In just seven days last June, the U.S. Supreme Court set back public health by 50 years. The court’s conservative majority rolled back efforts to address the pressing threat of climate change, expanded access to deadly firearms, and eliminated the right to abortion by overturning Roe v. Wade. Earlier, it had eviscerated public health powers to curb the Covid-19 pandemic.
We fear this is just the start.
In its new term, which begins today, the first Monday in October, the same justices could do even more to undermine public health, along with its highest value: reducing the cavernous health inequalities that became so evident throughout the Covid-19 pandemic.
The most troubling cases on the docket do not explicitly deal with the U.S. public health system, yet each could have a significant impact both on health outcomes and on urgent efforts to create the conditions in which everyone — no matter their race, sex, or socioeconomic status — can thrive.
The cases that worry us most range from those on voting and LGBTQ+ rights to environmental health and race-based actions needed to advance equity.
In Moore v. Harper, the Supreme Court could strip state courts of the authority to review the legality of state voting rules. Such a ruling would enable partisan legislators to create even more highly gerrymandered districts and enact restrictive voting laws with impunity. That, in turn, would disenfranchise millions of Americans, especially those in minoritized communities. A second case on the docket, Merrill v. Milligan, which will be heard on Oct. 4, could make it far easier for states to draw district lines that deny proportionate representation for minority groups, further gutting the Voting Rights Act. Limited access to voting has been linked to adverse health outcomes in spheres ranging from health insurance coverage to cancer deaths. The American Medical Association cited those correlations earlier this year when identifying voting rights as a key determinant of health.
The court’s super-conservative majority is also likely to unwind protections for LGBTQ+ Americans, among society’s most vulnerable communities. In 303 Creative LLC v. Elenis, the court will review a Colorado law that bars businesses open to the public from discriminating against LGBTQ+ individuals. Any rollback of protections will yield serious harms, as discrimination has been linked to poorer mental and physical health outcomes. It’s an especially fraught time for this case, given that governors in Texas, Florida, and elsewhere have sought to marginalize and investigate families with LGBTQ+ children, who already face higher risks of bullying, violence, and suicide.
The health of the environment is inextricably tied to the health of populations and, as has been seen in communities from Flint, Mich. to Jackson, Miss., low-income neighborhoods and communities of color are most often left behind. In Sackett v. Environmental Protection Agency, the court could eviscerate protections under the Clean Water Act, just as it did last term with the Clean Air Act. Climate justice is based squarely on the mountains of evidence that poorer people, especially in certain racial or ethnic groups, tend to live in environments deeply hazardous to their health due to decades of discriminatory lending and zoning practices. If the justices exclude key watersheds from Clean Water Act protections, there could be further degradation of both waterways and public health, again with disproportionate effects on already vulnerable communities.
We are also deeply concerned by two cases that will determine whether universities — including Harvard University, where one of us (M.W.) works — can consider race as one of many factors in admission reviews. In a country where structural racism continues to drive enormous racial, wealth, and health gaps, access to education is essential for marginalized communities. Indeed, many studies have found a strong link between education and decreased risks of serious illness or early death.
We also worry about a ripple effect here: If the Supreme Court rules that race cannot be considered in college admissions, the justices could well apply the same reasoning to decisions in the public health sphere. Throughout the Covid-19 pandemic, federal and state health agencies often allocated scarce medical resources such as vaccines and therapeutics based — in part — on race. That was a rational response to evidence showing that SARS-CoV-2, the virus that causes Covid-19, disproportionately harmed communities of color. But such measures could soon be deemed unconstitutional, which would impede public health efforts to ensure equity in access to lifesaving vaccines and drugs, as well as to reduce stubborn health inequalities.
In short, the cases on the docket this fall put the legal determinants of health front and center in the Supreme Court’s chambers.
It might be tempting to take comfort in the idea that these cases affect just certain groups, or just certain states. That would be a dangerously wrong approach.
In fact, the effects on public health would ripple through all aspects of the nation, from national security and the economy to education and longevity. Even before the pandemic, poor health cost the U.S. economy about $3.2 trillion a year from lost productivity and premature deaths. That’s in large part because the country’s young and working-age populations have a significantly higher disease burden than their peers in other wealthy nations.
Think of what that means for the economy: A diminished labor force, yes, and — given the high price of medical care — fewer customers with disposable income for goods and services. But what really hurts is the lost potential of so many bright minds and energetic people who might be able to devote more time and effort to inventing, creating, and problem solving if they did not have the burden of poor health.
There is strong evidence available to guide the justices away from such damaging rulings but, as a recent article in the journal Nature explained, the court has grown increasingly dismissive of science and expert opinion, and seems oblivious to the real-world harms its rulings cause everyday Americans.
As the new term begins, the six conservative justices may be poised to unravel a long-standing social contract that safeguards privacy and dignity, remedies unconscionable inequities, and empowers federal agencies to protect the health, safety, and environment for all Americans.
The best response to judicial activism is political and civic activism. We the people people must elect leaders at every level of government committed to advancing equity and protecting health and safety. Americans must also work to surface and share the very real stories of those harmed by Supreme Court rulings. These stories may not change the majority opinion on the court, but they can alter the political landscape by empowering lawmakers who will act to protect the vulnerable and preserve the common good.
There is power in bearing witness.
Michelle A. Williams is dean of the faculty of the Harvard T.H. Chan School of Public Health. Lawrence O. Gostin is a university professor of law at Georgetown University and director of the O’Neill Institute for National and Global Health Law and a World Health Organization Collaborating Center.