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U.S. Supreme Court

Context Matters: Affirmative Action, Public Health, and the Use of Population-Level Data

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By Wendy E. Parmet, Elaine Marshall & Alisa K. Lincoln

Last June, in Students for Fair Admissions (SFFA), the Supreme Court ruled that universities could not consider race in admitting students. In support of that decision, the Court dismissed the relevance of data about the varied experiences of racial groups, insisting that admissions decisions must be based solely on the experiences and merits of individual applicants. The Court’s rejection of group-level data evinces a critical misunderstanding about the uses and limits of such data that, if applied more broadly, portends troubling implications for health equity and health policy.

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Three Reactions to Braidwood v. Becerra

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Last week, a federal judge in Texas dealt a blow to the Affordable Care Act’s preventative care requirements that private insurers cover services such as behavioral counseling, HPV vaccination, and pre-exposure prophylaxis for HIV/AIDS (PrEP). In Braidwood Management Inc. v. Becerra, Judge Reed O’Connor enjoined the enforcement of the preventative care coverage mandate.

Led by Braidwood Management Inc., the plaintiffs claimed that the preventive services requirements were unconstitutional, violating the Appointments Clause and the Nondelegation Doctrine. Further, they argued that requiring coverage of PrEP violates the Religious Freedom Restoration Act.

In siding with the plaintiffs, Judge O’Connor has jeopardized access to critical health care services, potentially affecting over 150 million insured Americans. The Biden administration was quick to challenge the ruling; on Friday, attorneys for the Department of Health and Human Services filed a notice of appeal.

To make sense of these developments, leading experts in health law policy analyze Judge O’Connor’s ruling below.
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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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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 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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Strategic Maneuvers in Response to COVID-19 Denialist Laws and Policies

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By James G. Hodge, Jr.

Over the course of the COVID-19 pandemic, now entering its fourth year in 2023, legislators, executives, and judges at every level of government have sought measures to derail efficacious public health interventions. Despite clear risks of excess morbidity and mortality, these law- and policy-makers, often in more conservative jurisdictions, intentionally chose to push laws, guidance, and decisions prioritizing rapid “returns to normalcy” over the health and lives of Americans.

Casual observers of these collective trends may see the end of public health powers and services as we know them in the United States. And that’s where they are wrong.

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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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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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