Public Health Full-Court(s) Press

September 20, 2024 | Christina Severin

Like legislative enactments and executive actions, judicial decisions impact public health policy and practice. The Supreme Court of the United States (Supreme Court) recently decided several cases expected to impact public health and health policy more broadly and will hear several more in its upcoming term this fall. Meanwhile, lower federal courts continue to consider cases about significant public health programs (e.g., Title X family planning program, the Affordable Care Act) and are tasked with applying new Supreme Court precedents to future cases of public health concern. And state courts are still deciding COVID-19 related cases, with the potential to impact future executive actions to control diseases like avian influenza and mpox.

Supreme Court Cases

While the Supreme Court begins its new term the first Monday in October, several cases from the current term addressed topics of interest to state and territorial health officials and other public health professionals.

Social Media

For the first time, the Supreme Court considered the limitations on public officials using social media platforms (i.e., blocking comments and commenters). This opinion is expected to impact the social media landscape for public officials, including health officials, and should be reviewed by agency legal counsel. Government or “state actions” are generally subject to constitutional limits and protections, including those guaranteed by the first amendment. Here, the Supreme Court found that social media activity about an official’s job is “state action” and subject to constitutional considerations if the official has the authority to speak for the state and appears to utilize that authority on social media.

Administrative Law

The Supreme Court decided several administrative law cases in the 2023 term that are expected to impact federal agency rulemaking, litigation, and enforcement activity. None of these cases were about public health or health care regulation, but all federal agencies (including HHS, EPA, and FDA) could be impacted as lower courts apply these decisions going forward.

In two related cases, the Supreme Court considered whether to overrule a longstanding administrative law framework known as Chevron deference, where courts deferred to a federal agency’s interpretation of a statute when that interpretation is reasonable and the statute is ambiguous. The Court overruled Chevron, finding that federal law requires judges to independently determine what the words in a statute mean. In the months since this decision, lower courts have been asked to apply this new framework as they consider challenges to federal rules.

The Supreme Court also decided two cases that are expected to impact litigation about federal rules by allowing more time to bring a court challenge and limiting an agency's ability to impose penalties for certain types of agency actions. Together, these changes open up longstanding federal rules to challenge and may lead to additional litigation over agency administrative actions (e.g., the imposition of fines). Finally, the Supreme Court utilized its emergency docket to pause an EPA rule while litigation continues, finding that EPA erred while considering public comments during its rulemaking process.

Cases with Public Health Implications

The Supreme Court decided several other cases with the potential to impact public health priorities.

• Harrington v. Purdue Pharma L. P. Bankruptcy law does not allow the proposed Purdue Pharma opioid settlement, which included funding for state and local governments, to release the Sackler family from liability without the consent of those who could sue (i.e., the claimants).
• United States v. Rahimi. Upholds a federal law that prohibits firearm possession by individuals who have domestic violence restraining orders filed against them.
• City of Grants Pass v. Johnson. Local ordinances that impose civil and criminal penalties for individuals sleeping outside are not unconstitutional. Several jurisdictions have recently considered actions to limit camping or sleeping outside in certain areas, including Florida, Kentucky, Indiana, California, and Missouri.
• Becerra v. San Carlos Apache Tribe. The financial responsibilities of the Indian Health Service (IHS) to tribal governments that administer healthcare programs on its behalf require IHS to pay for certain costs borne by tribal governments when running these programs (i.e., costs from billing third parties like Medicare and Medicaid). IHS and HHS have acknowledged this decision and the federal budget implications.

Future Cases

In its upcoming term, the Supreme Court will decide whether a lower court’s decision to set aside FDA’s denial of marketing approval for new e-cigarette products was appropriate, as well as how to calculate Disproportionate Share Hospital (DSH) payments. They will also hear a challenge brought by San Francisco about whether the Clean Water Act allows EPA to issue permits that lack specific language or limitations regarding wastewater discharge. Finally, they declined to hear Oklahoma’s emergency appeal of a lower court decision that upholds HHS’s termination of the state’s Title X funding over its refusal to provide individuals with counseling for all pregnancy options.

Lower Federal Courts

The federal appeals courts have also decided important cases with impacts for health agencies and public health more broadly. First, in Braidwood Management v. Becerra, challengers to the Affordable Care Act’s (ACA’s) preventive services coverage requirements argued that the power of the United States Preventive Services Task Force (USPSTF), the Advisory Committee on Immunization Practices (ACIP), and the Health Resources and Services Administration (HRSA) to set those coverage requirements was unconstitutional. This case has a complex history and addresses more obscure provisions of the constitution (e.g., the appointments clause).

While the preventive services coverage requirements remain in place more broadly, the fifth circuit court of appeals found both that the role of the USPSTF was unconstitutional, and that the lower court should reconsider whether the ACIP and HRSA recommendation-based frameworks—the basis of coverage requirements for certain vaccines, cervical cancer screenings, and mammograms—pass constitutional muster. Notably, several states have recently considered legislation protecting preventive health coverage, including Oregon, which codified the ACA’s requirements effective January 1, 2024, as well as Pennsylvania, Michigan, and Washington.

The fifth circuit also decided a case about the interplay of Title X and state law regarding parental consent. In Deanda v Becerra, a parent challenged Title X’s confidentiality provisions, citing a Texas state law requiring parental consent for minors to obtain contraceptives and a parent’s constitutional right to make decisions about their children.

While this case and the Title X regulations themselves have a complex procedural history, the court did not decide whether Title X violated the father’s constitutional rights. The court found that Title X does not overrule Texas state law requiring parental consent, and that the lower court’s actions to set aside portions of the federal regulation regarding confidentiality were improper.

State Court Actions

Nearly five years after the first COVID-19 case, courts are still hearing challenges to state actions taken during the pandemic. The North Carolina Supreme Court allowed a lawsuit claiming selective enforcement of COVID-19 orders and violation of the state’s constitutional right to earn a living to proceed to trial. The Michigan Supreme Court declined to hear cases arising out of COVID-19 related health orders, leaving lower court decisions in place that dismissed the claims of certain business owners and college students. And finally, the Minnesota Supreme Court upheld the Governor’s right under state law to declare a peacetime emergency due to a pandemic.

ASTHO will continue to monitor the public health legal landscape and provide relevant updates to its members.