The Roberts Court 2021–2022: Dobbs and the Continuing Intersection of Law and Medicine

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Notes

1 See generally Dobbs v. Jackson Women’s Health Org., No. 19-1392, slip op. (June 23, 2022); see also Roe v. Wade, 410 U.S. 113 (1973); see also Planned Parenthood v. Casey, 505 U.S. 833 (1992).

2 See Dobbs, No. 19-1392, slip op. at 78-79.

3 See id. at 78-79.

4 See id. (Kavanaugh, J., concurring). One has to wonder whether Justice Kavanaugh he privately committed to overturn Roe, despite what, at least, he reportedly told Senator Collins during the confirmation process. See Carl Hulse, Kavanaugh Gave Private Assurances, Collins Says He “Misled” Her, N.Y. Times, June 24, 2022 (explaining that according to “contemporaneous notes kept by multiple staff members” in a meeting between Senator Collins and Justice Kavanaugh before his confirmation, he told her: “Start with my record, my respect for precedent, my belief that it is rooted in the Constitution, and my commitment and its importance to the rule of law.” “I understand precedent and I understand the importance of overturning it.” “Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences,” “I am a don’t-rock-the-boat kind of judge. I believe in stability and in the Team of Nine”).

5 Former President Trump’s two other appointees, Justice Gorsuch and Justice Barrett, joined the majority opinion.

6 See Jeffrey M. Jones, Confidence in U.S. Supreme Court Sinks to Historic Low, Gallup News (June 23, 2022), https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx (quoting that the question asked was, “Now I am going to read you a list of institutions in American society. Please tell me how much confidence you, yourself, have in each one—a great deal, quite a lot, some or very little. The U.S. Supreme Court……” Gallup reported that, “Americans’ confidence in the court has dropped sharply over the past year and reached a new low in Gallup's nearly 50-year trend. Twenty-five percent of U.S. adults say they have ‘a great deal’ or ‘quite a lot’ of confidence in the U.S. Supreme Court, down from 36% a year ago and five percentage points lower than the previous low recorded in 2014”).

7 See New York State Rifle & Pistol Ass’n., Inc. v. Bruen, No. 20-843, slip op. (June 23, 2022) (holding by a 6-3 vote that New York’s licensing regime applicable to ordinary, law-abiding citizens carrying a handgun publicly for self-defense violated the Second Amendment because it required such individuals to show “proper cause” or a “special need” before they could be licensed to carry a gun for such use).

8 See At Least 19 Children, 2 Adults Killed in Texas Schools Shooting, PBS News Hour (May 24, 2022, 10:56 PM), https://www.pbs.org/newshour/nation/hospital-says-2-dead-after-shooting-at-uvalde-texas-school.

9 See Trump v. Thompson, No. 21A272, slip op. (D.C. Cir., Jan 20, 2002) (holding a vote of 8-1 to deny the application. Justice Thomas was the lone vote in favor of accepting the application). News articles allege that Justice Thomas’s wife was involved in trying to justify former President Trump’s postelection claims while Justice Thomas heard an application for a stay of mandate and injunction by the former president to prevent disclosure of certain records. To some ethicists, Justice Thomas had a conflict of interest and should have recused himself based on his wife’s activities.

10 See generally Quint Forgey & Josh Gerstein, Justice Thomas: SCOTUS “Should Reconsider” Contraception, Same-Sex Marriage Rulings, Politico (June 24, 2022, 1:45 PM), https://www.politico.com/news/2022/06/24/thomas-constitutional-rights-00042256; see also James Barragan, In Roe Decision, Justice Clarence Thomas Invites New Legal Challenges to Contraception and Same-Sex Marriage Rights, Tex. Trib., June 24, 2022, 5:00 PM.

11 Griswold v. Connecticut, 381 U.S. 479 (1965).

12 Lawrence v. Texas, 539 U.S. 558 (2003).

13 Obergefell v. Hodges, 576 U.S. 644 (2015).

14 The Supreme Court has created substantive rights under the rubric of the Due Process Clause of the Fourteenth Amendment; for example, the right to contraception or the right to marry a person of the same sex. The Constitution does not specifically speak to such rights, but they have been identified by the Court through the protection of liberty interests under the Due Process Clause. Justice Thomas rejects this reasoning.

15 See Dobbs, No. 19-1392, slip op.

16 At times, quotes from opinions may be included in this review without quotation marks, especially in factual recitations. Internal quotation marks may be altered without so indicating, and entire citations may be omitted. None of these alterations affects the substance of the discussion, and exact quotations may be found in the original opinions.

17 Dobbs, No. 19-1392, slip op.

18 Roe, 410 U.S. 113 (overturned by Dobbs, No. 19-1392, slip op.).

19 Casey, 505 U.S. 833 (overturned by Dobbs, No. 19-1392, slip op.).

20 Dobbs, No. 19-1392, slip op. (highlighting the majority opinion).

21 Id. (Roberts, C.J., concurring).

22 Id. (Thomas & Kavanaugh, JJ., separately concurring).

23 Id. (Breyer, Sotomayor, & Kagan, JJ., dissenting).

24 See Josh Gerstein & Alexander Ward, Supreme Court Has Voted to Overturn Abortion Rights, Draft Opinion Shows, Politico (May 2, 2022, 8:32 PM), https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473 (recounting the leaked draft of Justice Alito’s majority opinion in Dobbs v. Jackson Women’s Health Org.).

25 Dobbs, No. 19-1392, slip op. at 1.

26 See Roe, 410 U.S. 113 (overturned by Dobbs, No. 19-1392, slip op.).

27 Dobbs, No. 19-1392, slip op. at 3-4 (highlighting the argument that abortion was originally a common-law crime).

28 Id. at 4.

29 Id. at 1-2, 10 (Roberts, C.J., concurring).

30 Id. at 11 (Roberts, C.J., concurring) (stating that, “to overrule Roe and Casey is a serious jolt to the legal system”).

