5 Ways America's courts could change health care in 2024

Health care policy experts are keeping close tabs on the courts in 2024. Judges are poised to weigh in on health policies — new ones, like Medicare’s power to negotiate drug prices, and old ones, like the Affordable Care Act's insurance rules.

The ramifications of these decisions, some on politically charged issues such as abortion bans and gender-affirming care, are especially important during an election year.

Here are five legal battles experts will be watching closely in the coming months:

1. High Court Could Sharply Limit Medical Abortions

The Supreme Court of the United States will hear oral arguments in March in a case involving the Alliance for Hippocratic Medicine, a group of anti-abortion physicians who are challenging the availability of a drug routinely used in medical abortions. This will be the first abortion-related case the justices will hear since SCOTUS voted to overturn the constitutional right to abortion in 2022.

The court will consider whether a group of physicians has the legal standing to challenge the FDA approvals of mifepristone, one of two drugs used to end a pregnancy. Although mifepristone has been FDA-approved and prescribed in clinics and doctors’ offices for more than two decades, the regulatory agency has increased access dating back to 2016. Currently women can get their prescriptions via telehealth appointments and can take the pills at home anytime in the first 10 weeks of pregnancy.

Medication abortions now account for more than half of abortions nationwide. With nearly 50% of states now restricting access to surgical abortions, experts expect even more women will turn to mifepristone. They say that’s why the drug has come under heightened scrutiny by anti-abortion groups.

The Alliance of Hippocratic Medicinefiled its lawsuit in 2022, arguing that since its members may have to treat medication side effects, they should be able to challenge the drug’s use and approval. The FDA and major medical associations including the American College of Obstetricians and Gynecologists and the American Medical Association counter that Alliance members don’t have to prescribe the drug, and point out that decades of research and real world evidence have shown mifepristone to be safe and effective. Of the nearly 6 million women who have taken the medication in the U.S., less than 1% have reported complications.

A federal district court judge in Texas agreed with the Alliance in 2023 (though any changes to mifepristone access are on hold until the case is resolved by SCOTUS). The trial court ruling marked the first time an FDA stamp of approval was overturned because a judge disagreed with the agency's scientific judgment.

The case is drawing interest from physicians, patient advocates, drugmakers and state lawmakers who worry this challenge to the FDA’s authority could undo FDA decisions on other drugs. Laurie Sobel, an associate director for women’s health policy at KFF, said medications disfavored by the religious right — like PrEP, a preventive treatment that counters HIV infection — could be targeted. “It's definitely in the crosshairs of cultural wars, much in the way that medication abortion is,” Sobel said. “But it's highly effective, and it's been a game changer in terms of changing the spread of HIV.”

2. State Abortion Restrictions Get New Scrutiny

In April, the Supreme Court is scheduled to hear a second abortion case — that tests whether state bans on abortion must include exceptions, and if so, which ones.

In 2022, the Justice Department sued Idaho claiming its restrictive abortion ban violated a longstanding federal law requiring hospitals to stabilize patients in medical emergencies.

Today 14 states have total bans and 11 others block the procedure at certain points in pregnancy. The Idaho law, for example, permits abortion only to save the life of the pregnant person, or in other very narrow instances. Doctors who violate Idaho’s law can lose their state medical license and/or face prison.

Meanwhile, the federal government threatens that if Idaho doctors (or health providers in any state) fail to perform an abortion when a mother’s health is at risk, doctors and hospitals could be fined or lose federal reimbursement for other medical services. The Centers for Medicare and Medicaid Services is investigating complaints, and has already found facilities in Kansas and Missouri violated the law when they denied emergency abortion services to a woman who was at risk of serious infection and losing her life when her water broke at 18 weeks of pregnancy.

This conflict between federal and state law prevents doctors from relying on their own medical judgment, said KFF’s Laurie Sobel. “Doctors are consulting lawyers for the hospital to say, OK, can I do it now?... Can I do it now?”

Sobel said states with very narrow exceptions are forcing doctors to ask themselves "how close to death do you need to be to get an abortion?"

A SCOTUS decision in the Idaho case, expected this summer, could define “health exceptions” to abortion bans across the country. Or the court could decide to allow some states to continue with only “life of the mother” exceptions.

