Throughout the year, Lawrence O. Gostin, JD, LLD, and Sarah Wetter, JD, MPH, have weighed in on several major Supreme Court cases and decisions affecting American health and healthcare. As part of our series looking ahead to next year, Gostin and Wetter share their analysis of the major cases on the Supreme Court’s docket for 2024.
Over the last two terms, a new Supreme Court conservative super-majority weakened public health powers to address major threats like COVID-19, climate change, gun violence, and racial inequities in higher education. The court also decimated the right to abortion, and opened the door to discrimination against LGBTQ+ individuals.
This term, the court has a swath of hot-button cases pertaining to the right to bear arms, false and misleading health information, and the opioid crisis. We’re concerned the justices will solidify a long-term conservative project to dismantle the administrative state, potentially unraveling long-standing rules on access to health services, safe and effective medicines, food and nutrition, consumer protection, and climate change.
There was a time when the elected branches of government — the president and Congress — would shape health policy. Today, the justices are inserting themselves into the most socially controversial issues in our nation.
Gun violence is a scourge in America. This year, firearms have killed more than 40,000 people, including over 1,300 teens and nearly 300 children — on average, about 114 total deaths every day. For many years, the Supreme Court has had a light touch on the Second Amendment, ruling that it still allowed a host of commonsense gun laws. Not anymore. The court’s new conservative super-majority has made it nearly impossible to enact meaningful gun safety laws.
But the facts in United States v. Rahimi may be a bridge too far, even for this court. It will decide whether a decades-old federal law that bars firearm possession by people subject to domestic violence restraining orders violates the Second Amendment. The ultra-conservative 5th Circuit Court of Appeals struck down the law, using the purely historical test enunciated by the Supreme Court in 2022. The 5th Circuit found no sufficiently similar gun restriction, or “historical analogue” at the time the Second Amendment was adopted in 1791, when women were legally inferior and domestic violence wasn’t even seen as a problem.
Rahimi could force the justices to clarify its historical test. After all, the law in question has prevented the purchase of over 77,000 guns by people subject to domestic violence restraining orders over the past 25 years. A pure historical test could potentially invalidate pre-acquisition background checks, while reversing progress in protecting marginalized populations, such as women and racial, ethnic, and sexual minorities.
In two other cases this term, the Supreme Court is poised to clamp down even harder on firearm safety laws. In National Rifle Association of America v. Vullo, the court will decide whether a New York state official violated the First Amendment by encouraging companies to forgo doing business with the National Rifle Association following the 2018 Parkland, Florida school shooting that killed 17 students and staff. In Garland v. Cargill, the court will decide whether the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives can lawfully classify bump stocks as machine guns, which it began to do after a shooter used bump stocks to massacre more than 60 people and wound hundreds at a Las Vegas music festival in 2017.
The justices could defy all sense of reason in protecting the public from the horror of gunshot injuries, homicides, and suicides.
The Demise of the Administrative State
There is a longstanding conservative project to dismantle the administrative state — executive branch agencies that safeguard population health, safety, and the environment.
This term, the marquee case is Loper Bright Enterprises v. Raimondo, where commercial fishermen sued the National Marine Fisheries Service over a new rule requiring the industry to pay for at-sea monitoring programs. Both the district court and the D.C. Court of Appeals sided with the government, applying the standard set 40 years ago in Chevron v. Natural Resources Defense Council (1984), which allows agencies to reasonably interpret their statutory authority when the text of the law is ambiguous.
The Supreme Court is likely to overturn or severely limit Chevron, given its pattern of erosion of the administrative state, including negating the Occupational Safety and Health Administration’s COVID-19 vaccine-or-test requirement for large employers, invalidating the Environmental Protection Agency’s Clean Power Plan, and reducing the wetlands protected by the Clean Water Act. Eliminating Chevron deference would open the door to a flood of challenges against existing health and safety rules across government agencies.
Consider how its decision could impact two critical health cases. On December 13, the Supreme Court announced that it would hear Alliance for Hippocratic Medicine v. FDA, a case in which a group of anti-abortion advocates are challenging FDA’s 2000 approval of mifepristone (Mifeprex), a highly safe and effective drug used to terminate pregnancy. In another case that the court could soon take up, Braidwood Management Inc. v. Becerra, Christian-owned businesses challenged the Affordable Care Act’s coverage requirement for most preventive services, as recommended by expert medical and scientific bodies.
The court’s rush to substitute its judgment for that of career scientists — such as those at FDA and the U.S. Preventive Services Task Force in the cases above — could have devastating impacts on equitable access to key health services.
The First Amendment and Social Media
The Supreme Court will rule on two landmark cases on free speech protections for social media.
Moody v. NetChoice concerns a Florida law that requires social media companies to publish certain content (or face fines). The law was enacted to address perceived bias and censorship by liberal social media platforms against conservative voices. Lower courts struck down the law as unconstitutional compelled speech. It has long been a First Amendment principle that government cannot force private entities to support certain expression.