31 Roe, 410 U.S. 113 (overturned by Dobbs, No. 19-1392, slip op.); Casey, 505 U.S. 833 (overturned by Dobbs, No. 19-1392, slip op.).

32 See Casey, 505 U.S. at 855-858.

33 Dobbs, No. 19-1392, slip op. at 3 (quoting Alito, J.). See Planned Parenthood v. Casey, 947 F.2d 682, 723-724 (3d Cir. 1991) (citing to Justice Alito’s panel). Justice Alito dissented from the panel majority’s decision that the Pennsylvania statute’s requirement that a wife notify a husband before having an abortion was unconstitutional. In his view, such a notice requirement did not create an undue burden on a woman and, thus, was constitutional.

34 See generally Dobbs, No. 19-1392, slip op. at 3.

35 Id. at 5 (quoting, in part, Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).

36 Id. (quoting Alito, J.).

37 Id. at 6.

38 Id. at 6 (quoting Casey, 505 U.S. at 979 (Scalia, J., concurring in the judgment in part and dissenting in part)).

39 Dobbs, No. 19-1392, slip op. at 6 (quoting Alito, J.).

40 See id. (accessible at https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf).

41 Id. at 2.

42 Id. at 2.

43 Id. at 2, 11.

44 Dobbs, No. 19-1392, slip op. at 11. See generally Bill of Rights, U.S. Const. amends. I-VIII.

45 Dobbs, No. 19-1392, slip op. at 11-12 (citing Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247-251 (1833) (opinion for the Court by Marshall, C.J.) and McDonald v. Chicago, 561 U.S. 742, 763-67 (2010)).

46 Id. at 12 (quoting Alito, J.).

47 See id. at 2 (Thomas, J., concurring).

48 Id. at 3 (Thomas, J., concurring) (citing Griswold, 381 U.S. 479 (conveying a right of married persons to obtain contraceptives); Lawrence, 539 U.S. 558 (conveying a right to engage in private, consensual sexual acts); and Obergefell, 576 U.S. 644 (conveying a right to same-sex marriage)).

49 Id. at 3 (Thomas, J., concurring). Justice Thomas did suggest that certain rights might still survive under other parts of the Constitution: “After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment.” U.S. Const. amend. 14, § 1. See McDonald v. Chicago, 561 U.S. at 806 (Thomas, J., concurring in part). To answer that question, we would need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights. See id., at 854. That said, even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach. See ante, at 15, n. 22.

50 See Dobbs, No. 19-1392, slip op. at 4-5.

51 See id. at 31-32 (stating that

Casey relied on cases involving the right to marry a person of a different race, Loving v. Virginia, 388 U.S. 1 (1967); the right to marry while in prison, Turner v. Safley, 482 U.S. 78 (1987); the right to obtain contraceptives, Griswold, 381 U.S. 479, Eisenstadt v. Baird, 405 U.S. 438 (1972), Carey v. Population Services Int’l, 431 U.S. 678 (1977); the right to reside with relatives, Moore v. East Cleveland, 431 U.S. 494 (1977); the right to make decisions about the education of one’s children, Pierce v. Society of Sisters, 268 U.S. 510 (1925), Meyer v. Nebraska, 262 U.S. 390 (1923); the right not to be sterilized without consent, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); and the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures, Winston v. Lee, 470 U.S. 753 (1985), Washington v. Harper, 494 U.S. 210 (1990), Rochin v. California, 342 U.S. 165 (1952). Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence, 539 U.S. 558 (right to engage in private, consensual sexual acts), and Obergefell, 576 U.S. 644 (right to marry a person of the same sex).

52 Id. at 4 (quoting Alito, J.).

53 See id. at 37-39 (showing how, in responding to the dissent, Justice Alito refers to an “unfounded fear” that the Court’s decision will imperil other decisions invoking substantive due process:

The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life. This is evident in the analogy that the dissent draws between the abortion right and the rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with member of the same sex), and Obergefell (same-sex marriage). Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called “potential life.” The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “potential life,” but an abortion has that effect. So if the rights at issue in those cases are fundamentally the same as the right recognized in Roe and Casey, the implication is clear: The Constitution does not permit the States to regard the destruction of a “potential life” as a matter of any significance.

He acknowledged that the dissent raised important concerns in discussing the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. But he said that the dissent did not evince a “similar regard for a State’s interest in protecting prenatal life”).

54 Id. at 2.

55 Dobbs, No. 19-1392, slip op. at 2, 31 (stating that “[o]rdered liberty sets limits and defines the boundary between competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed ‘potential life.’ Roe, 410 U.S., at 150; Casey, 505 U.S., at 852. But the people of the various states may evaluate those interests differently. In some states, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized. Voters in other states may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’ Miss. Code Ann. § 41-41-191(4)(b). Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated”).

56 Id. at 2.

57 Id. at 33 (quoting Alito, J.).

58 Id. at 33-34 (quoting Alito, J.).

59 Id. at 35 (quoting Alito, J.).

60 Dobbs, No. 19-1392, slip op. at 39.

61 Id.

62 Id. at 40 (quoting Alito, J.).

63 Id. at 43 (quoting Alito, J.).

64 See generally id. at 66.

65 Dobbs, No. 19-1392, slip op. at 65-66 (quoting Alito, J.). To Justice Alito’s point, the state of Kansas held a vote on August 2 to determine whether that state’s constitution should be amended to prohibit abortion. By a 59% to 41% vote, the people of Kansas rejected the proposed amendment.

66 Id. at 67 (quoting Alito, J.).

67 See generally id. at 69.

68 Id. at 69 (quoting Alito, J.).

69 See generally id. at 10-11 (Roberts, C.J., concurring).

70 See generally Dobbs, No. 19-1392, slip op. (Roberts, C.J., concurring).

71 Id. at 76-77 (quoting Alito, J.).

72 See id. at 2, 11.

73 Id. at 78.

74 Id. at 77 (citing Ferguson v. Skrupa, 372 U.S. 726, 729-30 (1963); Dandridge v. Williams, 397 U.S. 471, 484-86 (1970); and United States v. Carolene Products Co., 304 U.S. 144, 152 (1938)).

