules immediately carry the full effect and weight of the law.[59]<\/sup> C. Judiciary<\/p>\n\n\n\n As discussed above in Section II, litigation against federal agencies under\u00a0Loper Bright\u00a0<\/em>has already begun and will certainly continue. However, as demonstrated by the Title X cases,\u00a0Loper Bright\u00a0<\/em>does not guarantee that federal agency action will fall. In fact,\u00a0Loper Bright\u00a0<\/em>itself says that \u201c[c]areful attention to the judgment of the Executive Branch may help inform that inquiry.\u201d[60]<\/sup>\u00a0Additionally,\u00a0Skidmore v. Swift & Co.<\/em>\u00a0remains good law, holding\u00a0 Reproductive health, rights, and justice advocates can also think proactively about how to use\u00a0Loper Bright\u00a0<\/em>to their advantage in litigation. Particularly under an administration that is hostile to reproductive rights,\u00a0Loper Bright\u00a0<\/em>may present an \u201csword\u201d to challenge federal actions that illegally restrict abortion, contraception, in vitro fertilization, or maternal health care.<\/p>\n\n\n\n IV. Conclusion<\/p>\n\n\n\n The overruling of\u00a0Chevron<\/em>\u00a0deference is not a direct attack on reproductive rights, yet it does present new opportunities to whittle away basic rights, particularly reproductive rights. Congressional interference or micromanagement, coupled with increased administrative delays and litigation, will inevitably be weaponized to attack a host of evidence-based reproductive health care practices. Although attacks on reproductive rights are nothing new, the public health crisis created by the overturning of\u00a0Roe v. Wade\u00a0<\/em>will only worsen if\u00a0experts in\u00a0federal agencies are unable to regulate in their areas of expertise on important reproductive health programs like Medicaid and Title X.<\/p>\n\n\n\n Nonetheless, advocates must not abandon administrative advocacy. The post-Chevron\u00a0<\/em>environment presents an opportunity to think creatively about novel policy and litigation approaches to protect and expand federal reproductive rights. If the reproductive health, rights, and justice movements * Liz McCaman Taylor is a Senior Federal Policy & Advocacy Counsel with the Center for Reproductive Rights (\u201cCenter\u201d). Manasi Raveendran and Vidhi Bamzai are Federal Policy & Advocacy Counsels with the Center. Founded in 1992, the Center is the only global legal advocacy organization dedicated to reproductive rights, and its litigation and advocacy has played a key role in expanding access to reproductive health care around the world.<\/p>\n\n\n\n [1]<\/sup>\u00a0See<\/em>\u00a0Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 500 (2010) (\u201cCongress has plenary control over the salary, duties, and even existence of executive offices.\u201d); Myers v. United States, 272 U.S. 52, 129 (1926) (\u201cTo Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed and their compensation . . . .\u201d).<\/p>\n\n\n\n [2]<\/sup>\u00a0See<\/em>\u00a0467 U.S. 837, 843\u201344 (1984) [hereinafter \u201cChevron<\/em>\u201d].<\/p>\n\n\n\n [3]<\/sup>\u00a0See<\/em>\u00a0144 S. Ct. 2244, 2272\u201373\u00a0(2024) [hereinafter \u201cLoper Bright<\/em>\u201d].