Promoting the General Welfare, The Supreme Court’s Version of Doing So

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Bill Haskell
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I believe Angry Bear can present this excellent article on how the Supreme Court is evolving its interpretation of the Public Health. I am using it as informational and instructional to Angry Bear readers. A brief analysis of the SCOTUS philosophy on Public Health and their impact on the government and its legislation. It is brief enough and stated in nontechnical terms allowing a layman to pickup on it rather easily.

The Public Good on the Docket — The Supreme Court’s Evolving Approach to Public Health

by Joshua M. Sharfstein, M.D., and Lawrence O. Gostin, J.D.

The New England Journal of Medicine

A PERSPECTIVE

The preamble to the U.S. Constitution states that a central aim of government in U.S. democracy is to “promote the general Welfare.” James Madison wrote in the Federalist Papers that “the public good, the real welfare of the great body of the people, is the supreme object to be pursued” and added that “no form of government whatever has any other value than as it may be fitted for the attainment of this object.” 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.

And yet, the modern Supreme Court has imposed a new and rigid set of legal principles that impedes the ability of states, Congress, and agencies to use public health evidence to protect the public. In several cases to be decided this term, the justices will have the opportunity to either double down on or reconsider this approach.

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 safe guard 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. Synthesizing a century of case law in public health, Justice John Marshall Harlan’s opinion for the Court explained that the government and its citizens are engaged in 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. State officials had imposed the same restrictions on religious gatherings as they did on movie theaters, concert venues, and other places where people gather for extended periods, relying on evidence of similar transmission risk in these settings. Writing in dissent in South Bay United Pentecostal Church v. Newsom (2021), Justice Elena Kagan noted that the Court was “forcing California to ignore its experts’ scientific findings” and, in doing so, was impairing “the State’s effort to address a public health emergency.”

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 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. Justice Stephen Breyer, in dissent, wrote the Court “refuses to consider the government interests that justify a challenged gun regulation, regardless of how compelling those interests may be.”

The Court’s increasing skepticism of state public health actions has extended to Congress and federal agencies. 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. In 1793, approximately 5000 Philadelphians, out of a total population of 50,000, died from yellow fever.¹ In 1796,
Congress adopted An Act Relative to Quarantine, authorizing the president, “in such manner as may to him appear necessary,” to direct federal officers to assist states in the execution of their quarantine and health laws. Since that time, courts have repeatedly allowed federal officials and agencies the flexibility, under broad delegations of power from Congress, to use evidence to protect health 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 Congress must, in advance, spell out specific hazards and the actions that an agency may take to address them. Congress is not equipped to make precise predictions about future health hazards, however, nor do legislators have the expertise to manage ongoing health crises. The major questions doctrine could keep the Food and Drug Administration (FDA) from responding quickly to the emergence of a new harmful substance in the food supply, for example, or the EPA from addressing a previously unrecognized environmental hazard. Indeed, in the previous case of National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration (OSHA) (2022), the Court had used similar logic to strike down OSHA’s temporary emergency rule directing large businesses to require their employees to either be vaccinated against
Covid-19 or take weekly tests.

This term, the Court appears to be poised to further undermine federal agencies. In Relentless v. U.S. Department of Commerce and Loper Bright Enterprises v. Raimondo, the Court is expected 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, will be able to substitute their judgment more readily for that of agency scientists.

In two other cases, the Court is confronting the consequences of the judiciary’s incursion into public health policy. In United States v. Rahimi, the Court will rule on the constitutionality of a federal law prohibiting people who are subject to domestic violence–related restraining orders from possessing guns. Under the Bruen decision, because these specific prohibitions did not exist in the 18th and 19th centuries, it might seem that the law should be struck down. But taking weapons out of the hands of perpetrators is associated with significant reductions in intimate-partner homicides.² By upholding the law, the Court could indicate that it is again recognizing the value of evidence and take a step back from its misguided
“historical” test.

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. This case arose from a claim by antiabortion medical organizations and several physicians that caring for people who have complications after taking mifepristone would harm their consciences, a claim that was endorsed by lower-court judges who purported to undertake their own assessment of the health risks associated with the drug.^3,4

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.⁵ The Court could now rule that the claim of moral injury does not provide the basis for standing to attempt to upend the FDA’s regulatory oversight and, in the process of preserving access to mifepristone, demonstrate respect for the nonpartisan expertise of career government scientists.

Responsibility for protecting the health and safety of the public has long rested with states, Congress, and federal agencies. The current Supreme Court, however, is erecting substantial obstacles to their efforts to fight the scourges of the 21st century. What the Court does next could have profound consequences for public health, medicine, and the public good.

Notes:

From the Department of Health Policy and Management, Johns Hopkins Bloomberg School of Public Health, Baltimore (J.M.S.); and the O’Neill Institute for National and Global Health Law, Georgetown University Law Center, Washington, DC (L.O.G.). This article was published on April 24, 2024, at NEJM.org.

1. Ruane ME. Yellow fever led half of Philadelphians to flee the city. Ten percent of the residents still died. Washington Post. April 4, 2020 (https://www.washingtonpost.com/
   history/2020/04/04/yellow-fever-led-half -philadelphians-flee-city-ten-percent -residents-still-died/).
2. Zeoli AM, McCourt A, Buggs S, Frattaroli S, Lilley D, Webster DW. Analysis of the strength of legal firearms restrictions for perpetrators of domestic violence and their associations with intimate partner homicide. Am J Epidemiol 2018;187:2365-71.
3. Watson K. A physician attack on the FDA — will the Supreme Court reduce access to mifepristone? N Engl J Med 2024;390:563-7.
4. Wadman M. What’s at stake for science in ‘abortion pill’ case. Science 2024;383: 689-90.
5. Auerbach JN, Sharfstein JM. The Supreme Court’s new direction and the public’s health. JAMA Health Forum 2022;3(7): e222978. DOI: 10.1056/NEJMp24036