75 Dobbs, No. 19-1392, slip op. at 77 (citing, as an example, Board of Trustees of Univ. of Ala. V. Garrett, 531 U.S. 356, 365-69 (2001) (“treatment of the disabled”); Glucksberg, 521 U.S. at 728 (“assisted suicide”); and San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 32-35, 55 (1973) (“financing public education”)).

76 Id. (drawing language from Heller v. Doe, 509 U.S. 312, 319 (1993)).

77 Id. at 78 (citing Gonzales v. Carhart, 550 U.S. 124, 157-158 (2007)).

78 Id. at 77-78 (quoting Alito, J.).

79 See generally Mississippi Gestational Age Act, Miss. Code Ann. § 41-41-191 (2018).

80 Dobbs, No. 19-1392, slip op. at 78 (quoting Alito, J.) (citing Mississippi Gestational Age Act, Miss. Code Ann. § 41-41-191(4)(b) (2018)).

81 Id. (quoting Alito, J.) (citing Mississippi Gestational Age Act, Miss. Code Ann. § 41-41-191(2)(b)(i) (2018)).

82 Id. (quoting Alito, J.) (citing Mississippi Gestational Age Act, Miss. Code Ann. § 41-41-191(2)(b)(i)(8) (2018)).

83 Id. (quoting Alito, J.).

84 See generally id. at 2 (Kavanaugh, J., concurring).

85 Dobbs, No. 19-1392, slip op. at 2 (quoting Kavanaugh, J., concurring).

86 Id. at 3.

87 Id. at 3.

88 This is when the Bill of Rights [or?] the Fourteenth Amendment was adopted.

89 Dobbs, No. 19-1392, slip op. at 4 (Kavanaugh, J., concurring).

90 Id. at 7-8.

91 Id. at 10.

92 See generally id. at 10-11.

93 See Griswold, 381 U.S. 479.

94 See Eisenstadt, 405 U.S. 438.

95 See Loving, 388 U.S. 1.

96 See Obergefell, 576 U.S. 644.

97 Dobbs, No. 19-1392, slip op. at 10 (Kavanaugh, J., concurring).

98 See id.

99 Id.

100 Id. at 1 (Roberts, C.J., concurring).

101 Id. at 2 (Roberts, C.J., concurring) (citing, as an example, A. Ayoola, Late Recognition of Unintended Pregnancies, 32 Pub. Health Nursing 462 (2015) (discussing that pregnancy is discoverable and ordinarily discovered by six weeks of gestation)).

102 Dobbs, No. 19-1392, slip op. at 1-2 (Roberts, C.J., concurring).

103 Id. at 2.

104 See id. at 2.

105 Id. at 5 (citing, as an example, The World’s Abortion Laws, Center for Reproductive Rights (Feb. 23, 2021) (online source archived at www.supremecourt.gov) (discussing how Canada, China, Iceland, Guinea-Bissau, the Netherlands, North Korea, Singapore, and Vietnam permit elective abortions after 20 weeks)).

106 Id. at 5.

107 See Dobbs, No. 19-1392, slip op. at 7 (Roberts, C.J., concurring).

108 Id. at 7-8 (citing Carey, 431 U.S. at 688–689 (quoting that “underlying foundation of the holdings” in Roe and Griswold, 381 U.S. 479, was the “right of decision in matters of childbearing”); Maher v. Roe, 432 U.S. 464, 473 (1977) (explaining that Roe and other cases “recognize a constitutionally protected interest in making certain kinds of important decisions free from governmental compulsion” (internal quotation marks omitted)); id., at 473-74 (stating that Roe “did not declare an unqualified constitutional right to an abortion” but instead protected “the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy” (internal quotation marks omitted)); Webster v Reproductive Health Services, 492 U.S. 490, 520 (1989) (plurality opinion) (stating that Roe protects “the claims of a woman to decide for herself whether or not to abort a fetus she [is] carrying”); and Carhart, 550 U.S. at 146 (stating that a state may not “prohibit any woman from making the ultimate decision to terminate her pregnancy”)).

109 Id. at 7-8 (also citing Webster, 492 U.S. at 519 (plurality opinion) (finding no reason “why the State’s interest in protecting potential human life should come into existence only at the point of viability”)).

110 Dobbs, No. 19-1392, slip op. at 9 (Roberts, C.J., concurring). See Dobbs, No. 19-1392, slip op. at 73-74.

111 Dobbs, No. 19-1392, slip op. at 9 (Roberts, C.J., concurring).

112 Id. at 9-10 (citing, as an example, A. Branum & K. Ahrens, Trends in Timing of Pregnancy Awareness Among US Women, 21 Maternal & Child Health J. 715, 722 (2017)).

113 Id. at 10 (citing, as an example, I. Adibi et al., Abortion, 22 Geo. J. Gender & L. 279, 303 (2021)).

114 Id. at 10 (citing Centers for Disease Control and Prevention, Abortion Surveillance—United States 1 (2020)).

115 Id. (citing Webster, 492 U.S. at 520 (plurality opinion)).

116 See generally Dobbs, No. 19-1392, slip op. at 12 (Roberts, C.J., concurring).

117 Id.

118 See generally Dobbs, No. 19-1392, slip op. (Breyer, Sotomayor, & Kagan, JJ., dissenting).

119 Id. at 1 (citing Casey, 505 U.S. at 853 and Carhart, 550 U.S. at 171-72).

120 Id. at 1.

121 See generally id. at 2.

122 Id. at 2-3 (also describing potential enforcement tools: “Enforcement of all these draconian restrictions will also be left largely to the States’ devices. A State can of course impose criminal penalties on abortion providers, including lengthy prison sentences. But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion. And as Texas has recently shown, a State can turn neighbor against neighbor, enlisting fellow citizens in the effort to root out anyone who tries to get an abortion, or to assist another in doing so”).

