Columns

The two big mistakes in state’s 2025 budget

July 19 ,2024

The new state budget underfunds pensions and hands out pork. It reduces contributions into the pension system by $670 million and spends at least $702 million on district grants. Neither benefits the public.
:  
James M. Hohman, Mackinac Center for Public Policy

The new state budget underfunds pensions and hands out pork. It reduces contributions into the pension system by $670 million and spends at least $702 million on district grants. Neither benefits the public.

Elected officials accidentally made school employees the state’s largest creditors. Lawmakers required teachers to participate in a state retirement system, but they didn’t set aside enough money to pay for their pensions. That’s unfair to teachers and taxpayers alike. It’s not like school workers volunteered to lend the state money. The state now owes teachers $29.9 billion more than has been saved. That’s more than the state owes the bondholders who willingly lent the state money.

Over the past few years, lawmakers had been catching up on what they need to prefund retirees’ medical insurance costs. This year they decided to take the money that they had been spending to prefund those benefits and spend it on their other priorities. That $670 million could have taken a bite out of what is owed.

It’s being spent elsewhere instead, and lawmakers are letting school districts pocket some of the underfunding. Pension contributions are split between the state and school employers, and legislators will ask less from school districts next year. And lawmakers will also stop asking for current employees to put up 3% to prefund their retiree healthcare benefits and have taxpayers cover that cost instead. This transfers the cash freed up by underfunding the pension system to school districts and school workers.

It’s a short-sighted ploy. Pension debts grow like any other unpaid liability. It might make sense to defer if there were a pressing need. There wasn’t one in this case. It was a request from the teachers union whose members will get some extra cash over the short term and, apparently, ignore the longer-term costs.

Another major priority for lawmakers was to take taxpayer revenue and redistribute it to projects in legislators’ districts. The budget contains at least 415 earmarks that spend $702 million.

District grants are wasteful because they deliver money to advance a legislator’s interests rather than the interest of the state as a whole. The state government is supposed to spend the public purse in a way that best serves the public, and legislators are given broad discretion to figure that out.

While there is a perennial demand from legislators to bring money home to their districts, legislators don’t have to give in to their base desires. Previous budgets didn’t contain so much pork. The explosion in district grants didn’t start until three years ago.

Lawmakers know that they’re being naughty. Otherwise, district grants would be part of the executive budget and the budgets initially passed by the House and Senate, instead of being a last-minute addition.

There are supposed to be protections against district grants. The state constitution requires two-thirds approval from legislators to give money to local and private interests. This combats the provincial interest that lawmakers have to look out for their direct constituents more than the general public.

Lawmakers have a loophole to get around that requirement, however. They don’t state the beneficiary directly but use population requirements that apply to only one entity. Consider how lawmakers devoted money to the Berston Fieldhouse in Flint. The money “shall be awarded to a city with a population between 81,000 and 82,000 in a county with a population between 400,000 and 500,000 according to the most recent decennial census to support infrastructure improvements at a fieldhouse.” No other city in Michigan had a census population in that range except Flint. No other county in Michigan had a census population in that range except Genesee County.

Perhaps the project might have been the top project in the state if lawmakers set up a grant program to fund community centers. Or perhaps not.

It is idealistic to want lawmakers to budget for the public interest. But the constitution is an idealistic document. People should want their lawmakers to live up to high standards. They should want the state to catch up on what it owes pensioners, and they should want them to spend the public purse to benefit the public.

Lawmakers have fallen short of ideals with their latest budget.

—————

James M. Hohman is the director of fiscal policy at the Mackinac Center for Public Policy.

Heritage Foundation’s ‘Project 2025’ is just the latest action plan from a group with an over 50-year history of steering GOP lawmaking

July 19 ,2024

As the 2024 presidential election heats up, some people are hearing about the Heritage Foundation for the first time. The conservative think tank has a new, ambitious and controversial policy plan, Project 2025, which calls for an overhaul of American public policy and government.
:  
Zachary Albert, Brandeis University

(THE CONVERSATION) — As the 2024 presidential election heats up, some people are hearing about the Heritage Foundation for the first time. The conservative think tank has a new, ambitious and controversial policy plan, Project 2025, which calls for an overhaul of American public policy and government.

