A Look at the Supreme Court’s Upcoming Term

In the last few years, the Supreme Court has significantly undermined public health powers related to pandemic threats, gun violence, and the environment, while upending decades-old precedents to severely limit reproductive rights and disempower health, safety, and environmental agencies.

The new Supreme Court term began this month. On the docket are cases with far-reaching health implications, and the court is also positioned to further diminish the capacity of expert-led agencies to issue orders that interpret and clarify the law. As advocates and policymakers brace for these decisions, the stakes for millions of people hinge on the outcomes, highlighting the critical relationship between law, public health, and well-being.

Gender-Affirming Healthcare

Gender-affirming care has been a political and cultural lightning rod, one that is currently front and center in the presidential election. More than 20 states have banned or restricted access to hormone therapy for youth with gender dysphoria, citing concerns about potential harms. Yet, beyond the political theater lie stark realities: transgender youth face a higher risk of victimization, substance use disorder, and self-harm compared to their peers. In any given year, over a third of transgender high school students attempt suicide.

Studies show that anti-transgender laws contribute to a 72% increase in suicide attempts. However, scientific advancements have improved access to safe and effective gender-affirming treatments, which lessen anxiety and depression while promoting social integration.

Families and medical providers have filed lawsuits to overturn state bans. Some courts have unanimously blocked bans, while others have allowed them to take effect. This term, in United States v. Skrmetti, the Supreme Court will review Tennessee’s law restricting gender-affirming treatments for minors and transgender youth, and determine whether the law violates the 14th Amendment’s guarantee of equal protection.

In essence, Tennessee permits youth to access hormone medications only when the state considers it “consistent” with a person’s sex designated at birth. A doctor might prescribe estrogen to a teenage girl, but would not be able to do so for a transgender girl diagnosed with gender dysphoria. The Biden administration argues that the law discriminates on the grounds of sex and transgender status. The legal challenge in Skrmetti does not implicate laws about surgical care.

Skrmetti will also reveal how far the court is willing to extend the logic of Dobbs, which overturned Roe v. Wade. When defending healthcare bans, states have relied heavily on Dobbs, arguing that health rights can be restricted unless they are explicitly protected constitutionally. A decision upholding bans on gender-affirming healthcare could pave the way to further limiting access to abortion, in vitro fertilization, and other reproductive services. Most importantly, the court’s ruling will deeply affect the lives of marginalized people seeking healthcare, social acceptance, and dignity.

Vaping and E-Cigarettes

In FDA v. Wages and White Lion Investments, the Supreme Court will review whether the FDA acted arbitrarily in denying market authorization for flavored e-cigarettes, like “Jimmy the Juice Man Peachy Strawberry” and “Suicide Bunny Mother’s Milk and Cookies.” The FDA determined that the companies failed to demonstrate that the potential benefit of flavored products for adult smokers outweighed the risk to youth. The 5th Circuit held that the FDA did not properly consider the manufacturers’ marketing plans to prevent underage access and abuse.

The health risks of flavored nicotine products are well documented, especially their role in encouraging young people to start and continue vaping. In 2023, approximately 2 million youth, including 10% of high schoolers, reported using e-cigarettes, with 90% of all adolescent users choosing flavored products.

The Supreme Court’s ruling will have far-reaching public health consequences, potentially undermining the Tobacco Control Act’s goal of “ensuring that another generation of Americans does not become addicted to nicotine and tobacco products.” The implications may extend beyond tobacco control to further weaken FDA authority.

Firearm Safety

Last term, the court ruled that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its authority in banning bump stocks that enable semiautomatic rifles to fire at speeds similar to machine guns. This term, in Garland v. VanDerStok, the justices will examine whether ATF overstepped its bounds in regulating “ghost guns” — kits purchased online and assembled at home without serial numbers to trace their possession and use. During oral arguments on October 8, most justices appeared inclined to uphold ATF’s regulation, possibly because the ATF was not banning a firearm but simply requiring its licensure.

In a separate case, the court will determine whether the Protection of Lawful Commerce in Arms Act shields gun manufacturers from liability when criminals use their products. Mexico alleged that firearm companies intentionally supplied cartels, with 70% of trafficked weapons deriving from the U.S. With Congress’ record of fiercely restricting lawsuits against gun manufacturers and the court’s dismal record on firearm safety, it is likely that accountability will continue to be weakened.

Medicare Reimbursement

The Medicare Disproportionate Share Hospital (DSH) adjustment program provides essential funding to hospitals that treat a large number of low-income Medicare patients. Financial support is a critical public health measure, reducing health disparities and promoting equitable access.

At the heart of Advocate Christ Medical Center v. Becerra is a question of how the DSH adjustment is calculated. After years of disputes between hospital systems and HHS on reimbursement amounts, the court has decided to hear the case. Hospitals argue the existing formula does not adequately reflect the financial strain in serving vulnerable populations. Specifically, they contend the DSH formula should include all Medicare-eligible patients enrolled in the Supplemental Security Income program. The current DSH formula only includes patients who receive a cash payment from supplemental income programs during their hospital stay.

This case raises broader questions of health equity and affordability. One in five adults on Medicare reported challenges in affording premiums. Medicare covers only 82 cents out of every dollar spent by hospitals treating Medicare patients, resulting in a shortfall of $100 billion nationwide in just 1 year. The decision will particularly impact hospitals in rural settings or those treating vulnerable patient populations.

Environmental Health

The Environmental Protection Agency’s (EPA) power to issue rules and reduce pollution will once again come under judicial scrutiny. In 2022, the court held that the EPA lacked the authority under the Clean Air Act to set emissions caps based on “generation shifting” — from higher-carbon energy sources to lower-carbon sources. And in 2023, the court held that the EPA could only regulate wetlands with a continuous surface connection to federal waterways, and not areas that risk pollutant runoff into shared U.S. waters.

This term, in San Francisco v. EPA, the justices will decide whether the limitations in the permit issued to San Francisco for discharge of wastewater into the San Francisco Bay are too vague. In heavy rains, the aging sewer system can overflow and discharge pollutants into the Pacific Ocean.

During the process of upgrading San Francisco’s wastewater infrastructure, EPA and the California Regional Water Quality Control Board issued a new National Pollutant Discharge Elimination System permit. The permit listed specific wastewater pollution quantities, such as pH levels or “floating particulates,” but also set “narrative” limitations — a catch-all provision placing responsibility on permit-holders responsible for overall water quality. San Francisco argues that the EPA exceeded its authority by setting generic obligations, arguing they are imprecise and leave local officials uncertain about what types of infrastructure investments they must make.

The EPA has long relied on narrative provisions as a backstop measure to protect water quality if existing limits prove inadequate. The case will determine the extent to which the justices will defer to the agency’s expertise, or whether they will continue to aggregate power to themselves.

In some ways the 2024-2025 Supreme Court term may appear uncontroversial, avoiding issues like abortion and presidential immunity. And yet, the justices are poised to further weaken the right to health for decades to come in far-reaching areas with broad consequences.

Lawrence O. Gostin, JD, LLD, is distinguished university professor, the highest academic rank at Georgetown University, where he directs the O’Neill Institute for National & Global Health Law. He is also the director of the World Health Organization Collaborating Center on National & Global Health Law, and the author of Global Health Security: A Blueprint for the Future. Adi Radhakrishnan, JD, is a law fellow with the O’Neill Institute.

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