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May 4, 2023
Joshua N. Auerbach
Joshua M. Sharfstein
Mar 22, 2023
Feb 15, 2023
Jun 8, 2022
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Two recent, much-discussed decisions from federal courts in Texas—one striking down the Affordable Care Act’s requirements for insurance coverage of preventive health services, the other invalidating the US Food and Drug Administration’s approval of the abortion drug mifepristone—illustrate a deepening tension between the public health community and the courts. Both decisions are now on appeal and may not ultimately be affirmed. Nonetheless, they reflect a dangerous tendency in American law of courts asserting power for themselves at the expense of agencies that use evidence and expertise to promote health and save lives.
In recent years, as COVID, firearm-related homicides and suicides, and drug overdoses drove the greatest decline in US life expectancy in nearly a century, the courts have issued a number of decisions impeding the public health responses to these crises and the practice of public health more generally. These include the major decisions from the Supreme Court’s last term on abortion, guns, climate change, and COVID mitigation, where the Court not only took actions that will adversely affect Americans’ health, but also repeatedly deemed public health impact to be an impermissible consideration in interpreting and applying the Constitution.
In Bruen v. New York State Pistol & Rifle Association, where the Court struck down a century-old New York law regulating gun possession, the Court majority expressly declined to “make difficult empirical judgments about the costs and benefits of firearms restrictions” and questioned whether public safety and public health considerations have any “legitimate” bearing at all on the interpretation and application of the Second Amendment.
In lower federal courts and state courts, judges brushing aside the significance of public health have at times also revealed a deep distrust of, or even hostility toward, public officials. For example, the Wisconsin Supreme Court repeatedly invalidated actions taken by state and local public health leaders to reduce the spread of COVID during the first year of the pandemic. Three of the court’s seven justices stated last summer that a health officer had “exercised dictatorial powers” and instituted a reign of “tyranny” and “technocracy” in the state’s largest county.
What’s happening here?
Much of public health practice resides inside what the conservative legal movement, now ascendant in the federal courts, refers to as “the administrative state.” At multiple levels of government, public health measures are implemented by administrative agencies staffed by people with health-related expertise—including scientists, physicians, health economists. The term “administrative state” is increasingly deployed in judicial opinions as a pejorative term to imply that these agencies, along with those protecting consumers, workers, and the environment, constitute a “state” apart from and unaccountable to the people of the country.
Donald McGahn, former President Trump’s White House counsel, in a 2018 speech to the Federalist Society, declared that the “regulatory state” represents “[t]he greatest threat to the rule of law in our modern society” and expressly linked the Trump Administration’s appointment of judges to the long-running project of reducing the authority of administrative agencies.
This project, which has now begun to come to fruition through a variety of doctrinal innovations in recent judicial decisions, claims to proceed from democratic values. The “major questions doctrine,” for example, announced by the Supreme Court during its last term, states that agencies may not take actions on “major” issues unless Congress expressly said so. This new principle emerged in a decision that prevented the Environmental Protection Agency (EPA) from taking steps to address climate change through the regulation of power plants, on the grounds that, at the time of passing the Clean Air Act, Congress did not specifically contemplate the agency’s future action.
Though wrapped in the rhetoric of representative democracy and accountability, these doctrinal innovations are anti-democratic in practice. They empower judges, while disempowering democratically elected legislative bodies from charging administrative agencies acting under the direction of democratically elected executive branch officials with the responsibility to address new problems in the agency’s field of expertise. These doctrines cast a particularly concerning shadow over the practice of public health, where officials often must respond quickly to novel and emerging threats, based on analysis of complex and potentially ambiguous scientific and medical data, under circumstances where legislative bodies could not conceivably do so.
The movement to “reform” the “administrative state” at times allies itself with free market libertarianism, particularly in its opposition to environmental and consumer protection regulation of business activity. Yet the recent Texas mifepristone decision flows in the opposite direction, restricting access to a medicine found to be safe and effective and supported not only by the FDA but by all relevant major medical professional associations, as well as, of course, the company that manufactures the drug.
The mifepristone case reflects an uncomfortable truth: Closer than libertarianism to the heart of the movement is a deep skepticism toward the role of experts and expertise in the making of public policy. Concurring in the Supreme Court’s decision last term to prevent the EPA from regulating power plants, Justices Gorsuch and Alito stated that the framers of the Constitution had “designed the federal lawmaking process to capture the wisdom of the masses,” while linking the “administrative state,” as embodied in the EPA’s 2015 effort to address climate change, to racist statements made in the early 1900s by Woodrow Wilson.
