How Did Public Health Become a Public Enemy at the Supreme Court?

In this Instagram Live clip, MedPage Today editor-in-chief Jeremy Faust, MD, and Lawrence Gostin, JD, director of the O’Neill Institute at Georgetown University in Washington, discuss how the Supreme Court has limited the powers of public health and what that could mean for the next pandemic.

The following is a transcript of their remarks:

Faust: Let’s start with COVID, and we’ll keep it on the shorter side and then we’ll get into the other stuff, because I spend a lot of my time worrying about next time and what we’re going to do, and I think the legal landscape has changed. If there were another pandemic tomorrow and we wanted to do things like social distancing and a vaccine came and we wanted to mandate that, where would we stand on that legally?

Gostin: We would be far worse off than we were before the COVID-19 pandemic, I can tell you that for sure.

I mean, first of all, you’ve had an absolute slew of state statutes in multiple states that have limited public health powers — particularly limited public health emergency powers and powers over mandating vaccines and masks and social distancing and things like that.

And so what worries me about these laws is, we should be careful what we wish for because the next pandemic will come. It won’t be the same as COVID. It might be more lethal, it might even be more transmissible. We’re going to turn to our public health agencies to protect us, and they’ll have their hands tied behind their back.

But it’s not just the state statutes and the politicization of it, it’s also the politicization of the courts. There are cases that pop up on my desk, Jeremy, literally every day of a district judge or sometimes a federal court of appeals judge limiting state power around vaccination, usually under the First Amendment free exercise of religion clause, which has expanded vastly under the [Chief Justice John] Roberts court.

It used to be that freedom of religion didn’t apply to public health measures because we had what was called the neutrality doctrine. That is, public health when it has a vaccine mandate or something like that doesn’t target religion. It’s neutral. It basically affects everyone. And so the courts for nearly a hundred years said no, public health is sacrosanct. Jacobson v. Massachusetts, the seminal case, was about smallpox vaccination. But all of that is at risk.

And at the same time, the Supreme Court during the pandemic itself struck down a law in New York and in California that required social distancing and it required social distancing of a whole range of activities — in fact, every large gathering. But it was found unconstitutional by the Supreme Court in those two cases, because it applies to church. Even though churches were, I know you remember, super-spreader events very early on in the pandemic.

What makes these cases really troubling and political is that before Amy Coney Barrett was appointed to the court to give a super majority of 6-3 for the conservatives, the court had upheld laws about social distancing. [With] just one appointment to the court, it flipped to 5-4. So it just shows you how political this is.

And as you know, COVID is the paradigm of the politicization of public health.

Faust: Let me ask you about these ideas of striking down social distancing laws.

I was actually having a conversation — it was a private conversation, but I can talk about it — with the former FDA Commissioner Scott Gottlieb, MD, and he was saying that a lot of these social distancing requirements, not always, but a lot of them merely replicated fire codes. Meaning that if you were actually going by this 6-foot thing — which may or may not have been entirely evidence-based but it was the best people could think of — the people were up in arms about this, but it actually was just the same number as the fire code in some places.

So why the upset? By the same token, why can a fire code persist, but social distancing in a respiratory virus environment can’t pass through the court?

Gostin: Well, I could kind of think of a machination where a fire code would affect a church or a synagogue or a mosque and it might have the same fate, but I think the answer clearly is the justices are part of society. Society is thoroughly politicized, COVID and public health in general, and science itself.

So it seems to me that really what’s happening is that the justices are buying into these, what I regard as anti-science, anti-public health tenors in the United States. And that can’t be good because as we know, science, public health, medicine, they’re not Democrat, they’re not Republican, they don’t discriminate.

And really, public health did get a lot wrong. It was a fast-moving pandemic. But on the other hand, who would you trust more to make a decision or a recommendation about your safety, the CDC or a state public health agency, or Supreme Court justice? I think just to ask the question is to answer it.

Faust: I want to talk about that political separation. And one way to think about this is, I started thinking about this when I was reading my friend Steve Vladeck’s book The Shadow Docket.

Gostin: He’s at Georgetown now.

Faust: Yeah, I know you got him.

It’s this idea that the polarity of the law really changes what you can do. The idea of an injunction versus a stay. And so if we have a pandemic, and I’m in a state like Massachusetts and someone else is in a state somewhere much less friendly to public health measures, there might be a law that says there can’t be a mask mandate or there must be.

Can you explain to the viewers how things might play out based on where you are next time? Based on the laws that are being put into place today?

Gostin: Yeah. Well, I think we might just see a repeat in the sense that there’s been some evidence that, at least for part of the pandemic, red states fared less well. Because people didn’t mostly get vaccinated and maybe other measures like that. We’re likely to see that again. Most of the things I’ve been talking about are state issues. So Massachusetts can have a strong public health policy and say Mississippi or Alabama or Texas or Florida might have a different role.

We’re facing a national problem as well as a state variation problem. Because in the cases that I talked about in terms of social distancing by the Supreme Court, and I would also add the OSHA [Occupational Health and Safety Administration] case where the court struck down an OSHA requirement that large employers either mandate masks or mandate vaccines, the court struck that down. And in the religious freedom cases that I’m talking about.

Right now, Massachusetts has a fairly robust limitation to religious exemptions, and New York and California have no religious exemptions. They don’t allow them. The Supreme Court, I can foresee in the next few years, will strike that down. And if some of our viewers don’t think that that’s alarming or unusual, just think of the fact that religious exemptions have been in place and allowed by the judiciary in the United States for a hundred years. So this would be striking down a hundred year precedent.

If you think that the Supreme Court acted cavalierly in overturning a 50 year precedent with Roe v. Wade, what constitutional lawyers are noticing is that this court really has very little regard for precedent, which means they have very little respect for the justices who decided these decisions throughout the years, and they think they know better than those other justices.

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