Judicial Trends in the Era of COVID-19: Public Health in Peril

A pandemic can test and reshape health systems like no other event. The same can be said for the profound impacts of pandemics on public health law and governance. January 2023 marks the third anniversary of COVID-19. As the pandemic wrought devastation on health and the economy, public health officials exercised unprecedented powers, ranging from orders to mask, test, and vaccinate to social distancing, school and business closures, and stay-at-home orders. These powers unleashed an avalanche of legal challenges to curb emergency health powers and agencies’ ability to safeguard the public’s health and safety.

In this issue of AJPH, Parmet and Khalik (p. 280) provide a majestic analysis of judicial litigation during the COVID-19 pandemic, demonstrating the judiciary’s outsized role. Their article shines a light into a modern judicial era where judges substitute their judgment for that of career scientists. Parmet and Khalik also offer important insights on how to shape policies to withstand aggressive judicial scrutiny.

Donald Trump appointed one third of the US Supreme Court (now with a 6–3 conservative supermajority) and 30% of all federal appellate judges.¹ Many are hewing to the political ideologies of their appointing president, often closely tracking far-right policies. Litigators “forum shop” to get their cases in front of judges sympathetic to their cause. Consider how a single federal judge in Florida, a Trump appointee rated “unqualified” by the American Bar Association, was able to nationally block the Centers for Disease Control and Prevention’s (CDC’s) transit mask mandate in April 2022.²

Parmet and Khalik analyzed over 1000 federal and state judicial decisions opining on the lawfulness of public health powers during the COVID-19 pandemic. Although over three fourths of those decisions upheld pandemic orders, courts often gave precedence to personal and religious freedoms over public health powers. In high-profile cases, the Supreme Court has dangerously narrowed the scope of administrative agencies’ rule-making powers—and that trend is only likely to accelerate in the court’s 2023 term.

RIGHTS-BASED CHALLENGES TO PUBLIC HEALTH MEASURES

In the landmark 1905 ruling Jacobson v Massachusetts, Justice Harlan famously stated, “The liberty secured by the Constitution to every person does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”³ Throughout the COVID-19 pandemic, courts largely upheld state and municipal measures to protect the common good.

However, as Parmet and Khalik’s research revealed, legal challenges to COVID-19 containment measures were most often successful when grounded in religious freedoms. Conservative courts are viewing religious freedom as a near-absolute right—a dangerous trend that could weaken public health.⁴ Consider how the Supreme Court repeatedly rejected religious challenges to restrictions on gatherings with a narrow five to four majority. When Amy Coney Barrett replaced Ruth Bader Ginsburg in October 2020, the court abruptly reversed itself, all but ignoring its recent precedents. The court struck down gathering restrictions in New York⁵ and California,⁶ designed to mitigate COVID-19 mass spreading events—ignoring a history of mass spreading events at religious congregations.

This could just be the beginning of courts jeopardizing public health powers in the name of religious freedom. In a concurring opinion last term, Justice Alito urged overturning Employment Division v Smith, which ruled that individuals cannot disobey general health and safety rules for religious reasons.⁷ Overturning this precedent would open the door to vast discrimination in the name of religion, contributing to physical and psychological health harms and widening health inequities. Further, as Parmet and Khalik point out, the Supreme Court’s stance on religion could undermine state vaccine mandates that fail to provide broad religious exemptions. Vaccine-preventable childhood diseases like measles often occur in geographic areas with high rates of unvaccinated individuals, principally in religious communities.⁸

REGULATORY AUTHORITY OF EXECUTIVE AGENCIES

Administrative agencies provide a web of protection for health, safety, and the environment. Agencies are staffed with career professionals who can evaluate evolving scientific standards, while acting far more rapidly and flexibly than a legislature. Legislatures have thus delegated wide rule-making powers to agencies to curtail threats to health and the environment. Since Franklin Delano Roosevelt, courts have granted considerable deference to executive discretion. Ignoring long-standing precedent, the Supreme Court, as well as lower courts, have begun to rein in executive action, arguing that legislatures had not explicitly authorized the action. Parmet and Khalik identify a dangerous trend: courts were most likely to weigh in and overturn executive action in “purple states”—that is, those with a Democratic governor and a Republican-majority legislature. This finding makes it ever clearer that courts are putting partisan politics ahead of public health.

The Supreme Court has similarly narrowed the scope of what federal agencies can do, such as by blocking the CDC’s housing eviction moratorium using the “major questions” doctrine, which provides that any administrative measure of broad economic or political significance must be backed by explicit statutory authority. Until recently, this doctrine never captured a majority of justices; today, it is a conservative highway for striking down agency actions. In a concurrence to National Federation of Independent Business v Department of Labor (in which the Supreme Court invalidated an Occupational Safety and Health Administration [OSHA] emergency measure requiring COVID-19 vaccination or weekly testing for large employers),⁹ three justices (Gorsuch, Alito, and Thomas) advocated for the major questions doctrine. In West Virginia v Environmental Protection Agency (EPA), Justice Robert’s majority opinion, joined by the five other conservative justices, relied on the major questions doctrine to hold the EPA’s emissions rules for protecting against harmful pollutants unconstitutional.¹⁰ Next term, the court will weigh in on the Clean Water Act, with a sadly all-too-predictable outcome of further narrowing health and safety powers.

When the next major health emergency strikes, we may begin to fully understand the ramifications of weakening agencies’ authority to meet health and environmental challenges while protecting the most vulnerable.

NAVIGATING THE RESTORATION OF PUBLIC HEALTH AUTHORITY

Given these judicial trends, how can we secure the future of public health law and policy? Creating a more balanced, less partisan federal court system would require key reforms. Yet judicial reforms will require significant time and political will, so policymakers need to be able to operate effectively in the environment that we find ourselves in.

Grounding public health measures in science is especially important, as sound scientific evidence could help shield against legal challenges. Scientific assessments, of course, are challenging during health emergencies when the evidence is uncertain and evolving. (Think back to the early days of the COVID-19 pandemic on issues like masking and aerosolized spread.) Scientists and lawmakers alike must be clear on what they know and what they don’t know, and communicate transparently to gain public trust. As Parmet and Khalik observe, it may be more difficult for a judge to overturn a law or regulation that the public views favorably.

Lawmakers must also be cognizant of the possible impact of public health measures on the exercise of religion that could lead to legal and constitutional challenges. Religious groups must not become the enemy of public health; instead, policymakers should engage smartly with religious and community leaders, whom the public often holds in high regard. Finding common ground and engaging with diverse religious and political constituencies could potentially reduce opposition to public health measures.

When it comes to safeguarding the public against immediate and serious threats to public health, Parmet and Khalik speak compellingly. Public health officials “should not be dissuaded from issuing critical orders or regulations because of overblown fears of litigation.” To do so would be an abdication of the responsibility to act for the common good. Rather, when acting at the height of their powers, public health officials must anticipate litigation and be prepared to answer foreseeable challenges.

The COVID-19 pandemic seemed to unravel so many communal bonds of shared and mutual responsibilities to take care of one another. This splintering of the social fabric manifested in the political branches of government as well as in the judiciary. To avoid a future disaster of the magnitude of COVID-19 (or even worse), we have to find ways to come together, support science, and grant public health officials scope to act for the public welfare.