Trump-era Interior Department Secretary David Bernhardt is dealing a one-two punch to abortion care and agency powers in an upcoming Supreme Court battle royal.
In an amicus brief docketed Wednesday, Bernhardt told the high court that Food and Drug Administration decisions to increase access to abortion pills is illustrative of a broader problem of courts deferring to federal agencies’ expertise.
Career staff at agencies like FDA and Interior are “overwhelmingly liberal,” he wrote, and have a “consistent bias” toward progressive policies, throwing roadblocks in the path of Republican presidents, like his former boss President Donald Trump.
“One would be naïve not to understand how policy drives the ‘science’ at an agency,” attorneys for Bernhardt wrote.
The former Interior secretary’s brief relates to a pair of upcoming Supreme Court cases that pit the FDA against anti-abortion groups that want to limit access to mifepristone, a drug the agency approved in 2000 as a safe and effective method for terminating early pregnancies.
It is the court’s first significant abortion case since it overturned Roe v. Wade in 2022. A ruling against the FDA could threaten the agency’s longstanding discretion to make science-based decisions on other ideologically divisive medications, such as Covid vaccines.
Bernhardt’s brief also arrives at a time when the conservative-dominated high court has taken an increasingly critical view of the authority of executive agencies.
In a separate blockbuster case this term, the justices could overturn Chevron deference, a 40-year-old legal precedent that gives agencies leeway to interpret unclear statutes.
Environmental groups that have lined up to defend Chevron note that the doctrine can sometimes cut against them in court, as it did in the 1984 case that established the legal theory. But they say that it is a way to ensure that expert agencies receive proper deference from judges who haven’t spent years studying the technical nuances of federal rules.
Bernhardt in his brief questioned whether courts should view agencies as experts.
While he did not mention the Chevron cases, Bernhardt criticized the FDA’s “failure” to follow the law in its abortion pills approval as one mark against judicial deference to federal agencies that he said are prioritizing policy preferences above scientific evidence.
“The administrative state is consistently failing the American people and will continue to do so until held accountable,” he said.
Owl protections
The amicus brief follows a Tuesday filing by an anti-abortion group that said abortion pills jeopardize endangered species — an issue that was under Bernhardt’s purview when he led Interior at the tail end of the Trump administration.
While Bernhardt did not advance those arguments in his brief, he offered an Endangered Species Act rule on the northern spotted owl as one example of clashes between agencies’ career and political staff that he says the courts need to correct.
Pulling an anecdote from his 2023 book “You Report to Me: Accountability for the Failing Administrative State,” Bernhardt recalled a dispute with a Fish and Wildlife Service employee who raised scientific objections to a decision to shrink the owl’s habitat by approximately one-third.
“The FWS employee ‘appeared to believe that he was free to replace the words of a statute with other words he wished that Congress had written instead,’” Bernhard wrote, quoting from his book.
He added that “there were good reasons to believe that the employee’s ‘scientific’ conclusion was wrong, too.”
In 2020, Interior moved forward with the habitat reduction. That decision was later mostly reversed by the Biden administration, which contended that the Trump-era reduction was a political decision, rather one grounded in science.
“Too often entrenched employees will substitute their own (usually progressive) policy preferences into an agency’s mission,” Bernhardt wrote in his brief to the Supreme Court.
He continued: “This leads to administrative action that is contrary to both the will of the people and the laws/regulations in place to guide agency behavior.”
Arguments in the abortion pill cases — FDA v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine — are scheduled for March 26.
A decision is expected by early summer.
