Supreme Court Placing Obstacles to Public Health

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JM Sharfstein, LO Gostin. NEJM 2024; 390: 1637-1639: The Public Good on the Docket — The Supreme Court’s Evolving Approach to Public Health

This article provides a great summary of how the current Supreme Court has undermined the ability of Congress, federal agencies and states in their efforts to safeguard public health.

Some excerpts:

The preamble to the U.S. Constitution states that a central aim of government in U.S. democracy is to “promote the general Welfare… From the earliest days of the republic, U.S. courts have upheld public health laws and regulations in large part on the basis of their importance for protecting the well-being of communities…

Under the Constitution, states have the primary responsibility and authority to protect the public’s health and safety — often termed “police powers.” In Gibbons v. Ogden (1824), Chief Justice John Marshall observed that states have a long tradition of enacting “inspection laws, quarantine laws, [and] health laws of every description.” In the landmark Slaughter-House Cases (1873), the Court affirmed the states’ power to safeguard health, even when doing so requires restricting liberties. The foundational 20th-century case is Jacobson v. Massachusetts (1905), which upheld the authority of states to mandate smallpox vaccinations…a social compact that recognizes not only the rights of the individual but also the needs of a community “to protect itself against an epidemic of disease which threatens the safety of its members.”

In recent years, however, the Supreme Court’s majority has increasingly blocked states from using public health evidence to protect community safety. During the Covid-19 pandemic, the Court struck down public health orders in California on the basis of religious-liberty concerns…

For most of our country’s history, the Court consistently upheld a wide variety of firearm-safety laws. But in New York State Rifle & Pistol Association v. Bruen (2022), it struck down a New York law requiring applications for concealed carry permits by demanding that laws regulating firearms be “analogous” to laws enacted in the 18th and 19th centuries — even though current high-capacity, powerful firearms bear little resemblance to guns that existed early in U.S. history…

 For more than 200 years, courts have accepted that Congress has the power to charge federal agencies with carrying out laws to protect the country’s health and safety and the environment…Yet today’s Supreme Court is significantly constraining the authority of Congress to provide broad direction to agencies. In West Virginia v. Environmental Protection Agency (EPA) (2022), the Court announced a new “major questions doctrine,” holding that Congress must, in advance, spell out specific hazards and the actions that an agency may take to address them…

This term, the Court appears to be poised to…invalidate the long-standing Chevron doctrine, whereby judges give deference to expert agencies in resolving ambiguities in the laws they enforce. Absent Chevron deference, judges will be able to substitute their judgment more readily for that of agency scientists…

In FDA v. Alliance for Hippocratic Medicine, the Court will determine whether the FDA can set science-based policies governing access to mifepristone, a medication used for abortion…The case comes in the shadow of the Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), in which the majority not only abandoned the right to abortion established in Roe v. Wade after nearly 50 years but also criticized the Roe Court for considering evidence about abortion’s relevance to women’s health.

My take: This court’s rulings have already resulted in profound consequences for public health and individual freedoms. In addition for trying to claim “historical” precedents to establish rulings (when it conveniently the interpretation conveniently aligns with their predetermined views), the court is undermining the role of expertise at every turn.

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