As public health practice invariably entails governmental interventions raising constitutional issues, the impact of the Supreme Court of the United States (SCOTUS) on the field is always considerable.Reference Hodge ¹ Yet, the Court’s role in adjudicating public health laws and policies may have reached its zenith during its 2021-2022 term. Amidst the COVID-19 pandemic, a politically-polarized society, and shifting legal paradigms, SCOTUS undertook a sensational array of cases. Vaccination mandates, reproductive rights, climate change, drug reimbursements, opioid abuses, gun regulations, LGBTQIA+ discrimination, mental health claims, and child welfare substantially occupied the Court’s docket. Fundamental freedoms are apt for constitutional reconsideration in the backdrop of extensive battles over conservative and liberal approaches.Reference Hubler and Cowan ² As a new majority on the Court re-envisions constitutional law for the 21st century, health impacts may be extensive. These key themes are examined below in 10 select areas of SCOTUS cases this term, both decided and forthcoming, whose outcomes may substantially affect public health laws and policies for decades.

Federal Vaccine Mandates and Pandemic Responses. The Biden administration’s aggressive pandemic response plan featured a series of vaccine mandates announced in September 2021 ³ that were systematically challenged nationwide. In January 2022, SCOTUS held that the Occupational Safety and Health Administration lacked authority to promulgate a rule requiring large employers to ensure the vaccination status of millions of workers. ⁴ Simultaneously, it sustained the Centers for Medicare and Medicaid Services’ COVID-19 mandate for health care workers, finding sufficient legal authority for the agency to condition vaccinations on federal funding. ⁵ Ongoing challenges to federal employee and contractor vaccination mandates ⁶ may still reach the highest Court. Its existing rulings on executive-ordered requirements, however, showcase the scope (and limits) of federal agency authorities in the backdrop of the most sensational public health threat in U.S. history.

State Vaccine Mandates and Religious Interests. Unlike federal authorities, states’ police powers to mandate vaccinations are well-established under SCOTUS jurisprudence. ⁷ Less certain is whether First Amendment free exercise interests or other constitutional rights require religious exemptions to such mandates. Forty-four states currently allow religious exemptions to school vaccination or other requirements. ⁸ Since 2015, California and New York eliminated previously-recognized religious exemptions to boost vaccination rates amid measles outbreaks arising in their jurisdictions.Reference Garnier ⁹ SCOTUS expressly declined to hear challenges to New York’s vaccine law on May 23, 2022. ¹⁰ During the COVID-19 pandemic, multiple state-based suits challenged COVID-19 vaccine mandates that omitted religious exemptions. ¹¹ SCOTUS repeatedly refused to intervene ¹² despite some Justices’ apparent eagerness to review several cases via its shadow docket. ¹³ In March 2022, the Court allowed the U.S. Navy to enforce its COVID-19 vaccine requirement against enlisted personnel without offering a religious exemption. ¹⁴ Whether SCOTUS’ limited decision in this case reflects its stance on religious exemptions to vaccination mandates overall is indeterminate.

As a new majority on the Court re-envisions constitutional law for the 21st century, health impacts may be extensive. These key themes are examined below in 10 select areas of SCOTUS cases this term, both decided and forthcoming, whose outcomes may substantially affect public health laws and policies for decades.

Reproductive Rights. On June 24, 2022, as predicted from an unprecedented leak of a draft majority opinion in May, the Supreme Court revoked the nearly fifty-year constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization. ¹⁵ Absent federal guarantees, state-based legal encroachments on rights to abortion access may significantly curtail or eliminate reproductive freedoms. Even prior to the Court’s decision in Dobbs, it avoided striking down a novel Texas law introduced in 2021 ¹⁶ (and replicated elsewhereReference Durkee ¹⁷ ) allowing private persons to sue to enforce the state’s six-week abortion ban. ¹⁸ In Dobbs, ¹⁹ the Court considered a fifteen-week abortion ban in Mississippi implicating access to pre-viability abortion. Absent further litigation, trigger laws in 22 states may prohibit or severely limit abortions immediately.Reference Miller and Sanger-Katz ²⁰ Extensive public health and social repercussions will follow, including projected increases in pregnancy-related, preventable deaths.Reference Stevenson ²¹ Worse still is the precedent Dobbs sets for the Court’s retraction of other fundamental, non-textual rights ahead including rights to contraception, marriage equality, and intimacy despite the Court’s assurances its opinion was limited to abortion access.

