Here are Lawrence Gostin, JD, and Sarah Wetter, JD, MPH at jamanetwork.com. Both are at the O'Neill Institute for National and Global Health Law at Georgetown University in Washington, DC.
Their Viewpoint article is a good example of supposedly educated and knowledgeable professionals going off the rails because they fail to understand fields outside their profession - and even their profession.
I've added some comments in italics to focus on points that might be interesting to think about.
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A fundamental shift in the Supreme Court was set in motion in 2020 with the death of Ruth Bader Ginsburg. President Trump appointed Amy Coney Barrett as his third appointee, forming a conservative 6-3 supermajority. The Supreme Court’s jurisprudence is having a profound effect on public health, safety, and environmental policy. This Viewpoint looks back at the Supreme Court’s 2021 and 2022 terms and forward to the 2023 term and beyond.Public Health Powers During the COVID-19 Pandemic
Rather than deferring to scientific decisions during the COVID-19 pandemic, the Supreme Court often struck them down. The justices invalidated New York and California’s restrictions on religious gatherings (eTable in the Supplement) despite considerable evidence that congregate settings pose a high transmission risk. The Supreme Court similarly overturned the Centers for Disease Control and Prevention eviction moratorium despite findings that evictions contribute to the spread of SARS-CoV-2.
The issue for the Supreme Court is upholding the law, not whether the science correct. The focus on transmission risk ignores important tradeoffs. The failure to consider important tradeoffs is a fundamental analytical flaw.
The financial cost of eviction moratoriums selectively impact landlords. If an eviction moratorium is deemed desirable by society, Isn't it society that should pay, not only landlords? Why would politicians penalize only landlords - only for their own self-interest. An eviction moratorium is economically similar to a randomly applied substantial tax on landlords. Isn't the long-run response to this substantial risk to move the supply curve of rental residences to the left? Doesn't that reduce quantity and increase price?
The justices similarly blocked an Occupational Safety and Health Administration emergency temporary standard ordering large businesses to either require COVID-19 vaccination or regularly test employees. Scientists from the Occupational Safety and Health Administration estimated it would prevent 6500 deaths and 250 000 hospitalizations over 6 months. The Supreme Court narrowly upheld a mandate from the Centers for Medicare & Medicaid Services for health care workers to be vaccinated or undergo testing.
False and Misleading Scientific Information
Public trust in science is vital not only for an informed populous but also to enhance compliance with public health guidance. Yet, §230 of the Communications Decency Act protects social media companies against lawsuits regarding users’ posts even if they are false, misleading, or extremist.
The Supreme Court will decide whether §230 should shield giant technology companies from accountability. The Supreme Court is also considering whether to hear challenges to laws in Texas and Florida barring online platforms from removing certain political content. The outcome of these cases could upend the internet with vast significance for regulation of online media content.1
As we have seen over and over again, those who proclaim both truth and the necessity of stopping what they view as non-truth have been wrong on the former and produced much damage with the latter - including a loss of freedom that benefits those in power at the expense of others.
Environmental Health
The air we breathe and the water we drink have profound effects on health. Last term, the Supreme Court invalidated the Clean Power Plan, which would have required power plants to install energy-efficient devices and demonstrate progress toward sustainable energy. The justices relied on the “major questions” doctrine, which holds that Congress must explicitly authorize agency actions with major social or economic effects.
False and Misleading Scientific Information
Public trust in science is vital not only for an informed populous but also to enhance compliance with public health guidance. Yet, §230 of the Communications Decency Act protects social media companies against lawsuits regarding users’ posts even if they are false, misleading, or extremist.
The Supreme Court will decide whether §230 should shield giant technology companies from accountability. The Supreme Court is also considering whether to hear challenges to laws in Texas and Florida barring online platforms from removing certain political content. The outcome of these cases could upend the internet with vast significance for regulation of online media content.1
As we have seen over and over again, those who proclaim both truth and the necessity of stopping what they view as non-truth have been wrong on the former and produced much damage with the latter - including a loss of freedom that benefits those in power at the expense of others.
Environmental Health
The air we breathe and the water we drink have profound effects on health. Last term, the Supreme Court invalidated the Clean Power Plan, which would have required power plants to install energy-efficient devices and demonstrate progress toward sustainable energy. The justices relied on the “major questions” doctrine, which holds that Congress must explicitly authorize agency actions with major social or economic effects.
