These are tumultuous times for the Supreme Court. Since Justice Amy Coney Barrett joined the Court in October 2020, the justices have issued a series of unprecedented decisions that have reshaped health law and policy in ways that will impede the health of all Americans. Among these decisions are orders blocking CDC’s eviction moratorium, halting OSHA’s order requiring large employers to mandate vaccination or testing and masking, lifting a lower court injunction allowing medication for abortions to be prescribed via telehealth, and enjoining several state COVID-mitigation measures as violations of religious liberty. Now it appears from Justice Alito’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization that the Court will soon overturn Roe v. Wade. In June, it is also likely to limit states’ ability to regulate firearms.
Many explanations, including partisanship and the ascendency of the “originalism” approach to interpreting the Constitution, might explain the dramatic shift in the Supreme Court’s approach to health. Yet two additional trends merit more attention: the diminishing role that public health plays in American law, and the Court’s embrace of the conservative movement’s broad rejection of expertise.
For most of American history, courts treated the protection of health as an important aspect of the social contract, one that is implicitly woven into our laws. This centrality of public health to law—encapsulated by the legal maxim salus populi suprema lex (the health and well-being of the public is the highest law)—was widely accepted in 19th- and 20th-century state and federal court decisions. The most famous constitutional case evincing health’s centrality was the Supreme Court’s 1905 decision in Jacobson v. Massachusetts, which upheld a Cambridge, Mass., vaccination mandate. In it, Justice John Marshall Harlan wrote, “There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.”
Harlan did not believe that government’s power to protect health was unlimited. Instead, he made clear that actions taken in the name of public health had to be “reasonable” and have a “real or substantial relationship” to the state’s health goals. But he also accepted that the question of whether a law was in fact suited to protect health was one that should largely be left to the elected branches and the health officials to whom they delegated power, “presumably, because of their fitness to determine such questions.” Thus Harlan, like most judges in our history, accepted that sometimes limiting individual liberty was necessary to secure public health, and that the courts should defer largely, but not absolutely, to the experts who were most qualified to decide how to do so.
This deference to expertise often led courts to look to and rely on the guidance offered by scientists and medical experts, as Justice Harry Blackmun did in Roe v. Wade. To offer only one other, less well-known example, while determining in 1987 whether a school could fire a teacher with tuberculosis without violating federal protections for people with disabilities, the Court adopted a legal test offered by the American Medical Association, and then stated, “In making these findings, courts normally should defer to the reasonable medical judgments of public health officials.”
Times have changed. Today’s conservative jurists have adopted the anti-expertise, populist stance of the larger conservative movement and are far less inclined than conservative judges in the past to prioritize health or value expertise. Although Chief Justice John Roberts counseled for deference to “politically accountable officials” early in the pandemic, the majority tossed it aside once Barrett joined the bench. Since then, the Court has shown scant concern for the health consequences of its decisions. For example, the Court has blocked OSHA’s “vaccine-or-test” mandate rule even though it did not disagree with OSHA’s finding that the mandate would save 65,000 deaths. Some of the justices have even gone so far as to suggest that preventing deaths from COVID may no longer be a compelling state interest. And in his draft opinion overturning Roe, Justice Alito showed little to no concern over the harm to women’s health that his decision might cause. Indeed, nowhere in the opinion does he even hint that the Constitution might require states to permit abortions when necessary to save a pregnant person’s life or health. Though he did not say, “that’s not my business,” he might as well have.
Along with the deprioritizing of health has come a disregard for science. For example, in blocking state COVID-mitigation measures, the Court ignored the evidence of scientific experts, relying instead on its own intuition as to what risks were comparable to those that the state tried to address. This disregard for science was also all-too-apparent in the Court’s consideration of the Dobbs case. After the Jackson Women’s Health clinic’s attorney tried to turn the Court’s attention to the reams of scientific evidence establishing the importance of abortion access to “women’s equal protection in society,” the chief justice asked her to put “that data aside.” And in his leaked draft, Alito seemed more interested in how the law regulated medical practice before 1868 (the year the 14th Amendment was adopted) than what experts have to say today, which is that abortion is safe and critical to women’s health. Indeed, Alito’s opinion took Roe to task for relying so heavily on medical judgment, arguing that courts normally should defer to the judgments of states about issues “fraught with medical and scientific uncertainties.” Yet in cases concerning the pandemic, he has cast state judgments aside too.
The Court’s majority, it seems, simply does not believe that either health or science matter. Nor does it think that science has much to offer to law. Instead, the majority views law, like theology, as standing apart from the empirical world, and it seems uninterested in the methods developed by scientists over the centuries to understand that world. Call this the jurisprudence of the post-Enlightenment era. It may take us to a very dark and dangerous place.
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