The Aftermath of the U.S. Supreme Court’s Loper Bright on Health Care Practice
1.29.2025

Lawyers practicing in the Health Care industry who represent healthcare companies and government agencies are embarking on a period of uncertainty following the U.S. Supreme Court decision, Loper Bright Enterprises v. Raimondo (603 U.S. 369 [2024]) (“Loper”). At the New York State Bar Association’s Annual Meeting, the Health Law and Food, Drug, and Cosmetics Sections sponsored programs to engage health law leaders in a dialogue about the future of practice related to government regulation in the wake of the Loper decision.
The Loper decision overturned the longstanding “Chevron deference” (467 U.S. 837 [1984] overruled 603 U.S. 369) rule in holding courts may not give deference to an agency’s interpretation of constitutional or statuary provisions. The Administrative Procedure Act (“APA”) (5 U.S.C.A. § 500 et seq.) requires that the court to give weight to agency policymaking or factfinding. However, it runs counter to the APA’s plain language for the court to allow an agency to usurp its essential function as established in Marbury v. Madison, (5 U.S. 137 [1803]) which is to “say what the law is.” The Court’s holding does not overrule past decisions that used the Chevron deference rule.
The Court’s holding will undoubtedly have an enormous impact on how courts will review agency actions, going forward, and create an influx in litigation. At the Annual Meeting, speakers of the programs hailing from both the public and private sectors shared their mixed views. “Loper Bright injects a whole lot of uncertainty,” said Kathy Marks, general counsel for the New York State Department of Health.
Attorneys in the private sector who are working in health care companies welcome the Court’s decision and eye the future as an opportunity to educating judges to aid in their review of agency action, giving petitioners a fair opportunity to challenge agency action, and hold Congress accountable for legislative enactments. Brian Marc Feldman of Aurelian Law in Rochester said that the Loper Bright decision is a game changer. “The decision is leveling the playing field. Regulations are now up to the court to interpret, and from a defense perspective you can put the government regulations on trial now,” he said. Danielle Desaulniers Stempel of Hogan Lovells said that the courts will still look to agencies such as FDA for information and that lawyers have an opportunity to educate judges on the science behind the case at hand after which the judge will feel comfortable making a decision on the regulatory issue.
Many attorneys, formerly with the FDA, now working in the private sector, agree that the regulations will face greater scrutiny.“Now it’s open season on rules that have been collecting dust for a long time,” said Brian Stimson of Arnall Golden Gregory. “Congress will need to take ownership of the laws it writes. In the past, lawmakers might have written a law and have agencies fill in the blanks. That isn’t going to work anymore.”
Impact on New York Cases
Many commentators feared that the Chevron reversal will lead the court to disregard regulations in the areas of environmental protection, workplace safety, and public health. Beth Goldman, Chief Deputy Attorney General for State Counsel says she does not think the Loper decision will have an impact in New York. “The Court of Appeals did not use Chevron deference; they have their own standards,” she said. “They never bought into Chevron, so they don’t have to back away from it.”
Jacob Bergman, co-chief of the Civil Fraud Unit of the New York Attorney General’s office says his office will continue to do its work. “Loper Bright will not change enforcement priorities. We are still pursuing false claim act cases.” Bergman further remarked that he has confidence that the Second Circuit Court of Appeals will continue to employ respect to fairness in interpreting regulations and statutes in those cases. He is confident in the courts and the work of his team.
“Good facts are good law.”