Litigation Update
May 29, 2026
This week’s newsletter discusses lawsuits concerning physicians’ speech and conduct, mail access to mifepristone, and challenges to vaccine mandates. To access any of our previous newsletters, you can find them archived here.
First Amendment Rights and Physicians’ Speech or Conduct
The United States Supreme Court recently denied two petitions for certiorari in cases from the Ninth Circuit relating to the First Amendment rights of physicians. Kory et al. v. Bonta et al. (Docket No. 2:2024-cv-00001, U.S. District Court, Eastern District California; Docket No. 24-2946, U.S. Court of Appeals for the Ninth Circuit) was denied certiorari on April 20, and Stockton et al. v. Brown et al. (Docket No. 2:24-CV-00071, U.S District Court, Eastern District Washington; Docket No. 24-3777, U.S. Court of Appeals for the Ninth Circuit) was denied on May 4.
As we covered in our February 27, 2026 newsletter, both cases relate to the Federation of State Medical Boards’ recommendation that its state member boards sanction physicians for spreading COVID-19 misinformation to the public and patients. In Kory, three California physicians, whose actions included recommending ivermectin as a treatment for COVID-19 or spreading misinformation about the COVID-19 vaccine to patients, asked the Supreme Court to intervene and not allow state medical boards to suppress physicians from providing patients with dissenting health information. In Stockton, plaintiffs included Washington physicians who sought injunctive relief against future actions by the state medical board to investigate, prosecute, or sanction them for spreading COVID-19 misinformation. The Ninth Circuit in Kory held that physicians’ speech is unprotected by the First Amendment because it is incidental to medical care, and in Stockton, held that it couldn’t rule on the merits of the case due to procedural issues.
In another case regarding information patients receive from medical providers, the Seventh Circuit in Schroeder et al. v. Treto (Docket No. 3:16-cv-50310, U.S. District Court for the Northern District of Illinois; Docket No. 25-1603, U.S. Court of Appeals for the Seventh Circuit) addressed the limits of state legislation on ensuring patients receive all the necessary information regarding reproductive healthcare. In 2016, Illinois amended the Health Care Right of Conscience Act (HCRCA) to require all health care facilities to adopt protocols that ensure conscience-based objections do not impair a patient’s health or their ability to receive timely access to information and medically appropriate care. This means that if a medical provider or health care institution has a religious or conscience objection to a particular treatment–such as abortion–they must still make patients aware of the availability of their healthcare options so they may elect their own course of treatment. The law requires providers to give information to, refer, or transfer individuals if the provider has a conscience objection to a particular treatment and also requires providers to discuss the benefits and risks of treatment options.
Anti-abortion groups, including the National Institute of Family and Life Advocates who are represented by the conservative legal organization, Alliance Defending Freedom, filed a lawsuit to challenge the new amendments to HCRCA, arguing the law required unconstitutional, compelled speech and is a violation of speech and conscience rights. The District Court issued a split decision in 2025, upholding the referral protocol as conduct rather than speech, but striking down the discussion protocol because it violates the First Amendment. The case was appealed to the Seventh Circuit, and oral arguments were held on April 10, 2026, where the plaintiffs arguing against the HCRCA relied heavily on Chiles v. Salazar, 607 US __(2026) and National Institute of Family & Life Advocates et al. v. Becerra et al., 585 U.S. 755 (2018), two United States Supreme Court decisions that sided with health care providers challenging state laws which regulated speech. The Seventh Circuit has not yet published their opinion in Schroeder.
Supreme Court Allows Mail Access to Mifepristone to Continue - For Now
In Danco Laboratories, LLC v. Louisiana (Docket No. 25-A1207) and GenBioPro, Inc. v. Louisiana (Docket No. 25-A1208) the U.S. Supreme Court granted a request by manufacturers of the abortion drug mifepristone to stay the Fifth Circuit’s order in Louisiana v. FDA, which had blocked mail access to mifepristone, the most common form of abortion. The May 14 decision allows mail access to mifepristone while the underlying case continues in lower courts.
The mifepristone case comes after the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization (Docket No. 19–1392) which overturned Roe v. Wade and ruled that there is no constitutional right to an abortion. Following that decision, the Food and Drug Administration (FDA) under the Biden administration removed the requirement that a person seeking mifepristone must meet with a doctor in-person to obtain the drug. Louisiana challenged this change arguing it was unconstitutional under the Administrative Procedure Act.
The litigation over mifepristone has drawn significant attention from the public health community, with 175 professors, health organizations, and health care providers signing onto an amicus brief in support of the mifepristone manufacturers. Public Health Law Watch staff signed onto the amicus brief and helped collect other sign-ons through the George Consortium. In that brief, drafted by a legal team from Morrison Foerster and Harvard’s Center for Health Law and Policy Innovation, advocates argued that a Supreme Court ruling barring mail access to mifepristone would “undermine the standing of telehealth services more generally and harm the patients who have come to rely on them.”
The Court’s decision on mifepristone also comes in the wake of FDA head Marty Makary’s resignation on May 12. The FDA did not submit a brief on the mifepristone cases despite a request by the Supreme Court.
We will continue to track this case and provide updates as needed.
Supreme Court Denies Cert in Case Challenging Vaccine Mandate
In Health Freedom Defense Fund, Inc. v. Carvalho (Docket No. 25-765), the U.S. Supreme Court on May 18 declined to review a ruling by the Ninth Circuit upholding a Los Angeles Unified School District policy requiring all employees to be fully vaccinated against COVID-19. Although the policy has been rescinded by the school district, the Court’s denial of cert would have allowed it to remain if it were still in effect.
In the Ninth Circuit’s July 31, 2025, decision (Docket No. 22-55908) an en banc session (all judges) of the court found that challenges to policies such as the Los Angeles school district’s COVID-19 vaccine mandate are subject to rational basis review based on Jacobson v. Massachusetts, 197 US 11 (1905), which upheld the constitutionality of a smallpox vaccine requirement. The Los Angeles school district’s policy easily passed this test, the court ruled, as it was “more than reasonable for the [school district] to conclude that COVID-19 vaccines would protect the health and safety of its employees and students.” The court further ruled that Jacobson applies to vaccine mandates irrespective of whether the vaccine in question provides immunity or simply makes a disease less dangerous (as long as decision makers are reasonable in finding that the vaccine is a safeguard for public health and safety). The decision vacated a previous three-judge panel ruling by the Ninth Circuit that Jacobson did not apply to the school district’s vaccination policy.
In making its ruling, the Ninth Circuit rejected the Plaintiffs’ argument that the school district’s policy violated their substantive due process right to bodily integrity. The court also dismissed the Plaintiffs’ contention that the policy “arbitrarily classifies employees based on their vaccination status” in violation of the right to equal protection. In their petition for cert, the Plaintiffs asked the Supreme Court to review whether Jacobson requires courts to examine medical treatments mandated by the government under rational basis review. If so, the Plaintiffs asked the Court to decide whether Jacobson should be overturned or limited, arguing that the decision in that case is “inconsistent with modern constitutional scrutiny.”
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