Court cases could shape the future of U.S. health care, panelists say

By Alander Rocha, AHCJ Equity in Health Journalism Fellowship

U.S. health care policy is increasingly being shaped by the court system, panelists agreed during a June 7 session at Health Journalism 2024 in New York City.

POLITICO health care reporter Alice Miranda Ollstein started the conversation about pending court cases that could affect health care, particularly with a focus on the persistent threat to abortion rights as well as cases that may not seem to be directly related to health care but could still affect delivery of services.

"Unfortunately, we're in a situation now where I do not think we can take for granted that the courts are going fulfill their obligation to act as a check when it comes to these kinds of policy disputes and ideological disputes that are playing out in our legal system," said Julia Kaye, senior staff attorney at the ACLU Reproductive Freedom Project.

Kaye said that when the Supreme Court overturned Roe v. Wade in 2022, the court said the ruling would shift abortion regulation from federal courts to the states. "Predictably, all of that was wrong," she said. Now, the "same political playbook" that was used to overturn Roe v. Wade is being used to challenge access to other health care services.

"The assault on our rights will not stop there," Kaye said. "These extremists are coming for birth control. They're coming for IVF, and they are coming for countless other freedoms. And we should be taking these threats very, very seriously."

Andrew Twinamatsiko, director of the O'Neill Institute for National & Global Health Law at Georgetown University, said the Supreme Court could upend Chevron deference, a principle in which judges generally defer interpretation of ambiguous law to federal agencies. Overturning Chevron deference would change how every federal agency, not just related to health care, operates by leaving interpretation of laws to the courts. (On July 1, the Supreme Court overturned the 40-year precedent.)

"Although this case doesn't arise out of health care, it has serious implications for agencies like FDA, the CDC, CMS," Twinamatsiko said.

Ollstein provided tips for covering court decisions. She suggested setting up PACER alerts or using Georgetown's Health Care Litigation Tracker. Reading amicus briefs can also provide more information and lead to sources, she said.

She also suggested preparing several drafts for different possible outcomes or having templates for different scenarios that can be quickly adapted when the decision is announced.

"The EMTALA case that Julia talked about… I have a pre-write for if they rule one way, or if they rule another way, or if they rule a secret, third way," Ollstein said.

When asked about recommended areas of coverage, Kaye suggested writing stories that detail "the tremendous harm that is already happening."

"It takes so many touchpoints for this to really break through for people - the extent of the harm that we're seeing, and the extent of the threat," Kaye said.

Twinamatsiko suggested highlighting "the interconnectedness of our collective well-being" and showing how these issues are "beyond the humanity of women."

"Creating those narratives and connecting broader things could somehow be helpful to trigger our conscience that has really been desensitized to the humanity of other folks," Twinamatsiko said.

Alander Rocha is a state government and health policy reporter for the Alabama Reflector, part of States Newsroom.