In Murthy v. Missouri, the court will review a 5th Circuit decision that prohibited the Biden administration from merely requesting social media platforms to remove content aimed at recruiting terrorists, produced by foreign adversaries, or spreading false information harmful to public health. If the Supreme Court upheld the 5th Circuit, it would hobble the federal government from even talking to media companies to limit harmful, hateful, and misleading health information.
Social media companies have enormous power to control public discourse, enabling individuals to communicate almost instantly to millions of viewers. And often false and misleading social media posts are from foreign adversaries and fueled by new technologies like artificial intelligence. The COVID-19 pandemic highlighted the dangers of this raw power, with misinformation and disinformation swirling on vaccines, medications, and masks. While the First Amendment protects against both censorship and compelled speech, it mustn’t be wielded to block the government from carrying out its basic responsibility to counter false, misleading, and harmful information.
The Opioid Crisis and Mass Tort Litigation
The CDC reported a staggering 109,649 drug overdose deaths in the 12-month period ending April 2023. Purdue Pharma has been at the center of that crisis. In Harrington v. Purdue Pharma, the court will decide whether Purdue Pharma’s bankruptcy agreement violates Chapter 11 of the Bankruptcy Code, given that it shields the Sacklers (the family that owns Purdue), from additional liability. Purdue filed for bankruptcy in 2019 after numerous state, local, and tribal governments, as well as individuals, sued the company for damages stemming from the sale of OxyContin, a Purdue pain medication that helped fuel the opioid crisis, despite Purdue’s claims of low addiction risk. Under a negotiated settlement, the Sackler family agreed to contribute $6 billion over a decade to fight the opioid crisis, and $750 million to compensate victims. In exchange, the agreement allowed the family to keep billions in revenue and released them from civil lawsuits. Even victims, states, and tribes that voted against the agreement would be barred from suing the Sacklers.
After a divided 2nd Circuit Panel reversed a lower court’s ruling to affirm the agreement, the Supreme Court decided to hear the case. At issue is accountability for advertising and selling drugs Purdue allegedly knew were deadly and addictive. The actions of a powerful family and company have destroyed hundreds of thousands of lives and shattered families.
The outcome of this case will impact numerous pending mass-tort cases, not only against Purdue and the Sacklers, but sexual abuse lawsuits against the Boy Scouts of America and the U.S. Conference of Catholic Bishops. At stake is the ability of victims of mass torts to go to court to seek relief in order to hold large companies and organizations to account.
Exceptions for the health and life of pregnant persons are once again the subject of intense political and judicial controversy. A Texas judge ruled that Kate Cox could have an abortion under her physician’s advice that her pregnancy threatened her life, since Cox’s fetus was diagnosed with a fatal genetic condition (trisomy 18). On December 8, the Texas Supreme Court blocked the judge’s order. In the Roe and Casey era, the pregnant person’s life and health were constitutionally protected. In our view, that protection should survive Dobbs.
The Supreme Court may decide one related case on its emergency (shadow) docket. Moyle v. United States concerns Idaho’s Defense of Life Act, which criminalizes abortion in all cases except to save the life (not the health) of the pregnant person. An Idaho district court blocked the Act’s enforcement on grounds that it was preempted by the federal Emergency Medical Treatment and Labor Act (EMTALA). Under EMTALA, hospitals that receive federal funding are required to screen and stabilize all emergency patients, with abortion at times constituting stabilizing care. Meanwhile, a federal judge in Texas blocked EMTALA from overriding the state’s near-total abortion ban; this decision has been appealed to the 5th Circuit.
Vague and narrow exemptions to criminal abortion laws put patients and providers in dire positions, with perilously ill patients told to wait in hospital parking lots until their death is imminent enough to qualify for the exemption. Abortion providers are also faced with legal, professional, and ethical dilemmas, forced to choose whether to comply with state law, or federal law and professional and ethical standards. EMTALA sets a national uniform standard that emergency care must be provided to all patients at risk. That ought to include pregnant patients experiencing health emergencies.
Further, as noted above, the Supreme Court will hear two consolidated cases concerning FDA’s 2000 approval of the abortion drug mifepristone. Abruptly terminating access to this drug, used in over half of pregnancy terminations in the U.S., would cut off a proven pathway for safe and effective abortion during early pregnancy. It would also undermine the FDA’s authority as the trusted agency for approving and regulating medicines, and throw a wrench into the regulatory process that pharmaceutical companies have come to rely on when investing billions in drug development.
From guns, opioids, health misinformation, abortion and regulatory powers, public health hangs in the balance this term at the Supreme Court. Six conservative justices have another outsized opportunity to reshape health for generations of Americans. With oral arguments well underway, 2024 will reveal just how far the justices will go.
Lawrence O. Gostin, JD, LLD, is distinguished 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 Global Health Security: A Blueprint for the Future. Sarah Wetter, JD, MPH, is a senior associate with the O’Neill Institute.
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Publish date : 2023-12-28 13:27:28
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