Project 2025 lays out many standard conservative ideas – like prioritizing energy production over environmental and climate-change concerns, and rejecting the idea of abortion as health care – along with some much more extreme ones, like criminalizing pornography. And it proposes to eliminate or restructure countless government agencies in line with conservative ideology.

While think tanks sometimes have the reputation of being stuffy academic institutions detached from day-to-day politics, Heritage is far different. By design, Heritage was founded to not only develop conservative policy ideas but also to advance them through direct political advocacy.

All think tanks are classified as 501(c)(3) tax-exempt organizations, which are prohibited from engaging in elections and can take part in only a small amount of political lobbying. But some, like Heritage, also form affiliated 501(c)(4) organizations that allow them to participate in campaigns and lobby extensively. Heritage is one of the sponsors of the Republican National Convention, which wraps up in Milwaukee on July 18, 2024.

In research for my forthcoming book, “Partisan Policy Networks,” I’ve found that a growing share of think tanks are explicitly ideological, aligned with a single political party, and engaged in direct policy advocacy.

Still, Heritage stands out from all of the groups I investigated. It is much more conservative and more closely aligned with former President Donald Trump’s style of Republicanism. Heritage is also more aggressive in its advocacy for conservative ideas, pairing campaign spending with lobbying and large-scale grassroots mobilization.

Americans should expect to hear a lot more about its ideas, like those outlined in Project 2025, if Trump is reelected in November 2024.

—————

A new type of think tank


Two Republican congressional staffers, Ed Feulner and Paul Weyrich, formed Heritage in 1973 as an explicit rebuke to existing think tanks that they thought were either too liberal or too meek in advancing conservative ideas.

Feulner and Weyrich were particularly incensed about how a preeminent conservative think tank at the time, the American Enterprise Institute, or AEI, timed its release of a policy report in 1971 on whether to approve government funding for supersonic transport airplanes, which can fly faster than the speed of sound. AEI published its recommendations several days after Congress voted on the issue, because it “didn’t want to try to affect the outcome of the vote.”

Heritage turns this philosophy on its head. Rather than producing policy research for its own sake, Heritage conducts research, as one employee told me in 2018, “to build a case, to make the argument for policy change.”

For example, Heritage’s affiliated 501(c)(4) advocacy organization, Heritage Action for America, and Sentinel Action Fund, a Super PAC it set up in 2022, spend money to influence elections and lobby elected officials on issues as diverse as taxation, abortion, immigration and the environment.

For this reason, some scholars and politicos call Heritage and other similar groups “do tanks” rather than “think tanks.”

Because Sentinel Action Fund is a Super PAC, it can raise and spend unlimited amounts of money to influence elections so long as they do not coordinate with candidate campaigns. Sentinel Action Fund then spent more than US$13 million on voter outreach and advertising in the 2022 midterm elections. The fund’s self-described aim was to ensure GOP majorities in the House and Senate by aiding “key conservative fighters” in “tough general elections.”

—————

People, not just money


But it’s the people, even more than money, that make Heritage influential, my research shows.

Heritage has directly worked to place former and current employees in congressional offices and the executive branch. More than 70 former and current Heritage staffers began working for the Trump administration by 2017 – and four current Heritage staffers were members of Trump’s cabinet in 2021.

Heritage also says that it has more than 2 million local, volunteer activists and roughly 20,000 “Sentinel activists” who receive information from Heritage and take part in organized campaigns to push for conservative policies. My interviews show that activists who partner with Heritage take part in strategy calls, contact elected representatives with coordinated messages and amplify the organization’s messaging on social media.

