By Jennifer S. Bard
Teaching public health law over these past three years has meant contending with a series of federal and state court rulings that in different ways have called into question many of what seemed to be the most established principles of public health law. The double whammy of the pandemic and a new, and very different Supreme Court have already resulted in more dramatic changes to public health law in the past few years than in the preceding one hundred plus years.
At one point, it even seemed like the Court was poised to if not overturn, then certainly undermine Jacobson v. Massachusetts, which has, since 1905, established both the boundary between federal and state authority over public health and given states considerable deference in making unpopular decisions. But, even with Jacobson seemingly intact, we see a Supreme Court that is willing to substitute its judgement for state public health officials if there is anyone affected who is willing to claim a sincerely held religious belief, no matter how slight the burden or neutral the law. If, as Justice Alito has claimed, there is a societal “general hostility” to religion, longstanding but seldom scrutinized practices of granting medical but not religious exemptions from public health measures will need to be re-evaluated.
Less specific to public health but just as dramatic are the cases that question the very existence of the regulatory state. In case after case, either the Supreme Court or single district courts emboldened by SCOTUS support have struck down rules intended to prevent the spread of COVID, which in the recent past would have been at the very core of agency power. The Court seems to have a reliable five votes supporting what was once a fringe view that severely limits when and how Congress can delegate authority to the federal agencies it creates to implement the laws it passes. Unless Congress is able to heed their warning and change its practices, every regulation and agency action is at risk of being struck down.
Finally, it is still impossible to encompass future consequences of these recent shifts. The Supreme Court’s reckless decision in Dobbs v. Jackson Women’s Health Organization to reverse fifty years of precedent upholding personal privacy as a fundamental right protected by the Fifth and Fourteenth Amendment has already caused chaos and harm. Not only has the decision already had catastrophic effects on both maternal and fetal health, it leaves the door open for what at least one Justice hopes is complete recission of rights to everything from interracial marriage, to contraception, to gay sex. Similarly, by striking down New York’s gun laws in New York State Rifle & Pistol Association, Inc. v. Bruen, the Court heralded the beginning of the end of any common sense gun reform at a time when mass shootings have become so frequent that only the most dramatic attract national attention. The Fifth Circuit’s decision in United States v. Rahimi, which holds that it is unconstitutional to prohibit gun ownership among individuals under a domestic violence restraining order, shows the tragic consequences of turning long-ago-written words into inalterable law. As this symposium goes live, we await the decision of a single district court in Amarillo, Texas, which may block access to abortion medication for the entire country, and, if that’s successful, any FDA-approved drug, from birth control, to anti-depressants, to PreP, to hormone replacement therapy, could be next.
As if these changes to federal public health law weren’t enough cause for concern, there is at the same time a hostility to public health within the states themselves. Dissatisfaction over what were perceived as unwarranted restrictions on individual rights during the pandemic have led to a near universal reconsideration of who, how, and when state officials can respond to public health threats. Not only has authority been centralized, but many states have simply declared certain measures, such as requiring customer or employee vaccination, off limits. In addition, many states and school districts are revisiting decades-long vaccine requirements for school attendance. Since not all states have full-time legislatures, the full impact of this anti-public health wave has yet to be seen.
In light of this new reality, it is, as many authors in this symposium argue, fair to declare certain aspects of public health law as we know it already dead and others ripe for termination. And yet the need to protect the public’s health is greater than ever.
It is an honor to be part of bringing together many of the most important voices in public health law to both document what has changed, but also to propose a path forward to create a “new public health” from the ashes.
