The Supreme Court Is Harming Public Health and the Environment

Public trust in science is vital not only for an informed populous but also to enhance compliance with public health guidance. Yet, §230 of the Communications Decency Act protects social media companies against lawsuits regarding users’ posts even if they are false, misleading, or extremist.

The Supreme Court will decide whether §230 should shield giant technology companies from accountability. The Supreme Court is also considering whether to hear challenges to laws in Texas and Florida barring online platforms from removing certain political content. The outcome of these cases could upend the internet with vast significance for regulation of online media content.¹

The air we breathe and the water we drink have profound effects on health. Last term, the Supreme Court invalidated the Clean Power Plan, which would have required power plants to install energy-efficient devices and demonstrate progress toward sustainable energy. The justices relied on the “major questions” doctrine, which holds that Congress must explicitly authorize agency actions with major social or economic effects.

Because most federal regulations have wide social and economic effects, the Supreme Court’s reasoning could prove fatal to many health, safety, and environmental regulations. Laws grant agencies broad discretion because Congress cannot anticipate every health threat, thus relying on agencies to confront new challenges. Federal agencies like the Environmental Protection Agency have far more subject matter expertise than Congress or the courts.

This term, the Supreme Court could further weaken the Environmental Protection Agency by narrowing the definition of “waters of the United States” under the Clean Water Act.² The Supreme Court is widely expected to supplant the agency’s expertise with the court’s own judgement. The narrowed definition would exclude wetlands and the oil, gas, mining, and agricultural industries would be able to discharge pollutants into wetlands without even needing a permit. This would threaten natural habitats as well as waters for recreation, fishing, and drinking. Just as climate change has become a defining issue, the Supreme Court is curtailing regulatory action to ensure a cleaner environment.

A conservative majority has drastically expanded the reach of the Second Amendment, limiting government action to prevent gun violence. Last term, the Supreme Court invalidated a New York law that, since 1911, has required a person to show proper cause for a license to carry a handgun outside the home. Lower courts have used this precedent to invalidate other long-standing, common sense gun laws.

On February 2, 2023, the Fifth Circuit Court of Appeals ruled unconstitutional a federal law banning gun possession by people subject to domestic violence restraining orders.³ Guns, now the leading cause of death in children and adolescents aged 1 to 19 years, have already taken more than 4000 lives in the US in 2023, with mass shootings occurring every day.⁴

Last term marked the first time in history the Supreme Court withdrew a constitutional right, finding that a right to abortion was not “deeply rooted in our Nation’s history.” At least 13 states have fully banned abortion and 5 states have partial bans on abortion while proposed abortion bans remain blocked in 8 states. These restrictions have caused a patient’s average travel time to an abortion facility to more than triple.⁵

Abortion bans have the most significant effect on individuals who lack the resources and support to travel longer distances as well as minors, racial and ethnic minority individuals, non-English speakers, and migrants. The ruling spurred crucial legal questions, including whether emergency medical care must include abortion services.⁶ Litigation is also ongoing over approval of abortion medications by the Food and Drug Administration.

Last term, the Supreme Court ruled that a city-funded Catholic social services agency could deny same-sex couples the opportunity to foster children in defiance of Philadelphia’s antidiscrimination law. The unanimous decision centered on a technicality in the law. More alarming was a concurring opinion by Justices Alito, Gorsuch, and Thomas that argued for overturning the 1990 ruling in Employment Division v Smith,⁷ which established that generally applicable laws do not require religious exemptions. The justices’ advocacy for religious rights could undermine vaccination mandates, while also legitimizing discrimination against the LGBTQ+ community.

This term, the Supreme Court will decide whether businesses open to the public can refuse to serve LGBTQ+ individuals. If the Supreme Court places commercial expression above LGBTQ+ rights, it could relegate LGBTQ+ individuals to a disfavored class, further narrowing access to goods and services. LGBTQ+ people already face higher rates of violence and discrimination, putting them at risk for physical and mental harms.

This term, the Supreme Court will decide whether Medicaid recipients can challenge state denials of federally guaranteed benefits. A federal law known as §1983 has long granted individuals denied benefits access to the courts.⁸ Decades of precedent support a judicial pathway to enforce rights under federally funded programs (eg, Medicaid, the Supplemental Nutrition Assistance Program, and Temporary Assistance for Needy Families). Yet the Supreme Court may find these programs are simply contracts between states and the federal government, with no enforceable rights. Low-income individuals would have federally protected rights, but no remedy when states deny benefits for which they are eligible. Medicaid and the Children’s Health Insurance Program are among the few safety nets for low-income individuals, and are used by 90 million individuals in the US. Especially as states wind down COVID-19 protections, Medicaid enrollees need an outlet to safeguard benefits wrongfully denied.

This year, the Supreme Court is poised to rule on cases that go to the heart of equity in US society. In 2 consolidated cases, the Supreme Court is expected to invalidate affirmative action designed to increase diversity and opportunity in higher education.⁹ Yet as Justice Ketanji Brown Jackson stated, education is a major social determinant of health. American Indian, Black, Hispanic, and Pacific Islander populations remain vastly underrepresented in higher education. These groups experience less economic opportunity, less representation in the health care workforce, and fill fewer leadership positions.

Forbidding racial- and ethnic-based decisions could also derail public health programs designed to reduce health inequities by prioritizing underserved populations. The Supreme Court could also overturn the Indian Child Welfare Act (ICWA) that prioritizes placement with tribal families when American Indian children are removed from their homes. The ICWA was enacted in 1978 in response to a history of forcibly removing American Indian children from their families to send them to boarding schools as a form of cultural genocide.¹⁰ Medical organizations argue that the ICWA promotes stability, helping children overcome trauma.

The Supreme Court’s 6 conservative justices are bringing vast changes to the public health legal landscape. The Supreme Court is impairing the government’s ability to act in the public interest and undermining safeguards for groups that have been historically marginalized. Yet far from affecting only a subset of US individuals, the justices are weakening public health, with health and equity on the line.