3. Religious Right Takes Aim at the Affordable Care Act

Since the Affordable Care Act’s inception in 2010, more than 2,000 court cases have tried — to challenge parts of the law. The latest attempt, Braidwood Management v Becerra, is now before the Fifth Circuit Court of Appeals in New Orleans, and expected to wind its way to the U.S. Supreme Court.

In this case, a Christian-owned business and six other plaintiffs are challenging one of the most popular provisions of the ACA — a stipulation that nearly all insurers must offer members certain preventive care for free, including contraception and the anti-HIV treatment known as PrEP, as well as certain vaccines and cancer screenings.

The plaintiffs complain that the federal requirement forces them to pay for some medical products and services that violate their religious beliefs about sexuality. The case was decided in their favor in 2023, but any changes to the law based on that decision are on hold while the appeal proceeds.

Zach Baron, co-director of the Health Policy and the Law Initiative at O’Neill Institute at Georgetown Law School, warns that if Braidwood wins that would return the country to pre-ACA days.

“They want to make it so that insurers and employers can pick and choose which of these benefits to cover and how much to charge for them,” said Baron.

Legal experts expect this case to wind up at the Supreme Court — the fourth ACA case SCOTUS will hear.

4. Parents Sue Over State Bans on Gender-Affirming Care for Teens 

At least 23 states have passed laws in recent years that limit or ban gender-affirming care for minors. UCLA’s Williams Institute, a public policy organization focused on LGBTQ issues, estimates such bans affect about 100,000 transgender teens.

Many parents and major medical associations, including the American Academy of Pediatrics and the American Medical Association, say research supports the idea that gender-affirming surgery and medication can be beneficial for the mental health of trans young people.

Families challenging state bans in courts argue the laws are a form of sex discrimination, and target transgender people.

Federal judges in multiple states — including Arkansas and Idaho — agree, noting these same states allow doctors to prescribe the same hormones to other teens for different medical reasons, including birth defects and certain medical conditions that affect the ovaries.

But appellate courts governing Alabama, Kentucky and Tennessee ruled that the prohibitions against gender-affirming care in those states aren’t discriminatory based on sex, because the laws ban care for males and females alike.

The families in Tennessee and the U.S. Justice Department have asked the Supreme Court to take up their case challenging Tennessee’s ban. If the court sides with such bans, said Katie Eyer, a Rutgers University expert in anti-discrimination law, it could undermine other civil rights protections for transgender people.

“I think it is very clear that we are at a moment where the courts are very much involved in deciding the constitutional rights of the transgender community,” Eyer said, adding that any decisions in this case, “would be clearly significant to all of the other discriminatory laws that have recently been enacted targeting transgender people.”

5. Big Pharma Challenges Medicare’s New Drug Negotiation Powers

Medicare is expected to kick off negotiations with drugmakers Thursday, releasing its opening bids on lower prices for 10 of the most expensive, commonly prescribed drugs. These negotiations are part of the Centers for Medicare and Medicaid Services’ new powers to secure lower drug prices for 66 million older Americans.

Leading manufacturers, including Merck, Novo Nordisk and AstraZeneca have challenged this new program in recent months, filing at least nine lawsuits.

The drug firms argue that these negotiations are unprecedented and that the federal government is forcing them to accept low prices. CMS responds that it has been setting rates for physicians, labs and hospitals for decades, and if drugmakers don’t like the prices, they can drop out of Medicare.

The first ruling, from an Ohio judge appointed by President Trump, sided with the government; the other court decisions are still pending.

Georgetown’s Zach Baron said the drugmakers' strategy is to draw judges' attention away from the program’s details, and instead focus on whether federal bureaucrats are overstepping.

If Medicare ultimately carries the day, the new, negotiated prices for these drugs will go into effect in 2026, with further negotiations over other drugs to follow. Policy analysts say the negotiations could save Medicare close to $100 billion over the next decade, and save individual patients substantial amounts of money, too. On the other hand, if judges side with drugmakers, the federal government and older Americans could be stuck with stubbornly high prices.

A recent national poll from KFF shows issues like health care prices, the future of Medicare and Medicaid and abortion rights are among the top 10 things on voters' minds. In a too-close-to-call clash of politics and the legal system, some of the most controversial of these court cases could be decided a few months ahead of the November elections.

This story comes from the health policy podcast Tradeoffs, a partner of Side Effects Public Media. Dan Gorenstein is Tradeoffs’ executive editor, and Alex Olgin is a senior reporter/producer for the podcast, which ran a version of  this story on Feb. 1.