Category: Supreme Court

Gavel lying in a courtroom.

Improving the Future of Public Health by Applauding Appropriate Judicial Oversight

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By Marshall B. Kapp

During the COVID-19 pandemic, the Public Health Establishment (PHE)/legal enterprise collaborative fell short of constitutional standards in a number of situations, resulting in adverse judicial rulings of which the PHE and its like-minded academic advocates now complain.

This unhappiness with judicial oversight is an opportunity for introspection. Rather than blaming nefarious or deplorable other forces, a better approach to rehabilitating and enhancing public health law in the future lies instead in the PHE taking stock of itself and committing to a more open-minded, humility infused, and objective approach to the definition of science, the role of expertise, and the better targeted and clearly justified employment of legal force in the next major public health emergency context.

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President Joe Biden at desk in Oval Office.

Federalizing Public Health

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By Elizabeth Weeks

The most promising path forward in public health is to continue recognizing federal authority and responsibility in this space. I carefully choose “recognizing,” rather than “expanding” or “moving” because it is critical to the argument that federal authority for public health already exists within the federalist structure and that employing federal authority to address public health problems does not represent a dimunition of state authority. Rather than a pie, of which pieces consumed at the federal level necessarily reduce pieces consumable at the state level, we should envision the relationship as a Venn diagram, where increasing overlap strengthens authority for promoting and protecting public health broadly.

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The United States Capitol building at sunset at night in Washington DC, USA

The End of Public Health? It’s Not Dead Yet

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By Nicole Huberfeld

Once again, health law has become a vehicle for constitutional change, with courts hollowing federal and state public health authority while also generating new challenges. In part, this pattern is occurring because the New Roberts Court — the post-Ruth Bader Ginsburg composition of U.S. Supreme Court justices — is led by jurists who rely on “clear statement rules.” This statutory interpretation canon demands Congress draft textually unambiguous laws and contains a presumption against broadly-worded statutes that are meant to be adaptable over time. In effect, Congress should leave nothing to the imagination of those responsible for implementing federal laws, i.e., executive agencies and state officials, so everything a statute covers must be specified, with no room for legislative history or other non-textual sources.

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New York NY USA-August 17, 2021 Businesses in Chelsea in New York display signs requiring proof of vaccination prior to entering.

Employers and the Future of Public Health

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By Sharona Hoffman

As state and federal public health authority erodes, employers may increasingly find themselves playing a central role in promoting public health. For example, during the COVID-19 pandemic, many employers either incentivized or required employees and customers to be vaccinated and/or masked even in the absence of federal and state mandates. In the future, they may frequently take the lead in implementing public health measures.

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U.S. Supreme Court interior.

How the Supreme Court’s Judicial Activism Compromises Public Health

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By John Culhane

The United States Supreme Court poses a serious threat to public health, but not because the majority of the justices are necessarily opposed to laws and policies designed to protect and further public health and safety. The problem, rather, is the justices’ commitment to other projects that they deem more central to their anti-administration and pro-religion ideology. Nowhere has this commitment been more apparent than during the ongoing COVID pandemic, but the court’s activism isn’t limited to that serious public health problem.

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Supreme Court of the United States.

Overhauling our Federal Courts to Preserve and Advance Public Health

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By Sarah Wetter and Lawrence O. Gostin

In the Federalist No. 78, Alexander Hamilton called judicial independence “the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.” Judicial independence is also critical for public health. Over the last century, courts have affirmed broad public health powers and established modern health-related rights. Yet in a significant departure from history, today’s federal courts have been far from impartial, issuing ideology-driven decisions that will resound for decades to come, with harmful public health consequences.

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Rome - statue of Cicero from facade of Palazzo di Giustizia.

Reclaiming Salus Populi

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By Wendy E. Parmet and Elaine Marshall

I. Introduction: The Threat to Public Health

As we reach the COVID-19 pandemic’s third anniversary, the warning signs for the future of public health law are everywhere. In the past three years, courts, led by the Supreme Court, have endangered reproductive health and handcuffed governments’ capacity to meet a wide array of public health challenges. Along the way, courts have displayed an alarming disinterest in science or the impact of their decisions on the public’s health.

At the same time, many state legislatures have rushed to introduce bills to limit health officials’ ability to act to protect the community’s health. Between January 1, 2021, and May 20, 2022, at least 185 of such laws have been enacted.

In this climate, public health law needs introspection, imagination, and regrouping.

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simple black childish hand drawing lines lightbulbs on yellow background.

Failures of Imagination in Public Health Policy

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By Daniel Swartzman

If public health is to prosper, we will need to overcome the after-effects of several failures of imagination.

  • Failing to recognize the threat to liberal democracy from the last 50 years of coordinated conservative political and policy actions.
  • Failing to use litigation against inadequate public health actions, as did the early civil rights and environmental movements.
  • Failing to anticipate litigation that challenges our efforts, such as with the ACA or the upcoming attempt to “codify Roe v. Wade.”
  • Failing to demand moral leadership of governmental actors.
  • Failing to make political action and advocacy an integral part of professional education in public health.

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Hospital beds in a room filled with smoke.

The End of Public Health? An Introduction to the Symposium

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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.

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