123 See generally Dobbs, No. 19-1392, slip op. at 3 (Breyer, Sotomayor, & Kagan, JJ., dissenting).

124 Id. (referring to Dobbs, No. 19-1392, slip op. at 79).

125 Id. at 3-4 (furthering their argument, the joint dissenters also feared a federal ban: “Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest. If that happens, ‘the views of [an individual State’s] citizens’ will not matter (citing Dobbs, No. 19-1392, slip op. at 1). The challenge for a woman will be to finance a trip not to ‘New York [or] California’ but to Toronto” (citing Dobbs, No. 19-1392, slip op. at 4 (Kavanaugh, J., concurring)”).

126 See id. at 4.

127 Id. at 4 (citing Casey, 505 U.S. at 856).

128 Dobbs, No. 19-1392, slip op. at 4 (Breyer, Sotomayor, & Kagan, JJ., dissenting).

129 See generally id. at 4-5.

130 Id. (citing Griswold, 381 U.S. 479 and Eisenstadt, 405 U.S. 438).

131 Id. at 5 (citing Lawrence, 539 U.S. 558 and Obergefell, 576 U.S. 644).

132 Id. at 5 (citing Dobbs, No. 19-1392, slip op. at 66 and Dobbs, No. 19-1392, slip op. at 3 (Thomas, J., concurring) (advocating the overruling of Griswold, Lawrence, and Obergefell)).

133 Dobbs, No. 19-1392, slip op. at 5 (Breyer, Sotomayor, & Kagan, JJ., dissenting) (citing Dobbs, No. 19-1392, slip op. at 32).

134 Id. (quoting Alito, J., in Dobbs, No. 19-1392, slip op. at 15).

135 Id. at 4-5.

136 See generally id. at 5-6.

137 See generally id. at 5-6.

138 See generally Dobbs, No. 19-1392, slip op. at 6 (Breyer, Sotomayor, & Kagan, JJ., dissenting) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991) and Vasquez v. Hillery, 474 U.S. 254, 265 (1986)).

139 Id. at 5-6.

140 Whole Woman’s Health v. Jackson, No. 21-463, slip op. (Dec. 10, 2021).

141 See generally id. at 1-2 (syllabus).

142 See generally id. at 1-2 (syllabus).

143 See id. (majority opinion).

144 See id. (majority opinion).

145 See Whole Woman’s Health, No. 21-463, slip op.; see also Whole Woman’s Health, No. 21-463, slip op. (Thomas, J., concurring in part & dissenting in part).

146 See Whole Woman’s Health, No. 21-463, slip op. (Roberts, C.J., concurring in part & dissenting in part).

147 See id. (Roberts, C.J., concurring in part & dissenting in part) (joined by Breyer, Sotomayor, & Kagan, JJ.).

148 See id. (Sotomayor, J., concurring in part & dissenting in part).

149 See id. (Sotomayor, J., concurring in part & dissenting in part) (joined by Breyer & Kagan, JJ.).

150 See generally Whole Woman’s Health, No. 21-463, slip op.; see also Dobbs, No. 19-1392, slip op. (argued on Dec. 1, 2021).

151 See Texas Heartbeat Act, Tex. Health & Safety Code Ann. §§ 171.204, 171.205 (West 2021).

152 See id. at §§ 171.204(a), 171.207(a), 171,208(a)(2)-(3) (West 2021).

153 See id. at §§ 171.204(a), 171.207(a), 171,208(a)(2)-(3) (West 2021).

154 Whole Woman’s Health, No. 21-463, slip op. at 2.

155 Id.

156 Id. at 2-3.

157 Id. at 3.

158 Id. at 3.

159 Whole Woman’s Health, No. 21-463, slip op. at 3.

160 Id.

161 Id. at 3-4.

162 Id. at 4.

163 Id. at 4.

164 Whole Woman’s Health, No. 21-463, slip op. at 4.

165 Id.

166 Id.

167 Id.

168 Id.

169 Whole Woman’s Health, No. 21-463, slip op. at 5-6.

170 See Ex Parte Young, 209 U.S. 123 (1908).

171 Whole Woman’s Health, No. 21-463, slip op. at 5.

172 Id.

173 Id. at 5-6.

174 Id. at 6.

175 Id. at 6-7.

176 Whole Woman’s Health, No. 21-463, slip op. at 6-7.

177 Id. at 7.

178 Id. at 7.

179 Id. at 9.

180 Id. at 10-11 (quoting Gorsuch, J.) (citing California v. Texas, No. 19-840, slip op. at 8 (2021)).

181 Whole Woman’s Health, No. 21-463, slip op. at 12.

182 Id. (citing Tex. Occ. Code Ann. § 164.055(a) (2017)).

183 Id. at 14.

184 Id. at 14.

185 See id. at 6 (Sotomayor, J., concurring in part & dissenting in part).

186 See Whole Woman’s Health, No. 21-463, slip op. at 15-16.

187 Id. at 15.

188 Id. at 15.

189 See generally id.

190 See generally id. at 4 (Roberts, C.J., concurring in part & dissenting in part).

191 Whole Woman’s Health, No. 21-463, slip op. at 4 (Roberts, C.J., concurring in part & dissenting in part) (citing Marbury v. Madison, 1 Cranch 137, 177 (1803)).

192 Id. (quoting United States v. Peters, 5 Cranch 115, 136 (1809)).

193 Id.

194 Becerra v. Empire Health Found., No. 20-1312, slip op. (June 24, 2022).

195 See generally id. at 1-2.

196 See generally id. (majority opinion).

197 See generally id. (Kavanaugh, J., dissenting).

198 See generally id. (Kavanaugh, J., dissenting) (joined by Roberts, C.J., and Thomas, Alito, & Gorsuch, JJ.).

199 See Becerra v. Empire Health Found., No. 20-1312, slip op. at 3 (citing Sebelius v. Auburn Reg’l Medical Center, 568 U.S. 145, 150 (2013)).

