On November 9, 2022, Lawrence O. Gostin, JD, LLD, shared his perspective on the Supreme Court's 2022 term. As part of Ƶ's review of the past year's top events, Gostin follows up with an analysis of the deeply consequential cases on the Supreme Court's docket for its 2023 term.
On October 3, a new Supreme Court term began with Ketanji Brown Jackson, the first Black woman joining the bench in the Court's 232-year history. Yet, even with this long overdue voice, the Court retains a 6-3 conservative supermajority. My last column in The Health Docket showed how the Court has weakened public health powers to combat the defining threats of our lifetimes -- COVID-19, climate change, and gun violence -- while unraveling deeply personal rights to abortion and LGBTQ+ freedoms.
This term, the Court will go to the heart of health equity, impacting what I call the . Again on the docket are LGBTQ+ rights and environmental health, along with affirmative action, Medicaid, and the well-being of American Indian children and families. The rulings by an ideologically-driven Court are sadly predictable. By the time the current term ends, six unelected justices will have remade American society on the most politically divisive issues of our time. What follows are my analyses and predictions for several health-related cases on the docket.
Environmental Health
The new term kicked off with oral arguments in , a case that could drastically reduce wetlands and other waters protected by the Clean Water Act (CWA). The Sacketts, Idaho landowners backed by polluting industries, want to narrow the definition of "waters of the United States" -- waters for which a permit is required before development or discharge of pollutants.
The EPA is undergoing a rulemaking process to update the definition of "waters of the United States" based on scientific knowledge of complex hydrologic systems. Yet, it's likely that six justices will supplant their definition for that of experienced career scientists. Congress legislated the CWA precisely to protect the integrity of our nation's precious waterways. Yet, as with last term's , we can expect the Court's majority to align with conservative talking points that favor stripping federal agencies of their regulatory power. At stake is not only natural beauty and a healthy ecosystem, but also federal powers to safeguard the nation's health, safety, and the environment.
LGBTQ+ Rights
In , the Court will decide whether laws that forbid public businesses from discriminating against LGBTQ+ people violate the First Amendment. Should a wedding website designer be permitted to refuse services for same-sex couples and include a statement on the business' website informing prospective customers they won't be served? This invidious discrimination violates Colorado's anti-discrimination law (as well as basic decency), but the web designer claims the law violates her First Amendment rights.
The Tenth Circuit the Colorado law, finding the state had a compelling interest in ensuring "equal access to publicly available goods and services." If the Court rules that LGBTQ+ people cannot be served, how is that any different from saying it's alright to discriminate based on race, religion, or disability? The Court is poised to relegate same-sex couples to a disfavored group with narrower access to goods and services. Business owners have the right to their personal opinions, and they are free to express them however noxious. But they shouldn't have the right to open their businesses only to those they favor.
Imagine if a healthcare provider could refuse to treat LGBTQ+ patients, or a landlord could refuse housing. Yet, the Supreme Court may very well overturn state laws safeguarding against discrimination. Last term, a city-funded Catholic social services agency to turn away same-sex couples applying to foster children. The future is one where marginalized communities are not protected against noxious discrimination.
Affirmative Action in Higher Education -- and Well Beyond
In and the Court is poised to prohibit affirmative action designed to advance opportunity and racial diversity. Under longstanding precedent, academic institutions use race among many factors in admissions decisions. Yet, the Court may proscribe any consideration of race, finding it discriminates against white and Asian-American applicants.
As Justice Jackson noted during oral arguments, forbidding universities from valuing race and diversity has "the potential of causing more of an equal protection problem than it's actually solving." Consider 5% of physicians identify as Black or African American, and only 5.8% identify as Hispanic, despite constituting , respectively, of the American population. Underrepresentation of racial minorities in medical education and practice contributes to inferior healthcare, patient distrust, and poorer health outcomes. Affirmative action not only mitigates inequities, but also creates educational opportunities that enhance employment, income, and health status, while yielding societal benefits like increased civic participation, leadership, and economic development.
Over the last 3 years, Black Americans have died from COVID-19 at nearly of their white counterparts -- and the disparities are even greater with American Indians. The Court's likely ruling could increase inequity even further.
The Well-Being of American Indian Children
could impact American Indians, another historically marginalized population. Trump-appointed partisan Judge Reed O'Connor said he would overturn vast portions of the Indian Child Welfare Act (ICWA). ICWA states that if a child is a member of an Indian tribe or eligible for tribal membership and is removed from their home, he or she should be placed within a tribal family whenever possible.
The law was enacted in response to a history of forcibly removing Native American children from their families and traditions to send them to boarding schools as a form of cultural genocide. A white couple seeking to adopt a native child, and the state of Texas, claim that ICWA discriminates on the basis of race. Yet, under federal law, Indian tribes are not a racial group but a political classification; this unique status allows tribes to enter treaties with the U.S. that encompass rights to land and water, health and education benefits, criminal jurisdiction, and economic development.
Overturning ICWA would threaten the well-being of Indian children and families. The law promotes a healthy through connection to heritage and extended family, a critically stabilizing factor as children emerge into adulthood. Major national medical organizations submitted amicus briefs describing how ICWA helps redress the physical and psychological trauma when a child is removed from his or her home. The result is uncertain, as even highly conservative Justice Neil Gorsuch tribal sovereignty.
Medicaid and Civil Rights
In , the Court will determine whether people relying on federally-funded public benefit programs for healthcare, food, or other assistance can seek relief in court when their benefits are unlawfully denied. George Talevski's family claims his rights were violated under the Nursing Home Reform Act (NHRA) (part of Medicaid since 1987) when he was improperly drugged and discharged from a state-run nursing facility. The Court will determine whether an 1871 federal statute -- -- allows Medicaid recipients to sue state officials to protect their rights. The decision could further extend to beneficiaries of any federally-funded state-run program, like the Supplemental Nutrition Assistance Program (SNAP) or Temporary Assistance for Needy Families (TANF) – programs that covered even before their COVID-19 expansions.
With , courts have allowed individuals to sue state actors under Section 1983 when their benefits, as guaranteed by federal law, are wrongfully denied or terminated. Foreclosing Section 1983 actions for Medicaid would be a serious affront to health equity and equal justice under the law. It would deny lower-income persons, among which racial and ethnic minorities are vastly overrepresented, the same opportunity to secure their rights in court that is afforded to persons with private health insurance.
I believe in an American society that values clean air and waterways, stands up against hate and discrimination, backs opportunities to ameliorate racial disparities, respects tribal sovereignty, and protects the interests of the most vulnerable. Yet, with oral arguments well underway, this Supreme Court is geared to unravel decades-old safeguards for these cherished American ideals. The opinions of six justices could amplify inequity and injustice, while tarnishing the very fabric of our society as a whole.
is university professor, Georgetown University's highest academic rank, where he directs the O'Neill Institute for National & Global Health Law. He is also director of the World Health Organization Collaborating Center on National & Global Health Law, and the author of . You can read more of his writings in "The Health Docket" column.