How to end Texas’s dismantling of the administrative state

Texas has divisively immortalized itself as an opponent of scientific discovery with two twin decisions: Alliance for Hippocratic Medicine v. FDA and Braidwood Management Inc. v. Becerra. 

Despite these cases independently making major headlines, their shared underlying strategy of destabilizing the authority of U.S. administrative agencies has largely flown under the radar. Through weakening of the administrative state, Alliance and Braidwood will have catastrophic consequences, including encouraging fewer drugs developed to combat disease, halting efforts in ending the AIDS epidemic, and increasing STD rates. 

Although the Biden administration has placed great emphasis on an offensive intervention to these decisions, there are very few long-standing remedies to be instituted from the executive level. The only true remedy for this pointed takedown of scientific expertise is congressional action — namely Congress prioritizing legislation that would strategically circumvent these holdings. 

A commonsense way to do just that would be by guaranteeing access to PrEP. 

Pre-exposure prophylaxis (PrEP) is an anti-HIV drug that was targeted by Texas’ Braidwood decision, a high-profile case that sparked mass outrage for stripping millions of Americans’ access to preventive medications such as cancer screenings and colonoscopies. Plaintiffs point to the Appointments Clause to question the constitutional authority of the U.S. Preventive Services Task Force, an independent “panel of national experts in disease prevention and evidence-based medicine” that recommends services to be fully covered by insurance due to their substantial benefits to Americans. By asserting that this panel had not been constitutionally appointed and barring the implementation of their regulations, Braidwood prevents millions of Americans from accessing preventive medications. 

Ensuring PrEP via congressional intervention is a bipartisan avenue that would entirely maneuver around this decision, as the restoration of access would come from an entity other than USPSTF. This action alone would shore up lost momentum in ending AIDS and save countless American lives. 

The Alliance for Hippocratic Medicine utilized parallel misinformation tactics to target decades-old FDA procedures and bar nationwide access to mifepristone — the drug responsible for more than half of abortions in the United States — on a technicality. This move is consistent with the Supreme Court’s increasing skepticism toward and encroachment on administrative agency power. With last term’s decisions to restrict the EPA’s ability to tackle climate change and limit OSHA’s power to tackle COVID-19 in the workplace, we see movement away from expert opinion, favoring rather the dissolution of the power of specialized institutions. 

These holdings share one specific underlying thread: They are blocking pills specifically by bringing into question the authority of administrative agencies (USPSTF and FDA). Both of these cases represent corresponding misinformation-riddled arguments rejecting well-documented scientific opinions. Both of these decisions are also to be appealed up to the U.S. Fifth Circuit Court, an infamously extreme court, and both arecontenders for the incoming Supreme Court docket. 

This is no mistake. Vice President Kamala Harris noted that “we have, in effect, a situation where politicians and politics have driven lawyers to go to a court of law where a judge who is not a medical professional [makes decisions about medication access].” Thus far, the Biden administration has attempted to intervene. With formal requests for emergency stays and disputes from the Justice Department, and the shoring up of HIPAA protections, the administration has been effective in an offensive effort.

Nonetheless, there is little these agencies can do to permanently instate this access and end this string of court cases. Whether it be in a year or five, once this administration leaves, these policies could leave with them, and the movement to block medication will dutifully resume.

Congress, however, does have the power to end this, and ensure access to both mifepristone and PrEP, as well as other preventative medications and procedures. But first, they must correctly diagnose the problem. 

Heba Mohiuddin is director of Equitable Access, a Texas-based organization fighting to pass legislation to ensure free PrEP. She has aided in the passage of multiple bills through the Texas legislature, and represented Texas as a fellow with Americans United for the Separation of Church and State.