The first Monday of October marked another Supreme Court term. For those passionate about health and human rights, this brought a painful reminder of how last term's decisions unraveled public health progress, altering the reality of American life. This article -- marking the official launch of my ڴŮ column The Health Docket -- looks back at the Court's 2022 term, while my next will explore deeply consequential cases on the Supreme Court's docket for its 2023 term.
Our 235-year-old Constitution does not confer a right to health, yet landmark Court precedents have affirmed robust public health powers and advanced modern health rights. In the age of COVID-19, a newly emboldened 6-3 conservative supermajority weakened public health powers, while unraveling highly valued personal rights. At stake were the most consequential issues of our time: emergency health powers, climate change, abortion, firearm safety, and LGBTQ+ rights.
Weakening Public Health Powers and Undermining Science
Since (1905), which upheld mandatory smallpox vaccinations, and FDR's New Deal, which supported expansive federal health and safety powers, the judiciary has embraced a robust understanding of the common good. But the current conservative supermajority has weakened public health powers -- often echoing in conservative media.
The most vivid illustrations of our ideologically-driven Court occurred during the height of the COVID-19 pandemic. In late 2020, the Court upheld restrictions on social gatherings in California and Nevada, finding of religious freedoms. Only months later, the Court reversed its own precedent in two 5-4 decisions, with Justice Amy Coney Barrett's appointment flipping the outcome -- invalidating and emergency measures. Still worse, the justices substituted their own judgement for that of career scientists. Public health agencies were right to be concerned about the risks to congregants in closed settings. Early in the pandemic, religious congregations became venues for of infection.
This substitution of judgment became evident again in , which an Occupational Safety and Health Administration (OSHA) emergency temporary standard requiring large businesses to either vaccinate or test employees. OSHA estimated its vaccine-or-test rule would prevent 6,500 deaths and 250,000 hospitalizations over 6 months. Diverting from a long history of agency deference, the Court rejected scientific findings that vaccinating-or-testing would safeguard workers' health.
The three most conservative justices (Neil Gorsuch, Samuel Alito, and Clarence Thomas) went further, asserting OSHA ran afoul to the "major questions" doctrine, which sets a very high bar for congressional authorization of agency actions that have major impacts on society and the economy. This clashes with the fact that Congress has delegated wide powers to the FDA, CDC, and Environmental Protection Agency (EPA) precisely because of their scientific expertise.
The major questions doctrine was determinative in (2022), which struck down the Obama-era Clean Power Plan that had required power plants to install energy efficient devices and progress toward sustainable energy -- even though the Plan was never implemented. Aside from diminishing EPA's ability to tackle climate change, the ruling could effectively handcuff federal agencies.
The modern regulatory state has helped keep our food uncontaminated, medicines safe, air clean, and water pure. Congress relies on federal agencies to shape national policy because they are staffed with subject matter experts who can act rapidly, with flexibility, and with less political influence. Yet, agency powers are being imperiled. Next, I turn to recent Court rulings undermining human health and dignity.
Unraveling Health Rights
Abortion and Reproductive Rights
(2022) marked the first time in history the Supreme Court overturned a well-established constitutional right. (1973) ruled that women have the right to abortion before fetal viability. Roe was widely considered a "" because the Court had reaffirmed it time and again. Chief Justice John Roberts (an institutionalist devoted to the Court's legitimacy) preferred incremental reform, yet the 5 remaining conservative justices overturned Roe because abortion rights were not "deeply rooted in the nation's history and tradition."
Choosing whether to bear children is integral to human health, dignity, and civic and economic participation. Millions of Americans had come to rely on reproductive freedoms, but Dobbs impacted the most marginalized. With over half the states adopting tighter restrictions or prohibitions on abortion, the same medical procedure legally protected in one state could land an abortion provider up to in another. Conservative state lawmakers are also targeting medication abortions. Where a person lives or whether they have resources to travel is now determinative in accessing basic reproductive healthcare.
Months before Dobbs, the Supreme Court refused to strike down that empowered any citizen to sue individuals who "aid or abet" in an abortion after about 6 weeks' gestation. SB8 was expressly designed to evade any constitutional review because the state itself could not enforce the law's abortion restrictions. Remarkably, the Supreme Court proved a willing accomplice, a huge blow to the rule of law and democratic legitimacy.
Firearm Safety
States' rights to enact gun control has had an even longer history. Since the founding of the Republic until 2008, the Second Amendment was a purely collective right connected to the formation of a "militia." Even in 2008, Justice Antonin Scalia interpreted Second Amendment protection quite narrowly. But in (2022), the Supreme Court struck down a 108-year-old handgun-licensing law because it was not part of the nation's history and traditions. If a century-old licensing law did not pass an historical test, what would? Justices, of course, have no special expertise in history. Most historians saw a long tradition of "proper cause" to carry a firearm in public.
shows that states with stronger gun laws experience less gun violence. Simply put, more guns lead to more gun injuries and deaths. In a country with more guns than people, and in an era where gun violence has made us second guess the safety of attending a concert, visiting a house of worship, or sending our kids to school, forcing states to weaken gun laws in the name of "history" is deeply problematic.
LGBTQ+ Rights
In (2022), the Court ruled unanimously that a city-funded Catholic social services agency could defy Philadelphia's prohibition on discrimination based on sexual orientation, and refuse to help same-sex couples applying to foster children. The Court's unanimity reflected a compromise: the opinion focused narrowly on the city's contract with foster care agencies, which explicitly allowed for exceptions. It was this exception that allowed the religious group to prevail.
While the decision was narrow, a concurring opinion by Justices Alito, Thomas, and Gorsuch would have prioritized religious freedoms over LGBTQ+ rights. Alito wanted to overturn the landmark case (1990), which held that generally-applicable laws do not violate religious freedoms. As Justice Scalia acknowledged in that case, allowing religious exceptions to neutral laws would "open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind," such as compulsory military service, tax payment, vaccination requirements, and child neglect laws. Overturning Smith could also sanction discrimination against the LGBTQ+ community, including by businesses, employers, schools, and services. translates into bad health outcomes -- both by rendering health and social services less accessible, and by increasing physical and psychological violence against LGBTQ+ people.
The 2022 term made it abundantly clear that the justices are not acting as neutral arbiters of the constitution. On the most politically contentious issues of our time, justices' opinions are almost entirely predictable. The Court is usurping the prerogative of Americans to use democratic governance to construct a society that protects the public's health and safety and defends fundamental rights to dignity -- for us and our children and grandchildren. Later in The Health Docket I will explain how the Court has undermined democracy itself, and what we can do about it.
is university professor, Georgetown University's highest academic rank, where he directs the O'Neill Institute for National & Global Health Law. He is also director of the World Health Organization Collaborating Center on National & Global Health Law, and the author of .