This is another issue of law for the Supreme Court. The authors ignore tradeoffs here, too. Installing energy efficient devices does not necessarily make sense. If it makes economic sense it would be done without a requirement - assuming Government had not already screwed up the economic setting.
Because most federal regulations have wide social and economic effects, the Supreme Court’s reasoning could prove fatal to many health, safety, and environmental regulations. Laws grant agencies broad discretion because Congress cannot anticipate every health threat, thus relying on agencies to confront new challenges. Federal agencies like the Environmental Protection Agency have far more subject matter expertise than Congress or the courts.
Because most federal regulations have wide social and economic effects, the Supreme Court’s reasoning could prove fatal to many health, safety, and environmental regulations. Laws grant agencies broad discretion because Congress cannot anticipate every health threat, thus relying on agencies to confront new challenges. Federal agencies like the Environmental Protection Agency have far more subject matter expertise than Congress or the courts.
And, as we have seen, Federal Agencies also have a substantial amount of self-interest that effects their decisions and hurts others. Economists did not invent the "agency problem" for no reason.
This term, the Supreme Court could further weaken the Environmental Protection Agency by narrowing the definition of “waters of the United States” under the Clean Water Act.2 The Supreme Court is widely expected to supplant the agency’s expertise with the court’s own judgement. The narrowed definition would exclude wetlands and the oil, gas, mining, and agricultural industries would be able to discharge pollutants into wetlands without even needing a permit. This would threaten natural habitats as well as waters for recreation, fishing, and drinking. Just as climate change has become a defining issue, the Supreme Court is curtailing regulatory action to ensure a cleaner environment.
This term, the Supreme Court could further weaken the Environmental Protection Agency by narrowing the definition of “waters of the United States” under the Clean Water Act.2 The Supreme Court is widely expected to supplant the agency’s expertise with the court’s own judgement. The narrowed definition would exclude wetlands and the oil, gas, mining, and agricultural industries would be able to discharge pollutants into wetlands without even needing a permit. This would threaten natural habitats as well as waters for recreation, fishing, and drinking. Just as climate change has become a defining issue, the Supreme Court is curtailing regulatory action to ensure a cleaner environment.
The Environmental Protection Agency has provided many wonderful examples of the damage that cam be caused by economic agency issues and the failure to address tradeoffs in a reasonable manner. What makes the authors think that the current practices and laws get it "just right"? If Government and Agency history is a guide, it's more likely to be too much now.
Firearm Safety
A conservative majority has drastically expanded the reach of the Second Amendment, limiting government action to prevent gun violence. Last term, the Supreme Court invalidated a New York law that, since 1911, has required a person to show proper cause for a license to carry a handgun outside the home. Lower courts have used this precedent to invalidate other long-standing, common sense gun laws.
On February 2, 2023, the Fifth Circuit Court of Appeals ruled unconstitutional a federal law banning gun possession by people subject to domestic violence restraining orders.3 Guns, now the leading cause of death in children and adolescents aged 1 to 19 years, have already taken more than 4000 lives in the US in 2023, with mass shootings occurring every day.4
Firearm Safety
A conservative majority has drastically expanded the reach of the Second Amendment, limiting government action to prevent gun violence. Last term, the Supreme Court invalidated a New York law that, since 1911, has required a person to show proper cause for a license to carry a handgun outside the home. Lower courts have used this precedent to invalidate other long-standing, common sense gun laws.
On February 2, 2023, the Fifth Circuit Court of Appeals ruled unconstitutional a federal law banning gun possession by people subject to domestic violence restraining orders.3 Guns, now the leading cause of death in children and adolescents aged 1 to 19 years, have already taken more than 4000 lives in the US in 2023, with mass shootings occurring every day.4
The authors' comment reflects an almost total misunderstanding of the impact of gun laws. Virtually all the best academic papers show this. In particular, many "common-sense" gun laws have been statistically shown to be either ineffective or to worsen the problem. If you want to get the real story, try "More Guns Less Crime" by John Lott. Pay particular attention to the sections where he goes through the lies and lousy statistics of those who try to discredit him. also check out the Center for Crime Prevention Research.