In one example from 2021, Heritage Foundation developed a report on election fraud and voter integrity. Heritage Action for America, meanwhile, coordinated volunteers to deliver this report to Georgia legislators, had staffers meet with these legislators to advise them on passing new voting restrictions, and paid for television advertising urging citizens to support such laws.

—————

Heritage, Trump and Project 2025


All these efforts add up to a great deal of influence within the Republican Party. Heritage has played a key role in pushing Republicans toward more conservative policies since its creation.

When former President Ronald Reagan took office in 1981, for example, the Heritage Foundation had a ready-made conservative agenda for the new administration. By the end of his first term, Reagan executed more than 60% of the think tank’s policy recommendations.

When Trump took office in 2016, Heritage was again ready with friendly staffers and a handy policy agenda, called the Blueprint for Reorganization. By the end of Trump’s first year in office, Heritage boasted that he “had embraced 64 percent of our 321 recommendations,” among them key conservative priorities like tax reform, regulatory rollback and increased defense spending.

Project 2025 is similar to these other sets of recommendations for Republican politicians and presidential candidates. It outlines an agenda for a new president to adopt and a team of experts to help them.

But Project 2025 has taken on a different bent compared with earlier blueprints. Kevin Roberts, the president of Heritage, has described the group’s role as “institutionalizing Trumpism.”

This is probably why Project 2025, and Heritage, have received such an unusually large amount of attention in recent months. The fact that a wonky, 900-page policy memo has been the focus of countless news articles and hundreds of Biden campaign tweets, especially before the 2024 election, is a telling indication of its expected influence.

For its part, the Trump campaign has maintained distance from the project, as Trump himself has implausibly claimed that he knows nothing about it.

He is likely keeping his distance from Project 2025 because parts of the agenda are far too extreme for all but the most die-hard conservative activists. But even if Trump isn’t campaigning on these policies, Americans should expect Heritage ideas to matter greatly in a second Trump administration. The Heritage Foundation is built for this goal.


After more than 40 years, the federal right to free education for immigrant students finds itself in the crosshairs of conservatives

July 19 ,2024

Texas once had a law that allowed public schools to charge tuition for undocumented immigrant families to send their children to school. The rationale was that taxpayer dollars should not be spent educating children whose families were not in the U.S. legally.
:  
Tara Sonenshine, Tufts University

(THE CONVERSATION) — Texas once had a law that allowed public schools to charge tuition for undocumented immigrant families to send their children to school. The rationale was that taxpayer dollars should not be spent educating children whose families were not in the U.S. legally.

When the Supreme Court struck down the law in 1982, it held that young people have a constitutional right to access education. In its 5-4 decision in Plyler v. Doe, the court stated that any resources that might be saved by excluding undocumented children from public school would be outweighed by the societal harms – increased unemployment, welfare and crime – of denying a young person an education.

The Supreme Court also recognized that education is the primary vehicle for "transmitting the values on which our society rests."

All children, regardless of immigrant status, have enjoyed the right to a free public education ever since.

But with the growing number of those foreign born without permanent legal status or entering the United States, some politicians are raising concerns about how their children will affect school resources.

Conservative politicians and policy groups are formulating plans to upend the 1982 Supreme Court case in order to address the rising costs of public school education. They want to charge foreign-born students to attend K-12 schools, which they believe will provoke a lawsuit that could enable the Supreme Court to revisit its decision granting access to education for all.

In May 2024, Texas Gov. Greg Abbott, a Republican, said the federal government should cover the cost of educating undocumented children if states are required to let them attend public schools.

While providing an education to immigrants is constitutionally required, economically advantageous and, I believe, morally correct, there are challenges. To educate these children effectively requires looking at class size, school resources and the unique and sometimes traumatic experiences that the growing number of immigrant children may present.

—————

Growth and costs


While it can be difficult to get a reliable count on the number of immigrant children in the U.S. – and the costs associated with their education – there are some ballpark estimates and general trends.