200 Id. at 3.

201 Id. at 3.

202 See generally id. at 1 (syllabus).

203 See generally id. at 1 (syllabus).

204 See generally Becerra v. Empire Health Found., No. 20-1312, slip op. at 3 (syllabus).

205 See generally id. at 1.

206 Id. at 1-3 (describing how low-income patients are those identified by their entitlement to supplementary social security income (SSI) benefits. Justice Kagan explained: “SSI is a ‘welfare program’ providing benefits to ‘financially needy individuals’ who (like Medicare patients generally) are over 65 or disabled” (citing Bowen v. Galdbreath, 485 U.S. 74, 75 (1988))).

207 Id. at 4 (for a more precise analysis, here is the actual statutory language with Justice Kagan’s brackets added: “[a] fraction (expressed as a percentage), the numerator of which is the number of [a] hospital’s patient days for [the fiscal year] which were made up of patients who (for such days) were entitled to benefits under part A of [Medicare] and were entitled to [SSI] benefits[], and the denominator of which is the number of such hospital’s patient days for such fiscal year which were made up of patients who (for such days) were entitled to benefits under [Medicare] part A.” 42 U.S. C. § 1395ww(d)(5)(F) (vi)(I)).

208 Id. at 4 (for a more precise analysis, here is the actual text: “[a] fraction (expressed as a percentage), the numerator of which is the number of [a] hospital’s patient days for [the fiscal year] which consist of patients who (for such days) were eligible for medical assistance under [Medicaid], but who were not entitled to benefits under part A of [Medicare], and the denominator of which is the total number of the hospital’s patient days for such [fiscal year].” 42 U.S. C. § 1395ww(d)(5)(F)(vi)(II)).

209 Becerra v. Empire Health Found., No. 20-1312, slip op. at 5.

210 Id. (citing 42 U.S.C. § 1395ww(d)(5)(F)(v) (2021)).

211 Id. (citing 42 U.S.C. §§ 1395ww(d)(5)(F)(vii)–(xiv) (2021)).

212 See id.

213 Id. (citing 42 U.S.C. § 1395d (2003); citing also 42 C.F.R. § 409.61(a) (1993)).

214 Becerra v. Empire Health Found., No. 20-1312, slip op. at 5 (citing 42 C.F.R. § 409.61(a) (1993)).

215 Id. (citing 42 U.S.C. § 1395y(b)(2)(A) (2022)).

216 Id. at 5-6.

217 See generally Dep’t Health & Human Serv., 45 C.F.R. § 162 (2004); see also Becerra v. Empire Health Found., No. 20-1312, slip op. at 6.

218 See Becerra v. Empire Health Found., No. 20-1312, slip op. at 6.

219 See id.

220 Id.

221 Id. (citing, as an example, Letter from E. Prelogar, Solicitor General, to S. Harris, Clerk of Court (Nov. 23, 2021)).

222 Id. at 6-7 (citing Empire Health Found. v. Azar, 958 F. 3d 873 (9th Cir. 2020)).

223 See Becerra v. Empire Health Found., No. 20-1312, slip op. at 7.

224 See id.

225 Id. (quoting Kagan, J.) (citing Catholic Health Initiatives Iowa Corp. v. Sebelius, 718 F.3d 914, 916 (D.C. Cir. 2013)).

226 Id. at 7-8 (quoting Kagan, J.).

227 Id. (accessible at https://www.supremecourt.gov/opinions/21pdf/20-1312_j42l.pdf).

228 National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. (Jan. 13, 2022) (per curiam).

229 Id. at 2, 4.

230 See generally id.

231 See generally id. (Gorsuch, J., concurring) (joined by Thomas and Alito, JJ.).

232 See generally id. (Breyer, Sotomayor, & Kagan, JJ., dissenting).

233 See West Virginia v. Environmental Prot. Agency, No. 20-1520, slip op. at 9, 12-13, 20 (June 30, 2022) (applying what has now been labeled “the major questions” doctrine, the Court held that the Environmental Protection Agency lacked clear Congressional authority to implement a rule that would have reduced greenhouse gas emissions by reducing the coal-fired plant generation of electricity in America from 38% to 27% by 2030).

234 National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 9 (Jan. 13, 2022) (per curiam).

235 Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq.

236 Id. at § 651(b).

237 National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 2 (Jan. 13, 2022) (per curiam) (citing Occupational Safety and Health Act of 1970, 29 U.S.C. § 655(b)).

238 Id. (citing Occupational Safety and Health Act of 1970, 29 U.S.C. § 652(8)) (emhasis in original).

239 Id.

240 See Occupational Safety and Health Act of 1970, 29 U.S.C. § 655(c)(1); see also National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 2 (Jan. 13, 2022) (per curiam).

241 See id.

242 National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 2-3 (Jan. 13, 2022) (per curiam) (citing, as an example, BST Holdings, L.L.C. v. Occupational Safety and Health Admin., 17 F.4th 604, 609 (CA5 2021)).

243 Id. at 3.

244 Id. at 3.

245 Id. at 3-4.

246 Id. at 2, 4-5.

247 See National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 2, 4 (Jan. 13, 2022) (per curiam).

248 Id. at 4.

249 Id. at 4-5.

250 Id. at 5 (citing In re MCP No. 165, 20 F.4th 264 (6th Cir. 2021)).

251 Id. at 5.

252 National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 5 (Jan. 13, 2022) (per curiam) (citing In re MCP No. 165, 20 F.4th at 268 (6th Cir. 2021)).

253 Id.

254 Id.

255 Id.

256 Id.

257 National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 5 (Jan. 13, 2022) (per curiam) (citing In re MCP No. 165, 20 F. 4th at 272 (2021) (Sutton, C.J., dissenting)).

258 Id. at 6 (citing Alabama Ass’n of Realtors v. Department of Health and Human Servs., No. 21A23, slip op. at 6 (Aug. 26, 2021)).

