In recent years, scholars and advocates have noted a worrying trend: The judiciary has become increasingly hostile toward state actions that aim to improve the public’s health. For example, as Michelle Mello, David Jiang, and Wendy Parmet have recently documented, the U.S. Supreme Court and many lower federal courts have constrained the scope of the state’s public health powers by, among other things, expanding religious freedom protections and narrowing agency decision-making power through public law doctrines like the Major Questions Doctrine. Yet this widely observed development is only part of a larger, more pernicious story. The reality is that many courts, including the Supreme Court itself, have proven deeply sympathetic to public health authority — when states deploy that authority against specific suspect groups, including through criminalization.
This post represents a first effort to outline the contours of this emerging carceral public health jurisprudence. Under this body of law, the government’s public health authority appears strong when it criminalizes and weak when it makes health a publicly shared responsibility. We also offer some observations about how to realign public health jurisprudence with the pursuit of equality; observations that we hope are useful in rethinking public health law more generally.
Deference to Carceral Public Health Authority
Many courts have recently upheld city and state laws that hide behind a veneer of public health promotion but, in practice, criminalize and harm groups that are least able to defend themselves against coercive state power. Critically, the health inequalities already experienced by these groups — which include unhoused people, people seeking abortion care, and transgender youth pursuing gender-affirming treatment — will only deepen if these laws continue to be enforced.
Consider, for instance, City of Grants Pass v. Johnson. In Grants Pass, the Court ruled that generally applicable laws prohibiting sleeping or camping on state-owned property do not violate the Eighth Amendment. In reaching this conclusion, the Court accepted the public health argument that homelessness in general, and encampments in particular, are vectors of crime, disease, and pathology. In the Court’s view, disrupting people’s ability to sleep outdoors, even through the threat and imposition of month-long jail sentences, is a perfectly reasonable response to address these issues. Holding that bans on camping or sleeping are unconstitutional, the Court emphasized, would “interfere[] with ‘essential considerations of federalism,’ taking from the people and their elected leaders difficult questions traditionally ‘thought to be the[ir] province.’”
That very same logic appears in Dobbs v. Jackson Women’s Health Organization. In Dobbs, the Court eliminated the right to abortion that had previously been protected under Roe v. Wade and Planned Parenthood v. Casey. In the Court’s view, criminalizing abortion is presumptively authorized as long as it reflects “legitimate state interests” in protecting “maternal health and safety,” eliminating “particularly barbaric medical procedures,” and preserving “the integrity of the medical profession.” Such justifications echo the views of anti-abortion activists — including amici to the Court — who have held that abortion, particularly starting in the second term, poses serious health risks to women, including “depression, substance abuse and suicide.” As of this writing, twenty-two states have passed laws banning or restricting abortion, “the harshest of which authorizes a term of life imprisonment for abortion offenders.”
This logic may also very well play out in litigation surrounding the criminalization of gender-affirming treatment for youths. Both the U.S. Court of Appeals for the Sixth Circuit and members of the Supreme Court’s conservative wing have indicated that laws criminalizing the provision of hormones, puberty blockers, and gender affirming surgery to minors are within the state’s public health authority to protect children’s health and well-being. During oral arguments before the Court, Tennessee argued that “[p]olitically accountable lawmakers, not judges, are in the best position to assess this evolving medical issue,” and that “states in their traditional role as regulators have [] had to intervene . . . to protect [] children.” The fact that state justifications for such laws “include false or no evidence” only underscores how legislatures can manipulate information to disempower specific, marginalized groups.
The End of Traditional Public Health Powers
Meanwhile, the judiciary has become far more critical when governments assert their traditional, non-carceral public health powers. This development may seem to contradict the logic of the cases above. But it is, in fact, entirely consistent with a public health law jurisprudence that favors carceral state interventions over those that prioritize shared health responsibility.
Historically, courts have deferred to the expertise of government agencies, such as public health departments, and allowed for the temporary restriction of specific individual liberties, especially during public health emergencies. The canonical Supreme Court case, routinely taught in health law and public health law classes, is Jacobson v. Massachusetts, which upheld the vaccination mandate of Cambridge, Massachusetts, during a smallpox outbreak. Yet amid efforts to address the COVID-19 public health emergency, courts drastically altered this standard of deference by curtailing executive rulemaking power and expanding religious freedom protections.
For example, the Court struck down the CDC’s moratorium on evictions and OSHA’s vaccine-or-test mandate — both of which were enacted to prevent the spread of disease throughout the community by narrowly targeting the spaces where people live and work — on the grounds that the agencies exceeded their authority. Tellingly, the majority in the OSHA case framed these emergency measures meant to quell the spread of a novel highly transmissible virus as “no everyday exercise of federal power” and one that significantly “encroach[ed] into the lives — and health — of a vast number” of Americans. Moreover, state legal efforts to impose occupancy limits on religious services during COVID-19 were also heavily scrutinized by federal courts, albeit under religious freedom claims. As Mello, Jiang, and Parmet emphasize, litigants asserting religious objection claims were afforded “a type of mandated exemption from otherwise broadly applicable health rules” that did not exist before COVID-19.
Remedying the Asymmetry
We recognize that all of these cases involve their own distinctive legal issues, and that specific interpretive frameworks may justify this seemingly anomalous treatment of public health authority. The religious freedom cases are indeed tricky, given that the ideal public health framework both imposes strong collective obligations and accommodates minority groups who cannot comply. Yet, fundamentally, a public health jurisprudence that favors criminalization over shared health responsibilities is not a public health jurisprudence at all. We need a body of law that ensures that all people can be healthy and flourish, especially those who have long been the subject of state violence.
Where to go from here? The answer is far from obvious, but at minimum, the task moving forward is to identify ways to remedy the asymmetry described so far — a task that is at once practical and conceptual. Practically, we can learn from recent legal victories. For example, amid a swell of state-level abortion bans and antiabortion lobbying, seven states have enacted state constitutional amendments via ballot measure that protect abortion rights, including in largely conservative states like Arizona, Missouri, and Montana. Furthermore, despite the existence of punitive War-on-Drugs-era laws, cities and states have successfully implemented laws and initiatives establishing overdose prevention centers to address the health needs of their residents amid the urgent overdose crisis. These examples illustrate how some of the most important public health battles right now are being fought at the city and state level, rather than in Washington, D.C.
Conceptually, lawyers in general and public health lawyers in particular, must become participants in currently raging debates about the future of U.S. public law. Should we rely on courts to protect the public’s health? What theories of interpretation are best suited for that task? How can the development of public health law best adapt to rapidly changing federal lawmaking structures? The public’s health substantially depends on answers to these questions.
Finally, we must confront the disturbing historical parallels between today’s carceral public health jurisprudence and injustices committed in the name of public health improvement. Nearly a century ago, in Buck v. Bell, the Supreme Court applauded a Virginia law allowing “mental defectives” to be involuntarily sterilized. Echoing the ableist, eugenicist tropes of the day, Justice Oliver Wendell Holmes famously proclaimed that “[t]hree generations of imbeciles are enough.” “It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind,” the opinion concluded.
Although the Court’s language is repugnant by today’s standards, its ethos — sanctioning the use of police powers to erase and marginalize for purportedly public health reasons — resonates across today’s carceral public health jurisprudence. Yet, as Buck has taught us, such uses of government authority do nothing to improve health. It only harms, stigmatizes, and distracts us from working towards the solutions that will advance health equality for all.