The size of the student immigrant population has been steadily growing. The Census Bureau estimated in 2021 that 649,000 immigrant children ages 5 to 17 — representing 30% of all foreign-born children, including both authorized and undocumented entrants – had been in the United States for three years or less.

The growing number of immigrant students increases the costs to school districts, but by exactly how much per school is not known. The conservative Heritage Foundation claims the cost is about US$2 billion per year, but it didn't break down the cost by the legality of immigration status.

While critics of public education for all focus on cost, the benefits of immigration cannot be ignored. Undocumented immigrants contribute an estimated $13 billion to Social Security – contributions they make through payroll taxes when they use a fake Social Security number or someone else's to get a job.

—————

Social and emotional needs


Immigrant students often arrive with emotional stresses from trauma, separation anxiety, fear of fitting in, and language barriers. The struggle to acquire basic skills is compounded by the daily fear of being deported. Schools may need education experts and extra counseling services to serve these students.

Despite the various issues and challenges that immigrant students face, a 2023 report found no negative consequences to U.S.-born students from sharing a classroom with immigrant peers. The immigrant students in the study were highly motivated and well-behaved, and they brought cultural awareness.

—————

Next steps


From my standpoint as a college educator and former State Department official, I see three broad areas that merit attention.

Information: Before states set up a constitutional challenge by charging immigrant students a tuition they can't afford, accurate data should be compiled about the costs, benefits and trade-offs of providing education to all children, regardless of migrant status.
Antiquated systems for collecting school data must be updated; public schools should receive grants as an incentive for providing accurate information about immigrant students.

Success stories: To help improve teaching of immigrant students – and of all students – districts can learn from the success of public schools that have adopted interventions to lessen fear, improve language skills and break down cultural barriers.

At Eagleton Elementary School in Denver, for example, educators started a "New Arrivals" class to accommodate newcomers from Venezuela.

In West Springfield, Massachusetts, parents and teachers work together to provide shelter, transportation from hotel to school and mental health supports to the area's many newcomers who face homelessness.

Resources: Schools need additional resources to help newly arriving families with school registration, legal assistance and language skills. The Department of Education has proposed $940 million in 2025 to support multilingual learners to provide additional services, such as food banks, shelter and medical assistance – a $50 million boost from the latest fiscal year. The federal government has also reminded states that leftover pandemic aid can support immigrant students before a funding deadline this fall.

At the end of the day, educating children – regardless of their immigration status – has been a bedrock value of America, embedded in law. That is now a source of debate.


Voting rights at risk after Supreme Court makes it harder to challenge racial gerrymandering

July 19 ,2024

Two recent Supreme Court rulings on congressional redistricting will have starkly different consequences for Black voters in the 2024 election.
:  
By Sam D. Hayes
Trinity College

(THE CONVERSATION) — Two recent Supreme Court rulings on congressional redistricting will have starkly different consequences for Black voters in the 2024 election.

One ruling boosted Black voting power in Louisiana, while another decision upheld a South Carolina congressional map that the lower court had declared “illegal racial gerrymandering.”

Despite these seemingly contradictory outcomes, there is a through line.

In both cases, the justices gave partisan state legislatures more power to craft congressional districts and overruled the lower federal courts that had ordered state legislatures to draw new maps.

Together, these decisions represent a conservative shift in the Supreme Court’s approach to redistricting that could have major effects on American democracy.

—————

Presuming ‘good faith’ in South Carolina


Every 10 years, U.S. states must redraw their legislative districts to account for population changes. Redistricting is typically completed by a state legislature or commission. When the districts are drawn for political goals, often in unusual shapes, this is considered “gerrymandering.”

Gerrymandering is not necessarily illegal. In 2019, the Supreme Court declared that partisan gerrymandering, or drawing districts that advantage one party over the other, could no longer be challenged in federal courts, making it much more permissible.

However, racial gerrymandering – drawing districts in a way that reduces minority voting power – is illegal, because it violates the Voting Rights Act and the U.S. Constitution.