259 Id. at 5-6. Justice Gorsuch’s concurring opinion contains a similar passage, suggesting perhaps that he was the primary author of the per curiam opinion.

260 Id. at 6.

261 Id. at 6 (citing 29 U.S. C. § 655(b) (1979) (directing the Secretary to set “occupational safety and health standards” (emphasis in the original)) and 29 U.S.C. § 655(c)(1) (1979) (authorizing the Secretary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace)).

262 National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 6 (Jan. 13, 2022) (per curiam) (citing, as examples, 29 U.S.C. §§ 651 (1970), 653 (1970), 657 (1998))).

263 Id. at 6.

264 Id. (citing National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 7 (Jan. 13, 2022) (Breyer, Sotomayor, & Kagan, JJ., dissenting)).

265 Id. (citing, as examples, 29 U.S.C. §§ 652(8) (1998), 654(a)(2) (1970), 655(b)–(c) (1979)).

266 See id.

267 National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 6-7 (Jan. 13, 2022) (per curiam).

268 National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 7 (Jan. 13, 2022) (per curiam). See National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 7-9 (Jan. 13, 2022) (Breyer, Sotomayor, & Kagan, JJ., dissenting).

269 National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 7 (Jan. 13, 2022) (per curiam) (citing In re MCP No. 165, 20 F.4th at 274 (Sutton, C.J., dissenting)).

270 Id. (citing National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 10 (Jan. 13, 2022) (Breyer, Sotomayor, & Kagan, JJ., dissenting)).

271 Id.

272 Id. (citing 29 U.S. C. § 655(b) (1979) (emphasis in the original)).

273 See West Virginia v. Environmental Prot. Agency, No. 20-1530, slip op. (June 30. 2022).

274 See National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 8 (Jan. 13, 2022) (per curiam).

275 Id. (citing Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 505 (2010)).

276 Id.

277 Id.

278 See id. at 8-9.

279 National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 8-9 (Jan. 13, 2022) (per curiam).

280 See generally id. at 1-3 (Gorsuch, J., concurring).

281 Id. at 2 (quoting Gorsuch, J., concurring) (citing McCulloch v. Maryland, 4 Wheat. 316, 405 (1819)).

282 Id. at 2 (quoting Gorsuch, J., concurring) (citing Alabama Ass’n of Realtors, No. 21A23, slip op. at 6 (Aug. 26, 2021)).

283 Id. at 2 (quoting Gorsuch, J., concurring) (citing Gundy v. United States, No. 17-6086, slip op. at 20 (June 20, 2019) (Gorsuch, J., dissenting)).

284 See National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 20A244, slip op. at 2 (Jan. 13, 2022) (Breyer, Sotomayor, & Kagan, JJ., dissenting).

285 Id. (quoting Breyer, Sotomayor, & Kagan, JJ., dissenting) (citing 29 U.S. C. § 655(c)(1) (1979)).

286 Id. (quoting Breyer, Sotomayor, & Kagan, JJ., dissenting) (citing 86 Fed. Reg. 61408 (2021)).

287 Id. (quoting Breyer, Sotomayor, & Kagan, JJ., dissenting).

288 Biden v. Missouri, No. 21A240, slip op. (Jan. 13, 2022) (per curiam).

289 See generally id. at 1.

290 Id. at 1.

291 See generally id.

292 See generally id. (Thomas, J., dissenting) (joined by Alito, Gorsuch & Barrett, JJ.); see also Biden, No. 21A240, slip op. (Alito, J., dissenting) (joined by Thomas, Gorsuch, & Barrett, JJ.).

293 See generally Biden, No. 21A240, slip op. (Thomas, J., dissenting) (joined by Alito, Gorsuch & Barrett, JJ.); see also Biden, No. 21A240, slip op. (Alito, J., dissenting) (joined by Thomas, Gorsuch, & Barrett, JJ.).

294 See generally Biden, No. 21A240, slip op. (per curiam).

295 See id. at 1, 4.

296 See id. at 1, 4.

297 See id. at 1, 4.

298 See id. at 1.

299 See Biden, No. 21A240, slip op. at 2 (per curiam).

300 See id.

301 Id. (citing 42 U.S. C. § 1395x(e)(9) (2020) (regarding hospitals); 42 U.S.C. §§ 1395x(cc)(2)(J) (2020) (regarding outpatient rehabilitation facilities); 42 U.S.C. §§ 1395i–3(d)(4)(B) (2020) (regarding skilled nursing facilities); 42 U.S.C. § 1395k(a)(2)(F)(i) (2020) (regarding ambulatory surgical centers); and 42 U.S.C. §§ 1396r(d)(4)(B), 1396d(l)(1), 1396d(o) (2021) (regarding corresponding provisions in Medicaid Act)).

302 Id. (citing, as examples, 42 C.F.R. § 482 (2020) (regarding hospitals); 42 C.F.R. § 483 (regarding long-term care facilities); and 42 C.F.R. §§ 416.25-416.54 (1991) (regarding ambulatory surgical centers)).

303 Id. (citing 42 U.S.C. § 483.80 (2021) (regarding long-term care facilities); 42 U.S.C. §§ 482.42(a) (2021) (regarding hospitals), 416.51(b) (2021) (regarding ambulatory surgical centers), and 485.725 (2021) (regarding facilities that provide outpatient physical therapy and speech-language pathology services)).