Abortion Rights
Last term marked the first time in history the Supreme Court withdrew a constitutional right, finding that a right to abortion was not “deeply rooted in our Nation’s history.” At least 13 states have fully banned abortion and 5 states have partial bans on abortion while proposed abortion bans remain blocked in 8 states. These restrictions have caused a patient’s average travel time to an abortion facility to more than triple.
Abortion Rights
Last term marked the first time in history the Supreme Court withdrew a constitutional right, finding that a right to abortion was not “deeply rooted in our Nation’s history.” At least 13 states have fully banned abortion and 5 states have partial bans on abortion while proposed abortion bans remain blocked in 8 states. These restrictions have caused a patient’s average travel time to an abortion facility to more than triple.
I love it. Competition among the States for population is what might work best, just as it often does elsewhere. By the way, can you find any right to abortion in the Constitution. That said, I am for allowing it under broad circumstances.
Abortion bans have the most significant effect on individuals who lack the resources and support to travel longer distances as well as minors, racial and ethnic minority individuals, non-English speakers, and migrants. The ruling spurred crucial legal questions, including whether emergency medical care must include abortion services. Litigation is also ongoing over approval of abortion medications by the Food and Drug Administration.
LGBTQ+ Rights
Last term, the Supreme Court ruled that a city-funded Catholic social services agency could deny same-sex couples the opportunity to foster children in defiance of Philadelphia’s antidiscrimination law. The unanimous decision centered on a technicality in the law. More alarming was a concurring opinion by Justices Alito, Gorsuch, and Thomas that argued for overturning the 1990 ruling in Employment Division v Smith,7 which established that generally applicable laws do not require religious exemptions. The justices’ advocacy for religious rights could undermine vaccination mandates, while also legitimizing discrimination against the LGBTQ+ community.
Abortion bans have the most significant effect on individuals who lack the resources and support to travel longer distances as well as minors, racial and ethnic minority individuals, non-English speakers, and migrants. The ruling spurred crucial legal questions, including whether emergency medical care must include abortion services. Litigation is also ongoing over approval of abortion medications by the Food and Drug Administration.
LGBTQ+ Rights
Last term, the Supreme Court ruled that a city-funded Catholic social services agency could deny same-sex couples the opportunity to foster children in defiance of Philadelphia’s antidiscrimination law. The unanimous decision centered on a technicality in the law. More alarming was a concurring opinion by Justices Alito, Gorsuch, and Thomas that argued for overturning the 1990 ruling in Employment Division v Smith,7 which established that generally applicable laws do not require religious exemptions. The justices’ advocacy for religious rights could undermine vaccination mandates, while also legitimizing discrimination against the LGBTQ+ community.
If the law is upheld, so be it. And if some organizations have adoption practices you don't like, why not go elsewhere? Better to have more freedom for individuals and groups than less - unless it eliminates choices (as opposed to simply "going down the street") or threatens substantial harm to others (e.g. assault by activists).
This term, the Supreme Court will decide whether businesses open to the public can refuse to serve LGBTQ+ individuals. If the Supreme Court places commercial expression above LGBTQ+ rights, it could relegate LGBTQ+ individuals to a disfavored class, further narrowing access to goods and services. LGBTQ+ people already face higher rates of violence and discrimination, putting them at risk for physical and mental harms.
This term, the Supreme Court will decide whether businesses open to the public can refuse to serve LGBTQ+ individuals. If the Supreme Court places commercial expression above LGBTQ+ rights, it could relegate LGBTQ+ individuals to a disfavored class, further narrowing access to goods and services. LGBTQ+ people already face higher rates of violence and discrimination, putting them at risk for physical and mental harms.
Refusing to serve is not equivalent to violence. I favor freedom over tyranny - even when the freedom allows behavior I don't like to persist.
Medicaid
This term, the Supreme Court will decide whether Medicaid recipients can challenge state denials of federally guaranteed benefits. A federal law known as §1983 has long granted individuals denied benefits access to the courts.8 Decades of precedent support a judicial pathway to enforce rights under federally funded programs (eg, Medicaid, the Supplemental Nutrition Assistance Program, and Temporary Assistance for Needy Families). Yet the Supreme Court may find these programs are simply contracts between states and the federal government, with no enforceable rights. Low-income individuals would have federally protected rights, but no remedy when states deny benefits for which they are eligible. Medicaid and the Children’s Health Insurance Program are among the few safety nets for low-income individuals, and are used by 90 million individuals in the US. Especially as states wind down COVID-19 protections, Medicaid enrollees need an outlet to safeguard benefits wrongfully denied.
