Fifteen Eighty Four

More than three years after the start of the COVID-19 pandemic, the United States is an unhealthy country. During the pandemic, the United States lost more people per capita to COVID-19 than any other high-income country and life expectancy, which was lower in the United States before the pandemic than in any other wealth country, hasn’t rebounded as it has elsewhere. The United States also has the highest maternal and neo-natal fatality rates of any high-income country and faces growing epidemics of overdose deaths and firearm-related fatalities. All these grim statistics hide alarming racial, ethnic, and economic disparities.

How did the United States become so unhealthy? In Constitutional Contagion, The Courts, COVID, and Public Health, I point to one seldom-recognized suspect: the courts. The book argues that courts, especially the Supreme Court, have played an underappreciated role in setting the conditions for the myriad health problems that plague Americans.

It did not have to be this way. As the book shows, neither the Constitution nor long-established legal precedents compel or even support the judicial decisions that have undermined health and exacerbated health inequities. Indeed, for most of American history, judges embraced the ancient legal maxim salus populi suprema lex (the health or well-being of the people is the highest law) and gave far greater weight to the impact of their rulings on public health than courts do today. The move away from salus populi preceded the COVID-19 pandemic but accelerated during it as the Supreme Court abandoned any deference to health officials and acted seemingly without regard for the impact of its decisions on public health.

The turning point came, and the book begins, in November 2020, shortly after Justice Amy Coney Barrett replaced Ruth Bader Ginsburg on the Supreme Court. On Thanksgiving Eve, in Roman Catholic Diocese v. Cuomo, the Court enjoined a New York order that restricted gatherings in places of religious worship in COVID “hot zones.” What was remarkable about the decision was less its conclusion than the conservative majority’s approach, which replaced deference to public health authorities with deep skepticism toward or even disregard of public health evidence.

In the months that followed Roman Catholic Diocese v. Cuomo, the Supreme Court issued several other decisions striking public health measures. State restrictions on gatherings in private homes, CDC’s eviction moratorium, and OSHA’s order requiring large employers to mandate either vaccination or masking and testing all fell in the face of judicial decisions limiting the government’s capacity to protect the public’s health.

These unnerving COVID cases, however, do not represent the only judicial threat to health. After surveying the earlier tradition of salus populi and the Court’s response to COVID-19, the book widens its lens to consider how courts, starting in the second half of the twentieth century, helped to shape the social, commercial, and political determinants of health in ways that left Americans unhealthy before the pandemic and especially vulnerable to it. During the New Deal, the Supreme Court replaced the old police power jurisprudence, in which salus populi was embedded, with an approach that gave far greater deference to the decisions of the elected branches. Initially, this new approach supported governments’ capacity to tackle health problems. But by the latter part of the century, the Court had abandoned it too in favor of an approach that treated rights to religious liberty, commercial speech, and gun ownership as powerful trumps on health and safety laws. As the book shows, the Court’s adoption of an increasingly individualistic jurisprudence limited governments’ ability to regulate the marketing of dangerous products, such as cigarettes and junk food, which cause many of health conditions that left so many Americans at high risk to COVID-19. The Court’s embrace of hyper-individualism also granted constitutional legitimacy to a type of crude libertarianism that forgets that our health depends to a large degree on the social conditions we inhabit. Thus, as the pandemic progressed, many Americans saw efforts to quell it, via social distancing measures, vaccination, or mask mandates, as violating their constitutional rights to freedom and liberty. Readers of the Supreme Court’s recent public health decisions could be forgiven for reaching such a conclusion.

Yet, as the book shows, the Courts’ support for freedom is incomplete. First, it disregards the “real liberty,” that Justice John Harlan highlighted more than a century ago in upholding a vaccine mandate. This is the positive liberty that recognizes that our health and well-being do not lie solely in our own hands; freedom sometimes requires that governments act to keep us from harm. Rejecting positive liberty, the modern Supreme Court has been insistent that the government need not take any steps to provide health care, housing, education, or any of the services that secure the conditions necessary for health. Nor, the Court tells us, must the government clean the air or fight deadly infectious diseases. Instead, the government must protect an individual’s (or a corporation’s) liberty to own and carry guns or market deadly products. In short, the Court has created, the book argues, an asymmetry of rights in which the liberty to be healthy is devalued in favor of the liberty to threaten the health of others.

Second, the Court’s one-sided approach to freedom has impeded efforts to address health disparities. Indeed, the Court’s growing disdain for race-based laws, which is widely expected to lead to a decision halting affirmative action in higher education in June 2023, has made it increasingly difficult for governments to reduce health inequities. Instead, by devaluing the importance of health-related evidence and rejecting the right to an abortion, which can be critical to women’s economic security and health, the Court has remained content to impose rulings that will exacerbate those inequities.

Perhaps most important, the Court has weakened democracy. As the book shows, electoral accountability can be an important positive determinant of health. Although health is not the only value that drives votes, it is an important one. In a well-functioning democracy, in which governments are responsive to public concerns, governments try to safeguard health. But due to a series of judicial decisions relating to racial and partisan gerrymandering, campaign finance laws, and voting rights, the courts have weakened democracy, facilitating increasing partisan polarization and a type of political entrenchment in which elected leaders have little reason to consider the health and well-being of many populations. This, too, threatens Americans’ health, as we observe from the rush of many states to limit access to abortion despite the public’s support for widely available abortion care.

Today, as the worst of the COVID-19 seems behind us, public health protection is endangered. Legislatures throughout the country are introducing and enacting bills designed to limit health officials’ ability to act in future outbreaks or against quotidian risks. Lower courts are rendering decisions that disable governments’ ability to regulate access to firearms, mandate vaccines, or protect the quality of our air or products. Basic public health functions that Americans have taken for granted for centuries are under assault.

No doubt, as the book discusses, health officials made many mistakes during the COVID-19 pandemic. Some errors were due to the incomplete nature of the evidence during the early days of the pandemic, some arose from political pressures, and sometimes people just make mistakes. Reflection and revision by all branches of government, including the courts, are sorely needed. But a jurisprudence that disdains science and handcuffs government’s capacity to protect public health or redress inequities is apt to make the United States an even unhealthier nation. This jurisprudence, as the book shows, is compelled neither by the Constitution’s text nor by our constitutional traditions. It is radical and deadly. The good news is that because judges created it, they can revise it. Constitutional Contagion calls for them to do so before the next public health crisis.