304 Biden, No. 21A240, slip op. at 3 (per curiam) (citing 86 Fed. Reg. 61561, 61616-27 (Nov. 5, 2021)).

305 Id. (citing 86 Fed. Reg. 61571-72 (Nov. 5, 2021)).

306 Id. (citing 86 Fed. Reg. 61574 (Nov. 5, 2021)).

307 See id. at 3-4.

308 Id.Id. (citing 86 Fed. Reg. 61561 (Nov. 5, 2021)).

309 Biden, No. 21A240, slip op. at 3 (per curiam) (citing 86 Fed. Reg. 61559 (Nov. 5, 2021)).

310 Id. (citing 86 Fed. Reg. 61558-61, 61567-68, 61585-86 (Nov. 5, 2021)).

311 Id. (citing 86 Fed. Reg. 61566, 61609 (Nov. 5, 2021)).

312 Id. at 3-4 (citing 86 Fed. Reg. 61588 (Nov. 5, 2021)).

313 Id. at 4.

314 Biden, No. 21A240, slip op. at 4 (per curiam).

315 Id. at 4-5.

316 Id. at 5 (citing 42 U.S.C. § 1395x(e)(9) (2020)).

317 Id. at 5 (citing 86 Fed. Reg. 61557–61558 (Nov. 5, 2021)).

318 Id. at 5 (citing 86 Fed. Reg. 61613 (Nov. 5, 2021)).

319 Biden, No. 21A240, slip op. at 5 (per curiam) (quoting Florida v. Department of Health and Human Servs., 19 F.4th 1271, 1288 (CA11 2021)).

320 See generally id. at 5-6.

321 Id. at 6 (citing 42 C.F.R. § 482.22(c)(5) (2019)).

322 Id. at 6 (citing 42 C.F.R. § 482.45 (1998)).

323 Id. at 6 (citing 42 C.F.R. § 483.30(e) (2016)).

324 Biden, No. 21A240, slip op. at 6 (per curiam) (citing 42 C.F.R. § 482.42 (2021)).

325 Id. (citing, as examples, 42 C.F.R. § 482.42(c)(2)(iv) (2021) (requiring training of “hospital personnel and staff” on “infection prevention and control guidelines”), 483.60(a)(1)(ii) (2022) (requiring qualified dieticians to have completed at least 900 hours of supervised practice), 482.26(b)-(c) (1986) (specifying personnel authorized to use radiologic equipment)).

326 Id. (citing, as examples, 42 C.F.R. §§ 482.1(a)(1)(ii) (1995), 483.1(a)(1)(ii) (2016), 416.1(a)(1) (2006)).

327 Id.

328 See id. at 7.

329 Biden, No. 21A240, slip op. at 7 (per curiam).

330 Id. (citing CDC, State Healthcare Worker and Patient Vaccination Laws (Feb. 28, 2018), https://www.cdc.gov/phlp/publications/topic/vaccinationlaws.html).

331 Id. (citing 86 Fed. Reg. 61567–61568 (Nov. 5, 2021)).

332 See id. at 2 (Alito, J., dissenting).

333 See id. at 4, 8-9.

334 See Biden, No. 21A240, slip op. at 9 (per curiam); see also Biden, No. 21A240, slip op. at 3 (Alito, J., dissenting).

335 See generally Biden, No. 21A240, slip op. (per curiam).

336 See generally id. at 9-10.

337 Id. at 9-10.

338 See id. at 10.

339 American Hosp. Ass’n v. Becerra, No. 20-1114, slip op. (June 15, 2022).

340 See id. at 2, 7.

341 See generally id.

342 Id. at 2 (citing Medicare Prescription Drug, Improvement, and Modernization Act of 2003, 42 U.S.C. §1395 (1965)).

343 Id. at (citing Medicare Prescription Drug, Improvement, and Modernization Act of 2003, 42 U.S. C. § §1395l(t)(14) (1965)).

344 See generally American Hosp. Ass’n v. Becerra, No. 20-1114, slip op. at 2 (June 15, 2022).

345 See id. at 2-3.

346 Id.

347 Id. at 3 (citing 42 U.S.C. § 1395l(t)(14)(A)(iii) (2022) (emphasis added)).

348 Id. at 3.

349 American Hosp. Ass’n v. Becerra, No. 20-1114, slip op. at 3 (June 15, 2022).

350 Id.

351 Id. (citing 42 U.S.C. §1395l(t)(14)(A)(iii)(II) (2022)).

352 Id. (citing 42 U.S.C. § 1395w–3a (2020)).

353 Id.

354 See generally American Hosp. Ass’n v. Becerra, No. 20-1114, slip op. at 3-4 (June 15, 2022).

355 Id. (referring to Tr. of Oral Arg. 41-42).

356 See id. at 4.

357 Id. at 4.

358 Id. at 4.

359 See American Hosp. Ass’n v. Becerra, No. 20-1114, slip op. at 4 (June 15, 2022).

360 See id. (citing 42 U.S.C. § 256b(a)(1) (2010)).

361 Id.

362 Id. (citing 82 Fed. Reg. 52494 (Nov. 13, 2017)).

363 See id. at 6.

364 See generally American Hosp. Ass’n v. Becerra, No. 20-1114, slip op. at 5 (June 15, 2022).

365 Id.

366 See generally id. at 5-6.

367 Id. at 6.

368 See id. at 6-7.

369 See generally American Hosp. Ass’n v. Becerra, No. 20-1114, slip op. at 14 (June 15, 2022).

370 See id. at 6-7.

371 Id. at 10 (citing 42 U.S.C. §§ 1395l(t)(14)(D)(iii)–(iv) (2022)).

372 Id. at 10 (quoting Kavanaugh, J.).

373 Id. at 10 (quoting Kavanaugh, J.).

374 American Hosp. Ass’n v. Becerra, No. 20-1114, slip op. at 10 (June 15, 2022) (quoting Kavanaugh, J.).

375 See id. at 10-12.

376 Id. at 11 (quoting Kavanaugh, J.).

377 See generally id. at 13-14.

378 Marietta Mem’l Hosp. Emp. Health Benefit Plan v. DaVita, Inc., No. 20-1641, slip op. (June 21, 2022).

379 See generally id. at 1-2.

380 See generally id. at 3, 7.

381 See generally id. (highlighting the majority opinion).

382 See generally id. (Kagan, J., dissenting in part) (joined by Sotomayor, J.).

383 See generally DaVita, Inc., No. 20-1641, slip op. (Kagan, J., dissenting in part) (joined by Sotomayor, J.).

384 See DaVita, Inc., No. 20-1641, slip op. at 1.

385 See id.

386 See id. at 2.

387 See id. at 2.

388 Id. at 2.

389 DaVita, Inc., No. 20-1641, slip op. at 2.

390 Id. (citing 42 U.S.C. §1395y(b)(1)(C)(ii) (2022)).

391 Id. (citing 42 U.S.C. §1395y(b)(1)(C)(i) (2022) and 42 U.S.C. §426 − 1 (2020)).

392 See id.

393 Id. at 3.

394 DaVita, Inc., No. 20-1641, slip op. at 3.

395 Id.

396 Id.

397 DaVita, Inc., No. 20-1641, slip op. at 3. See DaVita, Inc. v. Marietta Mem’l Hosp. Emp. Health Benefit Plan, 978 F.3d 326 (6th Cir. 2020).

