What does SCOTUS’s “Chevron Deference” ruling mean for the future of federal reproductive rights?

Near the end of its 2023-24 term, the Supreme Court of the United States (SCOTUS) issued a long-awaited opinion in Loper Bright Enterprises v. Raimondo, overturning what is known as the Chevron deference. The doctrine required courts to defer to an agency’s interpretation of a statute when the statute was ambiguous—and SCOTUS’s ruling is expected to curtail the power of federal agencies to set rules and enforce protections on a range of issues.

What are the implications for federal agencies that ensure reproductive rights? 

The Role of Federal Agencies

Federal agencies are the mechanism through which federal laws are implemented and enforced. Importantly, agencies serve specialized purposes, relying on the proficiency of dedicated agency staff with subject matter expertise.

Several agencies are involved in regulating reproductive rights and health. For example:

• The Food and Drug Administration regulates reproductive and sexual health drugs such as birth control and abortion medication.
• The Department of Health and Human Services (HHS) Office for Civil Rights implements and enforces federal laws which keep sensitive reproductive health information private and secure.
• The Department of Veterans Affairs is responsible for veterans’ health benefits and provides abortion access for veterans.

As issues arise, agencies can respond quickly to ensure rights are protected in line with their statutory authority. 

About Chevron Deference

In the 1984 landmark case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court established what was known as “Chevron deference.” Essentially, courts could not second guess agency action unless the action resulted from an unreasonable interpretation of law.

Chevron deference was an important doctrine because it promoted efficiency and allowed experts to implement and enforce policy priorities without a constant threat of litigation. However, with the June 2024 Loper Bright decision overruling Chevron deference, the prospect of dwindling agency authority is looming.

The Impact of the Ruling: Litigation, Delays, and Opportunities to “Whittle Away” Rights

While the decision does not mean that agencies cannot operate or continue to issue and enforce rules, it opens agencies up to more criticism and litigation.

There will also likely be more delays in implementation and enforcement, as agencies may feel obligated to over-justify their actions. Relying on Congress to fill in the ensuing gaps is not feasible because Congress does not have the expertise, nor the time, to do the everyday work of program support, implementation, and enforcement.  

The Biden Administration has finalized several rules that help protect and expand access to abortion and to protect reproductive health data. The Administration has also proposed several rules to expand access to reproductive health care, including a rule to expand access to contraception.

The end of Chevron deference puts policies like these at risk and could potentially impact ongoing litigation on HHS’s Title X funding or the Equal Employment Opportunity Commission’s rules implementing the Pregnant Workers Fairness Act. These examples demonstrate only some of what may be at stake as a “new normal” without Chevron unfolds.

Attacks on reproductive rights are nothing new. Although the overruling of Chevron deference is not a direct attack on reproductive rights, it still presents new opportunities to whittle away at basic rights, particularly reproductive rights. Congressional interference or micromanagement, coupled with increased administrative delays and litigation, will inevitably be weaponized to attack abortion, contraception, fertility treatment, and a host of other evidence-based practices.

Nonetheless, the Center for Reproductive Rights will continue to employ novel policy and litigation approaches to protect and expand federal reproductive rights—and will not stop until reproductive rights are protected in law as fundamental human rights for every person.