By Wendy Parmet
At first glance, last Thursday’s decisions by the Supreme Court in McCullen v. Coakley and the New York Court of Appeals in New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, have little in common. McCullen, which struck down a Massachusetts law establishing a 35 foot buffer zone around reproductive health clinics, was a First Amendment case that dealt with the always contentious issue of abortion. In contrast, N.Y. Statewide Coalition, which upheld a lower court decision striking down a regulation of the New York City Board of Health barring the sale of large portions of sugary soda, was decided on state administrative law grounds, with the court finding that the Board exceeded its authority.
On closer inspection, however, the two cases share several features in addition to their date of decision. One is the failure to give substantial weight to the state’s interest in protection health. In his opinion for the Court in McCullen, Chief Justice Roberts accepted that the buffer zone law was content neutral and therefore not subject to strict scrutiny. Nevertheless, a unanimous Court held that the Massachusetts law was not narrowly tailored to serve the government interests of protecting public safety and access to health care. In reaching this decision, the Court focused on the “toll” that the buffer zone placed on the abortion opponents who tried to dissuade woman from having abortion, rather than the impact of the lack of such a zone on woman seeking reproductive health care. Equally important, the Court showed no willingness to defer to the state’s contentions that alternative regulatory approaches had proved unsatisfactory. Rather the Court insisted that given “the vital First Amendment interests at stake, it is not enough for Massachusetts simply to say that other approaches have not worked.”
The refusal to give substantial weight to public health protection was even more apparent in Justice Pigott’s opinion for a 4-justice majority of the Court of Appeals in N.Y. Statewide Coalition. As Justice Read’s dissent demonstrates, the majority’s approach will cabin the traditionally broad power of the Board of Health, making it more difficult for that body to protect the city’s population from the health threats of the 21st century. Equally, Justice Pigott’s decision ignored the significance of the obesity problem that the portion rule was designed to address, as well as the considerable empirical evidence demonstrating the role that soda plays in promoting obesity. Thus the idea that the Board needs broad powers to address critical, new health threats is wholly absent from the majority’s decision.
Related to both courts’ views of the police power is their failure to defer to either public health evidence or the expertise of health professionals. In the soda case this was evident in the court’s finding that the portion rule should have been left to the legislature because “it involved more than simply balancing costs and benefits according to pre-existing guidelines: the value judgments entailed difficult and complex choices between broad policy goals….” Although the court was undoubtedly correct that the rule implicated value judgments, its refusal to see any value added by expertise, and its unwillingness to defer to the expert body charged with protecting the city’s health, offers a sharp contrast to traditional judicial treatment of public health bodies.
The Supreme Court’s treatment of health evidence and expertise in McCullen is even more surprising. One truism of health law is that courts give great credence to physicians and health professionals. That respect was strangely absent in McCullen. Indeed, not only was the Court untroubled by the presence of petitioners attempting to intrude on the physician-patient relationship, it was wholly comfortable viewing them as “counselors” hampered in their “counseling efforts.” In effect, the Supreme Court saw little difference between health professionals and lay opponents of abortion.
Lying just beneath both decisions’ views towards the police power and expertise is an incipient libertarianism. This privileging of the rights of the individual may not be surprising in McCullen as the Supreme Court has long viewed the First Amendment as providing an individual speaker with a trump against the state, but it is of note in N.Y. Statewide Coalition. In a case that did not ostensibly raise any question of individual rights, the majority inserted them into the analysis, insisting that a regulation’s impact on individual autonomy was a factor that courts should consider when determining whether an agency had engaged in impermissible lawmaking.
Yet despite this shared leaning towards libertarianism, both courts evinced some discomfort with where their rulings where taking them. Perhaps recognizing how far they were traveling from traditional judicial approaches to exercises of the police power, each court emphasized the narrowness of its ruling. To Justice Scalia’s chagrin, the McCullen Court refused to condemn all regulations designed to protect patients from abortion protesters, and suggested alternative approaches that the state might employ. In N.Y. Statewide Coalition, the court insisted that it was proffering a nuanced multi-factor test that would not endanger numerous other health regulations.
Several years ago, I argued that public health was a legal norm, meaning that the protection of public health was a legitimate goal of law as well as a factor that courts rightly used in decision making. I also suggested that the norm was losing its potency as courts had come to forget the importance of public health to law. McCullen and N.Y. Statewide Coalition reinforce that conclusion. In both cases, public health is an eroding norm. But it isn’t entirely forgotten. Its future remains both contested and murky.