398 See generally DaVita, Inc., No. 20-1641, slip op. at 7.

399 Id. at 4.

400 Id. at 4 (citing 42 CFR §§ 411.161(b)(2)(i)–(iv) (1995)).

401 Id. at 4 (quoting Kavanaugh, J.).

402 Id. at 4-5 (quoting Kavanaugh, J.) (citing 42 U.S. C. §1395y(b)(1)(C)(ii) (2022)).

403 DaVita, Inc., No. 20-1641, slip op. at 7 (quoting Kavanaugh, J.).

404 See generally id.

405 Gallardo v. Marstiller, No. 20-1263, slip op. (June 6, 2022).

406 See id. at 3, 4.

407 See generally id. (highlighting the majority opinion).

408 See generally id. (Sotomayor, J., dissenting) (joined by Breyer, J.).

409 See id. at 4.

410 See Gallardo, No. 20-1263, slip op. at 4.

411 Id. at 1.

412 See id.

413 See id. at 5-6.

414 See id. at 4, 5.

415 See Gallardo, No. 20-1263, slip op. at 6.

416 Id. (quoting Thomas, J.) (citing 42 U.S.C. § 1396k(a)(1)(A) (2018)).

417 Id. (quoting Thomas, J.) (citing 42 U.S.C. § 1396k(a)(1)(A) (2018); citing also United States v. Gonzales, 520 U.S. 1, 5 (1997) (quoting that “[T]he word ‘any’ has an expansive meaning”)).

418 Id. (quoting Thomas, J.).

419 See id.

420 Gallardo, No. 20-1263, slip op. at 6-7 (quoting Thomas, J.) (citing 42 U.S.C. § 1396k(a)(1)(A) (2018) (emphasis added)).

421 Id. at 7 (quoting Thomas, J.) (citing 42 U.S.C. § 1396a(a)(45) (2018) (emphasis added)).

422 Id. (quoting Thomas, J.) (citing Mississippi ex rel. Hood v. AU Optronics Corp., 571 U.S. 161, 169 (2014)).

423 See id. at 7.

424 See id. at 7.

425 Gallardo, No. 20-1263, slip op. at 7 (quoting Thomas, J.) (citing 42 U.S.C. § 1396a(a)(25)(H) (2022) (emphasis added)).

426 Id. (quoting Thomas, J.) (citing Russello v. United States, 464 U.S. 16, 23 (1983)).

427 See generally id. at 11-12.

428 Ruan v. United States, No. 20-1410, slip op. (June 27, 2022).

429 See id. at 2.

430 See generally id. (highlighting the majority-unanimous decision).

431 See generally id. (Alito, J., concurring) (joined by Thomas & Barrett, JJ.).

432 See generally id. (Alito, J., concurring) (joined by Thomas & Barrett, JJ.).

433 See generally Ruan, No. 20-1410, slip op. (Alito, J., concurring) (joined by Thomas & Barrett, JJ.).

434 Controlled Substance Act, 21 U.S. C. §841(a) (1971). See Ruan, No. 20-1410, slip op. at 1.

435 See Ruan, No. 20-1410, slip op. at 1.

436 21 C.F.R. § 1306.04(a) (2021). See Ruan, No. 20-1410, slip op. at 1.

437 Ruan, No. 20-1410, slip op. at 2.

438 Id.

439 Id.

440 Id. at 2-3.

441 See id. at 2-3.

442 Ruan, No. 20-1410, slip op. at 5 (quoting Breyer, J.).

443 Id. (internal citations omitted).

444 Id.

445 Id. at 6 (internal citations omitted).

446 Id. at 6 (quoting Breyer, J.) (internal citations omitted). Justice Breyer found support in his conclusion by the ambiguity in the applicable regulation. Under 21 CFR § 1306.04(a), an “effective” prescription is defined as one “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” Justice Breyer then explained: “The conduct prohibited by such language (issuing invalid prescriptions) is thus ‘often difficult to distinguish from the gray zone of socially acceptable … conduct’ (issuing valid prescriptions). A strong scienter requirement helps to diminish the risk of ‘overdeterrence,’ i.e., punishing acceptable and beneficial conduct that lies close to, but on the permissible side of, the criminal line” (citations omitted).

447 See generally Ruan, No. 20-1410, slip op. at 14-16.

448 Id. at 2, 5.

449 See id. at 4, 13.

450 See generally Dobbs, No. 19-1392, slip op. (overturning Roe, 410 U.S. 113 and Casey, 505 U.S. 833) (foreshadowing the decision in Whole Women’s Health, No. 21-463, slip. op.).

451 See generally National Fed’n of Indep. Bus. v. Department of Labor, Occupational Safety and Health Admin., No. 21A244, slip op. (Jan. 13, 2022); see also Biden, No. 20A240, slip op.

452 See generally American Hosp. Ass’n v. Becerra, No. 20-1114, slip op. (June 15, 2022).

453 See generally Becerra v. Empire Health Found., No. 20-1312, slip op.

454 See generally Gallardo, No. 20-1263, slip op.

455 See generally DaVita, Inc., No. 20-1641, slip op.

456 See generally Ruan, No. 20-1410, slip op.