Environmental Impacts and Agency Authority. The federal Clean Air Act (CAA) of 1970 provides a primary legal foundation to combat climate change and pollution, in part through rules promulgated by the Environmental Protection Agency (EPA). ²² In its first twenty years, CAA prevented an estimated 200,000 deaths and 18 million cases of respiratory illnesses in children. ²³ On February 28, 2022, the Court heard oral arguments in West Virginia v. EPA, addressing whether CAA precludes certain measures promulgated by EPA requiring power plants to reduce their emissions. ²⁴ Challengers posit that nondelegation principles and “major questions” doctrine severely limit EPA’s authority. They purport that Congress must explicitly authorize agency actions on substantial issues of economic and political policy contrary to existing assessments via Chevron deference. ²⁵ On June 30, the Court agreed, holding that Congress did not explicitly grant EPA the regulatory power to devise emission caps. A “decision of such magnitude and consequences,” noted Chief Justice Roberts, “rests with Congress itself” or agency action based on “clear delegation.” ²⁶ The public health repercussions of the Court’s decision are profound. Limiting EPA’s regulatory authorities could inhibit the Biden administration’s plans to reduce power plant emissions up to 50% by 2030 to avoid catastrophic climate change effects ²⁷ and substantial increases in cases of asthma, lung cancer, and other respiratory illnesses. ²⁸ Moreover, the Court’s invocation of the “major questions doctrine” limits other executive agencies’ capacities to generate equitable, evidence-based regulations absent express congressional authorization.

Medicare Regulatory Authority. In another case focused on federal agency regulatory authorities, SCOTUS considered the statutory basis ²⁹ for U.S. Department of Health and Human Services’ (HHS) rules to reduce reimbursements for outpatient prescription drugs to hospitals eligible for Medicare’s 340B discounts. ³⁰ Proponents assert that HHS’ rule eliminates unfair benefits to hospitals purchasing heavily discounted drugs to receive larger reimbursements. ³¹ Opposing health care providers maintain that HHS’ rate cut hurts hospitals caring for underserved populations and disadvantaged patients. ³² In an unanimous Opinion released June 15, 2022 the Court held that HHS cannot alter reimbursement rates without complying with statutory requirements. ³³ Finding the agency exceeded its statutory authority in diminishing reimbursements allows many rural hospitals to retain over-payments on certain prescription drugs that help offset other expenses in treating indigent patients. The Court declined to address underlying principles of judicial deference to agencies’ statutory interpretation, finding that the text of the federal statute was “straightforward.” In June, as well, the Court deferred to HHS interpretation of a federal statute in determining disproportionate share hospital payments, potentially harming facilities serving low-income patients. ³⁴

Physician Opioid Prescriptions. On March 1, 2022, the Court heard arguments in two consolidated cases considering physician prosecutions under the Controlled Substances Act (CSA) for excessive prescription of opioids. ³⁵ Defendants allegedly issued over 300,000 prescriptions in 4 years, sometimes in exchange for cash or property (including firearms). Federal courts differ on whether physicians’ conformance to professional prescription standards should be assessed objectively (based on reasonable beliefs) or subjectively (based on sincere, good faith beliefs).Reference Pierson ³⁶ The Department of Justice (DOJ) argued an objective standard is ethically sound and inhibits doctors from operating “pill mills” responsible for the distribution of millions of doses nationally throughout the opioid epidemic.Reference Hoffman ³⁷ Opponents raise concerns over the potential for greater prosecutions that chill medical innovations, deter off-label prescribing, and preclude opioid access for some patients with chronic pain.Reference Gluck ³⁸ Collateral public health effects may ensue, including increased illicit opioid use, emergency room visits, overdoses, and suicides. In a unanimous Opinion issued on June 27, the Court held CSA prosecutions for excessive opioid prescribing must demonstrate beyond a reasonable doubt that prescribers knew they lacked a legitimate medical purpose (the subjective standard). ³⁹ Application of this heightened standard may protect physicians and promote innovations, but also hinders DOJ efforts to prosecute over-prescribing doctors.