<\/p>\n\n\n\n [4]<\/sup>\u00a0See\u00a0<\/em>142 S. Ct. 2228, 2242\u00a0(2022) [hereinafter \u201cDobbs<\/em>\u201d].<\/p>\n\n\n\n [5]<\/sup> It should be noted that agencies usually reflect the platform and policies of the current presidential administration. Samira Damavandi, Anna Bernstein & Amy Friedrich-Karnik,\u00a0A Guide to US Federal Agencies and Their Impact on Sexual and Reproductive Health and Rights<\/em>,\u00a0Guttmacher Inst.,\u00a0https:\/\/www.guttmacher.org\/fact-sheet\/guide-us-federal-agencies-and-their-impact-sexual-and-reproductive-health-and-rights <\/a>[https:\/\/perma.cc\/5VPS-45HB<\/a>].\u00a0<\/p>\n\n\n\n [6]<\/sup>\u00a0See, e.g.<\/em>,\u00a0Information about Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation<\/em>, U.S.\u00a0Food & Drug Admin.(Jan. 17, 2025),\u00a0https:\/\/www.fda.gov\/drugs\/postmarket-drug-safety-information-patients-and-providers\/information-about-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation<\/a>\u00a0[https:\/\/perma.cc\/EP33-3DUF<\/a>].\u00a0<\/p>\n\n\n\n [7]<\/sup>\u00a0Supplement Approval Letter to HRA Pharma<\/em>,\u00a0<\/em>U.S.\u00a0Food & Drug Admin.\u00a0(July 13, 2023),https:\/\/www.accessdata.fda.gov\/drugsatfda_docs\/appletter\/2023\/017031Orig1s041ltr.pdf<\/a>\u00a0[https:\/\/perma.cc\/FU7Z-E9XZ<\/a>].\u00a0\u00a0<\/p>\n\n\n\n [8]<\/sup>\u00a0About Us<\/em>,\u00a0Off. for C.R., U.S. Dep\u2019t of Health & Hum. Servs.\u00a0(Dec. 17, 2024), https:\/\/www.hhs.gov\/ocr\/about-us\/index.html<\/a> [https:\/\/perma.cc\/3HGT-BW2G<\/a>];\u00a0see, e.g.<\/em>, 45 C.F.R. pts. 160, 164 (commonly known as the HIPAA Privacy, Security, Breach Notification, and Enforcement Rules).<\/p>\n\n\n\n [9]<\/sup>\u00a0HIPAA Privacy Rule to Support Reproductive Health Care Privacy, 89 Fed. Reg. 32976, 33063 (Apr. 26, 2024) (codified at 45 C.F.R. pts. 160, 164) [hereinafter HIPAA Privacy Rule].\u00a0But see<\/em>\u00a0Purl v. Dep\u2019t of Health and Hum. Servs., No. 2:24-cv-00228-Z (N.D. Tex. July 3, 2025) (vacating the rule).<\/p>\n\n\n\n \u00a0[10]<\/sup>\u00a0Cong. Rsch. Serv., IF12352,\u00a0Assistant Secretary for Technology Policy\/Office of the National Coordinator for Health Information Technology (ASTP\/ONC)\u00a01 (2025).<\/p>\n\n\n\n [11]<\/sup>\u00a0See<\/em>\u00a045 C.F.R. pt. 171.<\/p>\n\n\n\n [12]<\/sup>\u00a038 C.F.R.\u00a0\u00a7\u00a7 17.38(c), 17.272(a)(58).<\/p>\n\n\n\n [13]<\/sup>\u00a090 Fed. Reg. 36415 (Aug. 4, 2025).<\/p>\n\n\n\n [14]<\/sup>\u00a0What does SCOTUS\u2019s \u201cChevron Deference\u201d ruling mean for the future of federal reproductive rights?<\/em>,\u00a0Ctr. for Reprod. Rights\u00a0(Sept. 9, 2024),\u00a0https:\/\/reproductiverights.org\/scotus-chevron-deference-reproductive-rights\/<\/a>\u00a0[https:\/\/perma.cc\/UYL5-7CSV<\/a>];\u00a0see also<\/em>\u00a0Kate Blackwood,\u00a0A politicized Supreme Court meets a new moment for America<\/em>,\u00a0Cornell Chron.\u00a0(Nov. 26, 2024),\u00a0https:\/\/government.cornell.edu\/news\/politicized-supreme-court-meets-new-moment-america<\/a>\u00a0[https:\/\/perma.cc\/U3YG-47V2<\/a>].\u00a0<\/p>\n\n\n\n [15]<\/sup>\u00a0Repro Red Flags: Trump\u2019s First 100 Days<\/em>,\u00a0Ctr. for Reprod. Rights\u00a05\u20136, 11, 13\u00a0(Apr. 2025),\u00a0https:\/\/reproductiverights.org\/wp-content\/uploads\/2025\/04\/100days-RedFlags.pdf<\/a>\u00a0[https:\/\/perma.cc\/J6GJ-6WRS<\/a>].