Legal Overreach: The Murky Boundaries of Public Health Litigation
The COVID-19 pandemic placed a spotlight on public health authorities as they scrambled to respond to a sudden global crisis. While the outbreak was situated well within the traditional realm of public health, its lasting impact and disproportionate burden on marginalized communities shed more light on the breadth of issues that the field had evolved to address. This progression to the “new public health” can be best illustrated by the Center for Disease Control and Prevention’s (CDC) decision in 2020 to replace research with equity as the core of the 10 Essential Public Health Services—a framework that had not been revised since 1994.
Rooting public health in equity entails promoting community conditions that advance equal access to public health, as well as removing systemic and structural barriers that lead to health inequities. Accomplishing this goal is contingent on addressing the social determinants of health, which include economic stability, access to quality education and health care, environment, and social and community context. This considerable breadth of socioeconomic variables has prompted uncertainty about the legitimate scope of public health and, by extension, public health law. With numerous cases rooted in public health interests being brought to the Supreme Court, it is crucial to understand critiques of this expanded scope and evolving shifts in the judiciary’s interpretation of public health authority.
Public health law wields a powerful influence on social norms by structuring the conduct of individuals, businesses, and government actors. This influence provides a hefty toolkit for enforcing public health interventions like mandates, licensing, taxation, disclosure requirements, and others. In particular, litigation has been increasingly utilized as a driving force to hold private actors accountable for the poor health outcomes that they may impose on consumers. In United States v. Philip Morris USA INC (2009), numerous cigarette manufacturers were held liable for a decades-long conspiracy to deceive the American public about the health effects and addictiveness of smoking cigarettes.
These interventions, however, are met with considerable resistance from critics of the new public health law, which embraces the expansive definition of public health rooted in equity. A major critique of this broader scope is that the new public health extends regulation into inappropriate places, coined the “public healthification” of social problems (Lawrence & Lindsay, 2018). Under this view, situating public health within all societal factors that affect health, including anything from war to eating habits, leads to a plethora of practical issues that only narrow the interventions’ success. Issues range from the impracticality of training public health professionals on the various root causes of poor health to exponentially larger monetary costs of addressing this wide scope (Lawrence & Lindsay, 2018). Moreover, this broad scope arguably fuels the controversy of balancing individual rights with public health interests by adding weight to the latter.
Balancing individual rights with public health interests is highly contentious and has taken various forms at the Supreme Court, such as within interpretations of the due process clause. Procedural due process balances the government’s interest in the procedural approach and the individual’s rights to notice, hearing, and appeal. Do emergency conditions override liberty interests and procedural safeguards, though? Despite numerous cases brought regarding this matter, the conflicting decisions about vaccination mandates in Biden v. Missouri (2022) and NFIB v. OSHA (2022) demonstrate the ongoing murkiness surrounding this public health authority. Inconsistency is also seen within the interpretation of substantive due process, which concerns “fundamental rights” like the right to privacy established in Roe v. Wade (1973) to protect abortion rights. In Dobbs v. Jackson (2022), the current Supreme Court called into question the right to privacy and ultimately overturned the Roe v. Wade precedent, greatly jeopardizing reproductive rights. Some justices are going beyond the right to privacy and are challenging the entire substantive due process doctrine. By following the plain meaning of the Constitution’s words, a process known as textualism, justices are questioning the legitimacy of fundamental rights, as they were never explicitly listed but rather interpreted from “life, liberty, and property” in the Fourteenth Amendment. If other unenumerated fundamental rights, like the right to marry, were challenged in future cases, there could be disastrous implications on their previous SCOTUS precedents.
Another barrier to public health regulations is the prevalence of originalist constitutional interpretation in the current Supreme Court. Originalism aims to follow the original intent of the framers or original public meaning at the time the Constitution was written. Writing for the 6-3 majority in New York State Rifle and Pistol Association v. Bruen (2022), which concerned the constitutionality of New York’s concealed carry law, Justice Clarence Thomas struck down the law while citing historical anecdotes dating back to the 1200s that lacked a tradition of broadly prohibiting carrying guns in public for self-defense. Consequently, historical tradition and constitutional analysis appear to be prioritized over the possible consequences of the court’s decision, which could render empirical public health data about negative health outcomes irrelevant in any future decisions.
A final SCOTUS trend that has limited public health authority is the growing use of the nondelegation doctrine. The doctrine states that Congress cannot delegate its legislative authority to administrative agencies or other entities and, if it does, it must articulate the boundaries of the delegated authority to the relevant entity. While courts have traditionally deferred to agencies’ reasonable interpretation of the laws that the agencies are charged with implementing, courts are increasingly adopting an anti-regulatory approach that limits this deference to the executive branch. This approach employs the “major questions doctrine,” which, in broad terms, states that the Supreme Court will not defer to agency interpretations in “extraordinary cases” or on issues of “vast economic and political significance.” The major questions doctrine was recently applied in West Virginia v. EPA (2022), which held that Congress did not intend for the EPA to be able to regulate greenhouse gasses under the Clean Air Act and asserted that the EPA was seeking “unprecedented power over industry” by trying to do so. The use of this doctrine places considerable restrictions on public health regulations, as delegating powers to administrative agencies, like the EPA or FDA, plays a vital role in achieving federal health care objectives.
Given the current state of the Supreme Court and its deference towards traditional constitutional interpretation, the role of judicial intervention as a great equalizer between powerful minority lobbyists and the health of the general public has been incredibly diminished. The current Court’s interpretation has superseded the general rule of law, creating uncertainty surrounding the future of public health law and delegitimizing the Court’s decisions. Litigation is incredibly important for public knowledge as it sheds light on public health problems, generates funding to address these issues, and forces unruly actors to be held accountable for their actions. Consequently, the overarching concern for public health policymakers should be how to most effectively situate their objectives to avoid challenges to regulatory action and infringements on individual rights. Fortunately, the growth of public health law is creating more space for these objectives to be heard and understood on a larger, nationwide scale. This broader reach could and should prompt innovative legal strategies that more effectively advance new interpretations of legal doctrines at both lower and higher levels of the judicial system.
Ashley Ganesh is a sophomore at Brown University concentrating in Business Economics and International and Public Affairs. She is a staff writer for the Brown University Undergraduate Law Review and can be contacted at ashley_ganesh@brown.edu.