Over the past few years, the hard-right majority on the Supreme Court has begun to emerge as a mounting threat to public health. As I wrote last June, the court’s recent decisions on abortion and gun rights imperiled American lives. Everyone can clearly see how far the court is from the “balls and strikes” fantasy articulated by Chief Justice John Roberts; with apologies to Von Clausewitz, the law in these cases was just politics by other means.
But we now have plain evidence that the Supreme Court isn’t the only branch of the judiciary endangering public health. GOP-appointed judges in lower courts are pursuing similarly radical agendas, and using their perches as political bulldozers.
First came the ruling in late March striking down the Affordable Care Act’s provision of preventive health services at no cost, from mammograms to colonoscopies to HIV pre-exposure prophylaxis (PreP) and more—all because Judge Reed O’Connor of the US District Court for the Northern District of Texas has it out for the ACA and supports the notion that preventing HIV infections promotes homosexuality.
A few weeks later, Judge Matthew J. Kacsmaryk of the same court struck down a decades-old approval by the Food and Drug Administration of the drug mifepristone, which is used to terminate pregnancies. It was the first time a court has commanded the FDA to take a drug off the market, putting into question the stability of the agency’s statutory authority over the regulation of drugs in the United States.
This is jurisprudence as suicide pact. Should O’Connor’s ruling stand, preventive care for millions will be in jeopardy, with dire consequences for health and life expectancy. My colleagues from Yale and Harvard and I recently estimated that restrictions on access to HIV pre-exposure prophylaxis—drugs to prevent HIV infection—could result in more than 2,000 additional HIV cases in a year’s time. Now, add new cases of breast cancer, colon cancer, and other preventable diseases, and you see the radical nature of O’Connor’s ruling—which he says is based on the supposed illegitimacy of the appointment of the members of the US Preventive Services Task Force (and, in the case of PrEP, an infringement on religious liberty). O’Connor is a burn-it-all-down kinda guy. If bringing down the ACA requires the sickness or death of hundreds of thousands of Americans, that’s a price he’s happy to pay.
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Matthew J. Kacsmaryk is another piece of work. Last year, he struck down the ACA’s protections for LGBTQ people and gutted protections for trans workers under Title VII. Now, he’s decided to put one of the FDA’s core functions—approving drugs—in jeopardy because he doesn’t like abortion. It would be nice to think that one judge couldn’t undermine the entire drug approval system of this country just because he’s a religious fanatic and really feels like it, but Kacsmaryk proves that one judge absolutely can try to do just that, evidence be damned.
When The New York Times, often so careful to avoid offending conservatives, is pointing out the anti-abortion rhetoric in your ruling, where you eschew the scientific terms for a penchant for militant pro-life language, you’re clearly far out on the fringes of your profession. When 400 drug company executives come out swinging with a denunciation of your ruling, well, you’ve got an even bigger problem: You’ve got an industry that has profited from the push to weaken the FDA now championing its core functions and making a case for regulatory rigor and independence. That’s the thing about fanatics—they never know when to stop.
It seems inconceivable that anyone would consider the implications of these judgments, which could involve endangering the health and well-being of millions of Americans, as acceptable collateral damage for political victories, but this is where we are in America in 2023. As Stanford’s Michelle Mello and Northeastern’s Wendy Parmet have written, we’re watching the unraveling of long-settled debates in law about public health, or as they put it more formally: “Traditionally, courts have granted substantial deference to scientific experts and government officials about measures needed to protect health. That deference appears to be waning, in numerous doctrinal areas.”
If Covid accelerated this downhill slide in the courts’ deference to public health, scientific evidence, and fact, these recent rulings are a reminder that GOP-appointed judges have been at this for a while when it comes to health care and reproductive health.
After more than a million deaths in the United States from Covid, sliding life expectancy in this country, and a crisis in infant and maternal health (so much for being pro-life), the courts’ role in trying to make things decidedly worse needs a whole lot more scrutiny. No one is really going to defend the law and the courts’ neutrality in traditional terms, but we’ve got to put a lot more emphasis on judicial accountability—as my Yale Law School colleague Amy Kapczynski writes:
Our Constitution has changed many times without amendment, in part because judges are themselves shaped by the world around them and responsive to the Court’s need for legitimacy: It must be not just a Constitution, but our Constitution, for it to be worthy of respect.
We the people can also rightly seek to hold judges accountable for the reasons that they give. If courts stand by while media institutions are attacked, or refuse to recognize that the gendered nature of social reproduction makes abortion an issue that fundamentally implicates our equal citizenship, then they deserve our criticism—not because they are not being “neutral” but because they are not being just, and not offering up a vision of democracy that we can live with.
O’Connor, Kacsmaryk and their compatriots on the bench are not “offering up a vision of democracy that we can live with.” The world they are fashioning from law is a world that threatens our very health, our very lives—and we simply cannot live with what they have to offer. They deserve not just our criticism but also our contempt, our anger, and our refusal to let them win.