The question at the heart of the Supreme Court’s May 2024 case about South Carolina’s congressional districts, which were changed in 2022, is whether the new lines were drawn based on race or partisanship.

In Alexander v. South Carolina State Conference of the NAACP, the NAACP and a Black voter, Taiwan Scott, argued that the state legislature had illegally used race to determine the new district boundaries. The new map excluded Black-majority areas from the coastal 1st District, moving 62% of its Black voters to other districts.

In South Carolina, Black voters are overwhelmingly Democrats. Republican lawmakers in Columbia insisted that they had been focused on party, not race, when they created new congressional districts that benefited Republicans.

In January 2023, a federal district court agreed with the NAACP. Ruling that the 1st District was an illegal racial gerrymander aimed at diluting Black voting power, a three-judge panel ordered the state to redraw its map.

The Supreme Court quickly took up the case. On May 23, 2024, the justices decided 6-3 along ideological lines, with the conservatives prevailing, to overrule the lower court because it had not shown conclusively that race was the legislature’s primary consideration when it made the map.

The majority opinion, written by Justice Samuel Alito, argued the state legislature should be given the “presumption of good faith” in the redistricting process. Alito set out a conservative perspective on judicial action on redistricting based on the separation of powers and federalism, which decrees that states run elections, not the federal government.

“Redistricting constitutes a traditional domain of state legislative authority,” Alito wrote, while “federal-court review of districting legislation represents a serious intrusion on the most vital of local functions.”

As a result, Republicans are now likely to win six out of seven congressional seats in South Carolina in November’s general election. Black South Carolinians will cast their ballots in districts that limit their overall voting power.

In her dissent, Justice Elena Kagan, a Democratic appointee, wrote that legal precedent requires the Supreme Court to defer to the lower court – not to the legislature. She specifically questioned the presumption of good faith for the legislature given the lower court’s finding that South Carolina’s new congressional map reflected race-based decision-making.

—————

‘Purcell Principle’


Lower federal courts have been actively involved in the redistricting process since the 1960s. As my research has shown, they have played an important role in promoting voting rights.

The South Carolina ruling articulated the conservative court majority’s view that lower courts should be less active in certain redistricting cases and more deferential to state legislatures. The justices reinforced this view in another race-and-redistricting decision from this term, this time in Louisiana.

Louisiana’s 2024 Republican-drawn congressional redistricting plan boosted Black voting power. It increased Black-majority congressional districts from one to two, out of six total.

Just as in South Carolina, a federal court declared this redistricting plan to be an illegal racial gerrymander. And again the Supreme Court overruled that lower court’s decision.

In a brief and unsigned order, the court allowed Louisiana to keep its new congressional map, giving the state’s Black voters more electoral power come November – and beyond.

Justice Ketanji Brown Jackson dissented. She would have allowed the lower court case to play out, she wrote. Further, she argued against the majority’s use of the “Purcell Principle” to overrule the lower court.

The Purcell Principle, established in 2006, holds that courts should not change electoral rules just before an election because it could create confusion. This principle contradicts much of the history of federal court decisions on redistricting, potentially endangering voting rights by curbing judicial oversight of state lawmakers.

—————

Curbing lower courts


The effect of the court’s rulings is potentially significant. By providing more deference to state legislatures and limiting lower federal court involvement in redistricting, the Supreme Court has in recent months given states increased opportunity to gerrymander.
Meanwhile, voters have less power than ever to fight back when they believe a new congressional map unfairly limits their power at the ballot box.

The court’s conservative majority has already allowed partisan gerrymandering. Now, racial gerrymandering may be harder to challenge in court – and voting rights harder to enforce.


