The 2023 US Supreme Court Term: Implications for Public Health

The US Supreme Court’s 2023 term will have important implications for public health, equity, and the power of communities to create healthier living conditions.¹ For the second year in a row, the Court has granted review in cases in which the results would previously have been considered obvious under settled law. The majority’s choice to take these cases up may signal that more precedent-refuting decisions are in the offing.

This year, the focus is on the rights of Medicaid beneficiaries, freedom of expression, equal protection, tribal sovereignty, and voting rights. The health consequences of the Court’s decisions this year may be less direct and less dramatic than those triggered by Dobbs v. Jackson Women’s Health Organization (ending federal constitutional protection for reproductive freedom)² and New York State Rifle and Pistol Association v Bruen (expanding the right to bear arms) in 2022.³ The questions the Court has taken up for 2023 are more technical, and the majority’s decisions may be more nuanced, making it harder to convey to the public how high the stakes are.

THE RIGHTS OF MEDICAID BENEFICIARIES

The case with the most direct relevance to public health invites the Court to block individuals from suing state officials to enforce requirements that attach to federal spending programs. In Health and Hospital Corporation of Marion County v Talevski,⁴ a patient’s family has sued nursing facility administrators for damages arising from violations of Medicaid quality-of-care standards. The nursing home administrators argue that Medicaid is like a contract between states and the federal government, reasoning that enrollees and providers must rely on federal officials to vindicate their interests. If the Talevski decision leaves enforcement entirely in the hands of federal officials with limited capacity, it will weaken protection for Medicaid beneficiaries and the safety-net providers who serve them, including provisions related to enrollment, benefits, and choice of providers. It may also have an impact on other federally funded, state-administered programs like the Children’s Health Insurance Program and the Supplemental Nutrition Assistance Program.

FREEDOM OF EXPRESSION AS A SHIELD FOR DISCRIMINATION

In 303 Creative v Elenis,⁵ the Court will consider the extent to which commercial activity constitutes constitutionally protected expression that trumps laws prohibiting discrimination by businesses that hold themselves out as offering services to the general public. A for-profit business that designs Web sites is asserting its right to discriminate against same-sex couples seeking assistance with wedding Web sites. The case has implications for efforts to protect lesbian, gay, bisexual, transgender, queer, or questioning people and other groups from discrimination, stigmatization, and associated health harms by limiting the reach of civil rights laws. More broadly, characterization of an expanded range of commercial activity as “expression” that triggers strict scrutiny of government intervention could have implications for efforts to regulate the commercial determinants of health. It could lay the groundwork for businesses to assert that the prices they charge, the products they sell, and the configurations in which they sell them are forms of expression protected from regulation.

EQUAL PROTECTION, DIVERSITY, AND ANTISUBORDINATION

The Court is also hearing cases on whether race-conscious college admissions (Students for Fair Admissions v Harvard College and Students for Fair Admissions v UNC⁶) and preferences for placing children who are eligible to be members of Indian Tribes with families who are also members (Brackeen v Haaland⁷) violate the Constitution’s guarantee of equal protection under law. The Supreme Court majority has indicated a preference for race-blind policies and could use the Equal Protection Clause as a basis for invalidating programs that draw distinctions based on race, ethnicity, or tribal membership for the purposes of providing benefits to historically subordinated groups and increasing diversity, equity, and inclusion. Ending race-conscious admissions could have dire consequences for efforts to create a more diverse health workforce, with resulting impacts on quality of care and on who is at the table in discussions about equity in public health. A decision treating “Indian” as a racial classification, rather than a political classification, would call into question programs that protect tribal members from violence and provide them with health benefits.

TRIBAL SOVEREIGNTY AND SELF-DETERMINATION

In addition to challenging the Indian Child Welfare Act on the grounds that it impermissibly discriminates on the basis of race, Brackeen v. Haaland raises the possibility that the Supreme Court could further erode tribal sovereignty. Tribal sovereignty and self-determination have important implications for public health, as indicated by recent clashes between tribes and state governors who sought to reverse COVID-19 mitigation measures and anticipated conflicts over reproductive health.⁸

ELECTION LAW AND THE FUTURE OF DEMOCRATIC GOVERNANCE

Moore v Harper⁹ is likely to be the most closely watched decision of the term because of its importance to the future of democratic governance. The petitioners are challenging a decision by the North Carolina Supreme Court rejecting a politically gerrymandered election map, which by itself might be unremarkable. Their reliance on the controversial “independent state legislature” theory raises the stakes. If the US Supreme Court were to accept the petitioners’ argument that state courts are prohibited by the federal Constitution from reviewing election rules adopted by state legislatures, the decision could pave the way for state legislatures to revamp elections in a host of ways that favor the political party in power. Democratic governance is vital to ensure communities are empowered to create the conditions required for people to be healthy. Giving state legislators carte blanche to set redistricting and election rules with virtually no checks and balances could disempower communities and exacerbate distrust of government as a mechanism for collective action to improve health.

WATCHING THE SHADOW DOCKET

In addition to the cases that are already on the docket, the Court is also likely to continue its trend of intervening more actively via the expedited and less transparent process of the so-called “shadow docket.”¹⁰ The Court could grant review in several additional cases with major public health implications. The lower federal courts are still grappling with the fallout from the Supreme Court’s blockbuster 2021 and 2022 terms. The environment is dynamic and highly partisan, and the Court could take up a question presented by ongoing litigation on a moment’s notice.

For example, several recent lower court decisions have invalidated longstanding gun-control regulations under the new “history and tradition” standard adopted in Bruen.¹¹ Complex abortion issues are emerging in the aftermath of Dobbs.¹² For example, lower courts are split over whether federal health law preempts criminalization of pregnancy termination when necessary to stabilize an emergency medical condition.¹³ Lower courts are also split over whether the Supreme Court’s new approach to religious liberty means that refusal of religious exemptions from government vaccination requirements triggers strict scrutiny.¹⁴ In addition, some lower court judges—perhaps emboldened by the Court’s willingness to abandon precedents it disagrees with on ideological grounds—are pushing fringe ideas into the mainstream, offering them up for the new majority’s consideration. For example, a case making its way up through the lower courts could unwind the Affordable Care Act’s requirement to cover preventive services with no out-of-pocket costs.¹⁵

ENVISIONING A MORE JUST FUTURE IN A TIME OF RADICAL RETRENCHMENT

The legal landscape public health interventions must navigate is changing rapidly. The analysis of the current majority of the Court may ultimately make it easier for a future majority to reverse recent decisions. The conservative legal movement has played a long game to achieve dramatic reversals of the precedents that stood in the way of their ideological goals. Dissenting justices and legal commentators play an important role by documenting the inaccuracies of the current majority’s analysis and laying the groundwork for more just approaches in the future.