In the Texas case on access to preventive services under the Affordable Care Act, the court’s action centered on another expert body. More than 10 years after the passage of the law, the court found that Congress could not constitutionally decide to require insurance coverage of services deemed both effective and cost-effective by the US Preventive Health Services Task Force without establishing an appointment and confirmation process for each member of the task force equivalent to that for cabinet secretaries and other senior executive branch officials. The court criticized Congress for “dressing up legal directives as expert recommendations.”
While pushing science and evidence to the side, the conservative legal movement has sought to claim space in the policymaking process for traditional religious and moral beliefs. Its argument is that judges should recognize “harm” or “injury” to religious belief caused by attenuated or speculative chains of events or circumstances.
In the two recent Texas decisions, for example, the courts found that the plaintiffs experienced harm sufficiently concrete to afford them legal standing to sue from their proximity to the provision of health care to people whose conduct they deem immoral. In the preventive services decision, the court found that an employer claiming to have conservative religious beliefs had standing to enforce the constitution’s requirements for the appointment of public officials, because, supposedly, he experienced “dignitary harm” from being required to provide insurance that covers pre-exposure prophylaxis for HIV infection. It was found that the reimbursement for such prophylaxis by the employer’s insurance plan would injure the employer by “mak[ing] him complicit in encouraging” his employees to engage in “homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.”
In the mifepristone decision, the court found that emergency room physicians personally opposed to abortion had standing to challenge the process utilized by the FDA to approve the medicine based on a potential indirect impact of use of the medicine on their own medical practices. The court found that the physicians experience moral harm, not from the possibility that they might be called on to administer mifepristone, but from the mere possibility that they might be required to treat patients who need emergency care as a result of complications from having previously taken the medicine.
These emerging judicial conceptions of “injury,” however, do not include any openness to consideration of evidence regarding what is harming the health of Americans. In the two Texas cases, the courts found asserted harm to religious belief to be a sufficient basis for judicial intervention, but the courts then, in exercising their power, found the law to be indifferent to the harms caused by denying millions of Americans access to safe and effective therapies.
It will be no easy task to repair this rift. Federal judges are not elected and have life tenure. Thus, most of the judges now intervening so aggressively in the work of the politically accountable branches of government and claiming to do so for the purposes of strengthening political accountability, are not themselves politically accountable. For better or worse, many state court judges are elected by voters, and it is notable that an electorate in Wisconsin, opposed to the judicial rollback of access to reproductive health care has now, in two successive elections, substantially shifted the balance of power at that state’s Supreme Court.
What’s needed is a strategy to mobilize understanding and engagement, starting with collaborations between health professionals and legal scholars geared toward elaborating the role of public health evidence and expertise in policymaking, and in saving lives. It will also take commitment to this pragmatic idea over a long period of time, since courts cannot and do not change direction overnight. Our country faces a series of profound and lethal health challenges. Courts should be attuned to these challenges and respect the essential work of those working to address them.
Joshua N. Auerbach is a lawyer in the Office of the Attorney General of Maryland whose work focuses on health- and consumer protection-related affirmative litigation. He has previously served as principal counsel to the Maryland Department of Health and as a special assistant to Attorney General Brian Frosh. He began his legal career as a law clerk to the Honorable Diana Gribbon Motz, a judge on the U.S. Court of Appeals for the Fourth Circuit. He is a graduate of Harvard Law School and Yale College.
Joshua M. Sharfstein is associate dean for public health practice and training at the Johns Hopkins Bloomberg School of Public Health. He served as secretary of the Maryland Department of Health and Mental Hygiene from 2011 to 2014, as principal deputy commissioner of the US Food and Drug Administration from 2009 to 2011, and as the commissioner of health in Baltimore, Maryland, from December 2005 to March 2009. From July 2001 to December 2005, Sharfstein served on the minority staff of the Committee on Government Reform of the US House of Representatives, working for Congressman Henry A. Waxman. He serves on the Board on Population Health and Public Health Practice of the Institute of Medicine and the editorial board of JAMA. He is a 1991 graduate of Harvard College, a 1996 graduate of Harvard Medical School, a 1999 graduate of the combined residency program in pediatrics at Boston Medical Center and Boston Children’s Hospital, and a 2001 graduate of the fellowship program in general pediatrics at the Boston University School of Medicine.
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