How Trump’s appeal to nostalgia deliberately evokes America’s more-racist, more-sexist past

July 18 ,2024

There’s a reason Donald Trump’s 2024 presidential campaign is working hard to evoke nostalgia: People who are nostalgic – meaning, people who long for America’s “good old days” – were more likely to vote for Republican candidates in the 2022 midterm elections, according to research I conducted along with collaborators Kirby Goidel and Paul Kellstedt.
:  
Spencer Goidel
Auburn University

(THE CONVERSATION) — There’s a reason Donald Trump’s 2024 presidential campaign is working hard to evoke nostalgia: People who are nostalgic – meaning, people who long for America’s “good old days” – were more likely to vote for Republican candidates in the 2022 midterm elections, according to research I conducted along with collaborators Kirby Goidel and Paul Kellstedt.

The first day of the 2024 Republican National Convention kicked off with a nostalgic message from Virginia Gov. Glenn Youngkin imploring voters to back Trump and “make America the land of opportunity again.”

And in general, the 2024 RNC themes largely wax nostalgic with “Make America Wealthy Once Again” on Monday, “Make America Safe Once Again” on Tuesday, “Make America Strong Once Again” on Wednesday, and “Make America Great Once Again” on Thursday.

The American public leans nostalgic. Through the 2022 Cooperative Election Study survey, which is a collective effort across many researchers and research groups, we surveyed 1,000 U.S. adults and found that approximately 54% of the respondents to our questions agree that “the world used to be a better place.” Other questions we asked included “How often do you long for the good old days in this country?” and “Do you think the American culture and way of life has mostly changed for the worse or better since the 1950s?”

From their answers, we constructed a scale of how much nostalgia a person feels for America’s past, and we used this scale to examine the influence of nostalgia on people’s vote choice in the 2022 midterm elections.

Our results show that the influence of nostalgia is most pronounced among independent voters.

In 2022, partisans, meaning people who aren’t independents, were loyal supporters of their respective parties, regardless of how much nostalgia they have. But independents, or people without party attachments, who feel relatively little nostalgia have a 57% probability of voting Democratic and 40% probability of voting Republican. Meanwhile, independents with relatively high levels of nostalgia have a 25% probability of voting Democratic and 74% probability of voting Republican.

Looking ahead to the 2024 general election, our findings indicate that nostalgic appeals could attract those more independent-minded swing voters to the Republican Party.

—————

Trump’s nostalgic appeal


As a record number of Americans disapprove of incumbent President Joe Biden, a New York Times/Siena College poll finds that nostalgia for the late 2010s is setting in.

Trump’s role in the Jan. 6, 2021, insurrection and his handling of the pandemic seem like blips compared to the three years of sustained economic growth during his presidency from 2016 to 2019. Just 9% of voters say the insurrection or COVID-19 is the one thing they remember most from the Trump presidency – 24% recall the economy. It’s no surprise Trump’s presidential campaign is steeped in nostalgia, again.

Trump is using the same slogan that he used officially in his 2016 campaign and unofficially in his 2020 reelection bid – “make America great again.” In 2016 and 2020, the slogan referred to a vague and distant American past when things were better, simpler.

Now, the former president’s appeal has an element of specificity to it. “Make America great again” – captured in the acronym “MAGA” – is a pledge to return things both to “the good old days” and to the way they were during Trump’s presidency. Trump’s campaign is explicit about this connection. For example, the campaign website cites Trump’s first-term accomplishments when it lists “rebuild the greatest economy in history,” “stop crime and restore safety,” and “renew American strength and leadership” as some of Trump’s top priorities for another term.

—————

Are you better off than you were four years ago?


Presidential candidates often use nostalgia in their campaigns. “Make America great again” was not novel in 2016: It was co-opted from Ronald Reagan’s “let’s make America great again” pitch in 1980.

Reagan was masterful in his use of nostalgic appeals. In 1980, he was running against an extremely unpopular incumbent president in Jimmy Carter. After four years of the Carter presidency, the American economy was significantly worse off than in 1976.
The inflation rate was 13.5%, and the economy was in a recession.

While debating Carter, Reagan famously asked the audience, “Are you better off than you were four years ago?” The answer to Reagan’s question was clearly, “No.”

