Background

What is Loper Bright?

In June 2024, the Supreme Court of the United States (SCOTUS) ruled in Loper Bright Enterprises v. Raimondo. The ruling overturned a previous decision in the 1984 case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which set an important precedent about the regulatory powers of federal agencies.

In Chevron, SCOTUS established what was known as “Chevron deference,” which said that courts had to defer to federal agencies when it came to interpreting ambiguous laws. This meant that courts could not second guess agency action unless the action resulted from an unreasonable interpretation of the law. It was an important doctrine because it promoted efficiency and allowed experts at agencies to implement and enforce policy priorities without the constant threat of litigation.

By overruling Chevron deference, Loper Bright has ushered in a new era of federal administrative law and practice—one in which federal agencies may have diminished power to enforce and implement laws. Federal agencies play a key role in health care regulation, so Loper Bright has major implications for the protection of reproductive health and rights.

In the courts

What has happened in the courts since?

Since June 2024, courts have been implementing the Loper Bright decision to assess agency interpretations of federal statutes. While courts generally continue to side with agencies, including in health care related matters, some notable agency interpretations involving reproductive rights have been struck down.

• In Tennessee v. Becerra, Tennessee challenged the Department of Health and Human Services’ (HHS) decision under the Biden administration to rescind the state’s Title X funding after Tennessee announced it would not comply with a federal requirement that grantees provide abortion counseling and referrals. In this case, the 6th Circuit applied the Loper Bright framework and decided in HHS’ favor, holding that the requirement was consistent with the statutory framework of Title X and with longstanding, publicly articulated policy from HHS.
• Oklahoma challenged HHS over the same Title X requirement in Oklahoma v. Department of Health and Human Services, citing Loper Bright to support the claim that it did not have to defer to HHS on abortion counseling and referrals. Loper Bright itself clarified that it was not “call[ing] into question prior cases that [had] relied on the Chevron framework.” Regardless, the Oklahoma case was appealed to the Supreme Court, which vacated a lower court judgment and remanded the case for further consideration. Litigation is ongoing.
• In Purl v. HHS, District Court Judge Matthew Kacsmaryk of Northern Texas ruled in part based on Loper Bright that HHS exceeded its statutory authority under the Health Insurance Portability and Accountability Act (HIPAA) when it issued a new Privacy Rule to support reproductive health privacy in 2024.

Trump admin actions

How has Loper Bright impacted agency actions in the Trump administration?

The Trump administration has used Loper Bright both as a shield and a sword when taking agency actions. It has pursued a deregulatory agenda in the name of Loper Bright. At the same time, the administration seeks to expand Executive Branch powers in order to enact its agenda, which conflicts with the core tenet behind Loper Bright—to limit the power of Executive Branch agencies.

Specifically, the administration issued a memorandum, “Directing the Repeal of Unlawful Regulations,” which claims that agencies must systematically rescind all previous regulations without following standard notice and comment processes in order to “comply” with Loper Bright. But to enable this memorandum, Executive Branch agencies have issued sweeping orders to reverse previous administrations’ rulemaking, which directly contradicts a deregulatory agenda.

The Loper Bright decision explicitly preserved decisions made under the Chevron framework. However, with both the deregulation memo noted above and an Executive Order titled “Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative,” the Trump administration is actively seeking the reversal of regulations–including those upheld under the Chevron framework. It is attempting to use Loper Bright to slash regulations it disagrees with, even if they are legally sound.

Congressional response

How is Congress responding? 

Some Members of Congress are eager to use Loper Bright to severely limit agency actions. A Working Group of 20 Senate Republicans released a report focusing on legislative proposals, including using the Congressional Review Act, that would limit and prevent delegation, discretion, and deference to Executive Branch agencies in response to Loper Bright. As it relates to reproductive rights, the Working Group recommended potential reviews of Title X program rules, which could exacerbate the health inequities that the Title X program seeks to reduce.

What’s next?

What’s next? 

Advocacy organizations should continue to use all available tools to navigate the Loper Bright framework―notice and comment rulemaking, engaging with Congress to help craft specific legislation, and litigation as necessary.

Advocates should also consider how they can use Loper Bright to pierce through overreaching agency actions. The Center will continue to employ novel legal strategies, including administrative advocacy strategies, in this new Loper Bright era to protect and expand reproductive rights for all.

To learn more, read an article from Center staff recently published in the Harvard Journal of Law & Gender.