Speculation? Guilty until proven innocent?
Health Equity
This year, the Supreme Court is poised to rule on cases that go to the heart of equity in US society. In 2 consolidated cases, the Supreme Court is expected to invalidate affirmative action designed to increase diversity and opportunity in higher education. Yet as Justice Ketanji Brown Jackson stated, education is a major social determinant of health. American Indian, Black, Hispanic, and Pacific Islander populations remain vastly underrepresented in higher education. These groups experience less economic opportunity, less representation in the health care workforce, and fill fewer leadership positions.
Medicaid
This term, the Supreme Court will decide whether Medicaid recipients can challenge state denials of federally guaranteed benefits. A federal law known as §1983 has long granted individuals denied benefits access to the courts.8 Decades of precedent support a judicial pathway to enforce rights under federally funded programs (eg, Medicaid, the Supplemental Nutrition Assistance Program, and Temporary Assistance for Needy Families). Yet the Supreme Court may find these programs are simply contracts between states and the federal government, with no enforceable rights. Low-income individuals would have federally protected rights, but no remedy when states deny benefits for which they are eligible. Medicaid and the Children’s Health Insurance Program are among the few safety nets for low-income individuals, and are used by 90 million individuals in the US. Especially as states wind down COVID-19 protections, Medicaid enrollees need an outlet to safeguard benefits wrongfully denied.
Speculation? Guilty until proven innocent?
Health Equity
This year, the Supreme Court is poised to rule on cases that go to the heart of equity in US society. In 2 consolidated cases, the Supreme Court is expected to invalidate affirmative action designed to increase diversity and opportunity in higher education. Yet as Justice Ketanji Brown Jackson stated, education is a major social determinant of health. American Indian, Black, Hispanic, and Pacific Islander populations remain vastly underrepresented in higher education. These groups experience less economic opportunity, less representation in the health care workforce, and fill fewer leadership positions.
Ok, let's have diversity in higher education. Hire more Conservatives. I favor merit, not diversity or equity. The history of actions to increase diversity and equity suggests less diversity, less merit based decision making, less freedom, more cancelation, and is probably a large contributor to our current steep cultural downtrend.
Forbidding racial- and ethnic-based decisions could also derail public health programs designed to reduce health inequities by prioritizing underserved populations. The Supreme Court could also overturn the Indian Child Welfare Act (ICWA) that prioritizes placement with tribal families when American Indian children are removed from their homes. The ICWA was enacted in 1978 in response to a history of forcibly removing American Indian children from their families to send them to boarding schools as a form of cultural genocide.10 Medical organizations argue that the ICWA promotes stability, helping children overcome trauma.
Forbidding racial- and ethnic-based decisions could also derail public health programs designed to reduce health inequities by prioritizing underserved populations. The Supreme Court could also overturn the Indian Child Welfare Act (ICWA) that prioritizes placement with tribal families when American Indian children are removed from their homes. The ICWA was enacted in 1978 in response to a history of forcibly removing American Indian children from their families to send them to boarding schools as a form of cultural genocide.10 Medical organizations argue that the ICWA promotes stability, helping children overcome trauma.
Hmm, removing children from their homes and placing them on a priority basis in homes that may be less than the best choice? The past is the past. What makes the most sense now? How about leaving the priorities up to those involved instead of mandating them?
Conclusions
The Supreme Court’s 6 conservative justices are bringing vast changes to the public health legal landscape. The Supreme Court is impairing the government’s ability to act in the public interest and undermining safeguards for groups that have been historically marginalized. Yet far from affecting only a subset of US individuals, the justices are weakening public health, with health and equity on the line.
Conclusions
The Supreme Court’s 6 conservative justices are bringing vast changes to the public health legal landscape. The Supreme Court is impairing the government’s ability to act in the public interest and undermining safeguards for groups that have been historically marginalized. Yet far from affecting only a subset of US individuals, the justices are weakening public health, with health and equity on the line.
Yes, we've seen what happens to public health as a consequence of Government micro-management - and it is not pretty.
Is it the Supreme Court that is impairing the Government's ability to act in the public interest? Is law supposed to be upheld or is it supposed to be subjugated to what the authors and their ilk want?
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