Comparing current conditions to the recent past is a crucial component of democratic accountability. The act of voting is inherently retrospective, a judgment of past performance. Voters need to be able to hold incumbent presidents accountable.
However, Trump’s nostalgia is more than simple retrospection. Trump’s appeal isn’t just about a better economic past or a more stable society. It serves as an evocation of a time in America when women and minorities had less power.

—————

Nostalgia as a dog whistle


In a recently published paper in the journal Research & Politics, political scientists Kirby Goidel, Bradley Madsen and I find that feelings of nostalgia are strongly related to sexism and racism.

Analyses show that those people with more nostalgia are 23% more likely than those with less nostalgia to agree with the following racist statement: “Irish, Italian, Jewish and many other minorities overcame prejudice and worked their way up. Blacks should do the same without any special favors.”

Similarly, nostalgic respondents are significantly more likely to believe that women “are too easily offended” and that they “seek to gain power by getting control over men.”

The connection of nostalgia to racial resentment and hostile sexism is why Trump’s nostalgic appeal is so potent and polarizing: Nostalgia is not merely about the past four years or even the Reagan-era 1980s; it harks back to an era before the Civil Rights Movement, and before the feminist movement gained momentum.


Supreme Court’s blow to federal agencies’ power will likely weaken abortion rights – 3 issues to watch

July 18 ,2024

The Supreme Court wrapped up its term at the beginning of July 2024 with a range of rulings that reshape everything from the power of the presidency to how federal agencies carry out their work.
:  
By Jessica L. Waters
American University

(THE CONVERSATION) — The Supreme Court wrapped up its term at the beginning of July 2024 with a range of rulings that reshape everything from the power of the presidency to how federal agencies carry out their work.

One of the court’s most significant decisions was Loper Bright Enterprises v. Raimondo. This ruling, at its core, determines the balance of power between the judiciary branch’s federal courts and the executive branch’s federal agencies.

When Congress passes laws, legislators know that many will have gaps and ambiguities. It is generally the job of federal agencies – staffed with subject-matter experts – to issue regulations to fill in that detail.

Before the Supreme Court’s July ruling, courts deferred to those agency decisions. Now, in a reversal of 40 years of precedent, courts, not agencies, will have the last word on interpreting federal law.

Loper did not automatically reverse all agency determinations made over the past 40 years. But, going forward, Loper’s shift of power from federal agencies to the federal courts will have profound effects on many different policies and laws – including those that deal with abortion and reproductive rights.

Lawyers and scholars like me who study reproductive rights understand that federal agencies, such as the Department of Health and Human Services and the Food and Drug Administration, generally have the scientific and medical expertise necessary to set guidance for and implement effective, evidence-based reproductive health care policy.

For example, the FDA first approved mifepristone, one of the two drugs that can cause nonsurgical medical abortions, in 2000. The agency’s medical and scientific experts reviewed decades of evidence from clinical trials and highly technical scientific studies and found that the drug was safe and effective.

Here are three abortion and reproductive rights issues in which federal agency decision-making could be tested in the months and years to come.

—————

1. The FDA and mifepristone


This spring, the Supreme Court also issued a ruling related to the FDA’s approval of mifepristone, in a case called FDA v. Alliance for Hippocratic Medicine.

This case’s origins trace back to 2022, when this alliance, a coalition of medical professionals who oppose abortion, sued the FDA. It wanted to remove mifepristone from the U.S. market on the theory that the FDA never should have approved the drug – despite mifepristone’s long record of safety and efficacy. A Texas federal court agreed with the Alliance for Hippocratic Medicine, effectively reversing the FDA’s approval and removing the drug from the market. The FDA then appealed to the Supreme Court.

The Supreme Court held in June 2024 that these medical professionals did not have “standing” – that is, they were not the correct plaintiffs to bring the case because, as medical professionals who don’t provide abortions, they weren’t affected by mifepristone’s availability. The Supreme Court did not actually consider whether mifepristone should be removed from the market.