\u00a0<\/p>\n\n\n\n [16]<\/sup>\u00a0See, e.g.<\/em>,\u00a038 C.F.R. \u00a7\u00a7 17.38(c), 17.272(a)(58); HIPAA Privacy Rule,\u00a0supra\u00a0<\/em>note 9.\u00a0<\/p>\n\n\n\n [17]<\/sup>\u00a0See<\/em>\u00a0supra\u00a0<\/em>Part II.A\u2013C; 42 U.S.C. \u00a7 2000gg et seq.<\/p>\n\n\n\n [18]<\/sup>\u00a0See<\/em>\u00a0Enhancing Coverage of Preventive Services Under the Affordable Care Act, 89 Fed. Reg. 85750 (Oct. 28, 2024); Coverage of Certain Preventive Services Under the Affordable Care Act, 88 Fed. Reg. 7236 (Feb. 2, 2023).\u00a0\u00a0<\/p>\n\n\n\n [19]<\/sup>\u00a0See<\/em>\u00a029 C.F.R. \u00a7 1636 (2024).\u00a0\u00a0<\/p>\n\n\n\n [20]<\/sup>\u00a0Tennessee v. Equal Emp. Opportunity Comm\u2019n, 737 F.Supp.3d 685 (E.D. Ark. 2024). The Administrative Procedure Act (\u201cAPA\u201d) is a federal statute that establishes the process and procedures for agency rulemaking and adjudication, along with standards for judicial review of final agency actions. Todd Garvey,\u00a0A Brief Overview of Rulemaking and Judicial Review<\/em>,\u00a0Cong. Rsch. Serv.\u00a0(Mar. 27, 2017),\u00a0https:\/\/crsreports.congress.gov\/product\/pdf\/R\/R41546<\/a>\u00a0[https:\/\/perma.cc\/S3DU-L86H<\/a>].\u00a0<\/p>\n\n\n\n [21]<\/sup>\u00a0Tennessee v. Equal Emp. Opportunity Comm\u2019n, 737 F.Supp.3d at 699.<\/p>\n\n\n\n [22]<\/sup>\u00a0In a separate case, a district court judge vacated under the APA the portion of the EEOC rule providing abortion accommodations but did not provide any noteworthy citations to\u00a0Loper Bright.\u00a0<\/em>Louisiana v.\u00a0Equal Emp. Opportunity Comm\u2019n, No. 6:24-cv-00647 (W.D. La. May 21, 2025).<\/p>\n\n\n\n
<\/p>\n\n\n\n\n
Express delegations of authority give agencies more room to exercise their judgment and expertise on issues that fall under their direct purview.However, given that both chambers of Congress, and the Executive Branch, are under Republican control, it is important to note that there are risks of express delegation. Congress could choose to adopt specific language that could harm access to reproductive care, and these delegations could withstand APA challenges because of their specificity. That risk is all the more reason for advocates to work closely with allies who can use legislative and political tools to prevent harmful delegations of authority.\u00a0<\/p>\n\n\n\n
Public comments build a strong administrative record in support of or against the commenter\u2019s point of view, which is crucial evidence in potential litigation.<\/p>\n\n\n\n
that agency interpretations based on specialized experience can inform court judgments.[61]<\/sup>\u00a0Some longstanding statutes and programs, like Medicaid, have a significant body of case law applying\u00a0Skidmore<\/em>\u00a0behind them, instilling hope that courts will continue to give respect to the interpretations of public health experts.[62]<\/sup><\/p>\n\n\n\n
\u00a0can adopt new strategies to ensure that rulemaking is well-supported then the movement will be well-positioned to continue fighting for fundamental reproductive rights.<\/p>\n\n\n\n
\n\n\n\n