Gun Rights. Under New York law, state officials have discretion to grant individual licenses to carry concealed handguns: only applicants who show “proper cause” may be approved. ⁴⁰ In November 2021, SCOTUS considered whether New York’s framework for granting concealed-carry handgun licenses violates Second Amendment self-defense guarantees. ⁴¹ Opposed groups in N.Y. State Rifle & Pistol Association v. Bruen argued that their rights to self-protection were inhibited and New York’s law was enforced discriminatorily against racial and ethnic minorities.Reference Erskine ⁴² State officials asserted strong public health objectives underlie the licensure requirement. ⁴³ More permissive concealed carry laws are associated with higher rates of firearm and handgun-related homicides.Reference Siegel ⁴⁴ On June 23, 2022, in a 6-3 Opinion, the Court held New York’s licensing regime violated the Second and Fourteenth Amendments by limiting applicants from accessing and carrying handguns for mere self-defense. ⁴⁵ Extending Second Amendment rights to include general self-defense outside the home threatens a multitude of public health regulations aimed at reducing firearm-related morbidity and mortality as Congress ponders federal legislative limits after multiple acts of gun violence in Buffalo, Uvalde (TX), and other locales in 2022.

LGBTQIA+ and Antidiscrimination Protections. In February 2022, SCOTUS agreed to consider whether a state law prohibiting businesses from preemptively denying public services based on a customer’s identity violates the First Amendment Free Speech Clause.Reference Howe ⁴⁶ A website designer challenged a Colorado law barring her from announcing that she would not create same-sex wedding websites. ⁴⁷ SCOTUS’ 2018 precedent maintains that businesses cannot use religious and philosophical objections to avoid enforcement of neutral, generally-applicable public accommodations laws that prohibit denials of equal access to services. ⁴⁸ Yet, lower courts disagree whether the government can use such laws to affect private business’ commercial speech. ⁴⁹ At balance are business owners’ First Amendment rights and the interests of LGBTQIA+ consumers to avoid mistreatment contributing to their disproportionate rates of depression, suicide, and substance use. ⁵⁰ SCOTUS’ forthcoming decision may limit state and local authority to protect these vulnerable groups against unwarranted discrimination.

Mental Health Claims. Amid a circuit split SCOTUS considered whether Title VI of the Civil Rights Act of 1964 (and other federal laws) allow for emotional distress damages in disability discrimination claims. ⁵¹ A deaf and legally blind woman sued a rehabilitation facility in Texas after it refused to provide an interpreter, preventing treatment and causing emotional harms. Lower courts summarily dismissed her case. Permitting recovery in discrimination cases asserting purely “dignitary harms” like anguish and humiliation raises manifold issues. ⁵² Justice Barrett and others voiced concerns at oral argument about the unpredictability and size of such damages.Reference Bayefsky ⁵³ Employers and others fearing unreasonable exposure to liability suggest that state tort laws already provide remedies for emotional distress stemming from discrimination.Reference Bayefsky ⁵⁴ On April 28, 2022, in a 6-3 ruling, the Court denied the woman recovery because the anti-discrimination statutes are silent on the issue and businesses could not anticipate liability. ⁵⁵ As a result, many persons experiencing discrimination with similar harms may be left without further recourse absent applicable state or other laws.

Native American Adoptions. On February 28, 2022, SCOTUS agreed to hear four consolidated cases in its 2022-23 term to decide in part whether the Indian Child Welfare Act of 1978 (ICWA) violates equal protection principles. ⁵⁶ ICWA was Congress’ response to historic and extensive displacement of Indian children over decades. ⁵⁷ In support of Tribal identities, Congress assigned preference via ICWA to Indian adopters when placing Indian children. Non-Indian persons raised equal protection claims, suggesting their interests in adopting Indian children were subjugated to others on racial classifications. To the extent the Act is premised on existing jurisprudence categorizing Indians as a political rather than racial group, it may survive scrutiny.Reference Stancombe ⁵⁸ Yet, ICWA supporters fear a contrary decision projected later this year may negatively impact Indian health equity and outcomes.Reference Gallegos and Fort ⁵⁹