However, it is almost certain that a similar challenge to the FDA’s authority to regulate mifepristone will soon be back before the Supreme Court. Indeed, the lawyers for the Alliance for Hippocratic Medicine have already signaled that they will continue the medical abortion case, this time with U.S. states as plaintiffs.

And when this case reaches the Supreme Court, it is an open question whether the justices will defer to the FDA’s authority to approve and regulate mifepristone – or whether they will substitute their own judgment for the FDA’s. The court could, for instance, reverse the FDA’s determination that mifepristone should be available by telemedicine, without an in-person appointment, or even reverse the FDA’s approval of the drug.

Given that medical abortion – often with mifepristone – is the most common way someone has an abortion in the U.S., such a decision could dramatically reduce access to this safe abortion method, including for patients who have no other safe options.

—————

2. Emergency abortion care


Similar issues about federal agencies’ power come up when considering emergency abortions – meaning abortions precipitated by a medical emergency that places the pregnant person’s health on the line.

Abortion is considered the standard treatment for some pregnancy emergencies, such as when a pregnant person’s water breaks before the fetus is viable.

This spring, the Supreme Court took up a conflict between a federal law called the Emergency Medical Treatment and Active Labor Act, or EMTALA, and an Idaho state abortion ban.

EMTALA requires that emergency rooms provide care to all patients regardless of their ability to pay. After the Supreme Court overturned Roe v. Wade in June 2022, the Department of Health and Human Services issued guidance stating that EMTALA requires hospitals to perform emergency abortions if a pregnant patient’s life or health is in danger. This is true even if the abortion happens in a place like Idaho that has a near-total abortion ban.

The court considered whether Idaho emergency rooms had to comply with the Department of Health and Human Services’ guidance and provide emergency abortions.

In a plot twist, the court declined to give an answer and instead punted the case back to a lower court. The Idaho case will now make its way to the 9th U.S. Circuit Court of Appeals. In the meantime, Idaho emergency rooms can and must provide emergency abortion care.

However, the 5th U.S. Circuit Court of Appeals came to the opposite decision in a nearly identical case, Texas v. Becerra. That court ruled in January 2024 that, despite the federal mandate, Texas doctors cannot provide emergency abortion care to protect a patient’s health.

So now, the validity of federal guidance on emergency abortions depends on the state in which a pregnant person lives and which judge hears the case – almost guaranteeing that this issue will be back before the Supreme Court.

—————

3. Department of Education and Title IX


Loper’s effect on reproductive rights could also be felt in a more tangential sense, such as in current higher education court cases.

At least 20 states around the country are challenging the Department of Education’s interpretation of Title IX. Title IX is a federal law that prohibits sex discrimination in education.

The Department’s Title IX regulations provide enhanced protections for LGBTQIA+ students and sexual harassment survivors and protect students from discrimination based on “pregnancy or related conditions,” including whether they have had or need to get an abortion.

States such as Louisiana, Mississippi, Montana and Iowa have successfully sued in federal district court to halt implementation of the new regulations.

A pending case in a Texas federal court highlights how abortion access could be implicated in these broader challenges to the agency’s Title IX regulations.

In that case, two University of Texas at Austin professors said that they will, contrary to the Department of Education’s guidance, discriminate against students who get abortions by penalizing students who miss class to terminate a pregnancy and refusing to employ teaching assistants who help others get abortions.

If the Texas federal court rules in favor of the Texas professors, it will join the other courts that have dismissed agency rulemaking and erode protections for college students who have abortions.

—————

A collision course with Loper


In her Loper dissent, Justice Elena Kagan wrote: “In every sphere of current or future federal regulation, expect courts from now on to play a commanding role.”

Loper will fundamentally change how federal agencies do their work, particularly those that deal with highly complex medical or scientific issues.

Kagan’s dissent raises the specter of judges across the country – not doctors or scientists or educators, nor even politicians, who at least must answer to the public – playing a “commanding role” in reproductive rights policy.