‘Rights Will Hang in a New Balance’.
On the night of October 26, Amy Coney Barrett became the newest US Supreme Court Justice, and the first in the nation’s history to be confirmed just days before a federal election. She will fill the vacancy created by the death on September 18 of Justice Ruth Bader Ginsburg, a progressive who championed reproductive, LGBTQ, and women’s rights.
Barrett, with her lifetime appointment, now secures a 6-3 conservative majority on the Court. Advocates for everything from reproductive freedom to LGBTQ rights and from racial justice to voting rights have sounded the alarm on what this means for the country.
Nicole Huberfeld and Wendy Mariner, professors at the School of Public Health’s Center for Health Law, Ethics & Human Rights and at the School of Law, share these concerns, and discussed them the morning after Barrett was sworn in.
How do you see Amy Coney Barrett’s unprecedented appointment changing the US Supreme Court?
Mariner: The installation of Amy Coney Barrett on the United States Supreme Court furthers a long-standing goal of those seeking to cement partisan minority rule in our institutions of government. It is deeply troubling that the federal judiciary can be seen as just another political branch, instead of the independent protector of democracy and the rule of law.
Huberfeld: The newly sealed conservative majority on the Supreme Court, as well as more than 200 other federal judicial appointments filled by President Trump (both thanks in part to Senator McConnell impeding the Senate’s appointment process during the Obama administration), will shape the way federal courts handle matters related to public health and the rights of vulnerable populations for years to come.
How do you expect Barrett joining the Court will affect public health?
Mariner: The new majority of privileged, conservative Supreme Court Justices are unlikely to appreciate how laws force so many Americans to struggle to survive with subsistence wages, job loss, inadequate education, lack of healthcare, obstacles to voting, and discrimination in so many facets of life. All the social determinants of health are at risk.
Huberfeld: Decisions protecting equal rights will hang in a new balance, such as the Obergefell decision, which held that the right to marry includes same-sex marriage. Fundamental rights such as the right to privacy, which protects reproductive care and decision-making such as access to contraception and abortion, will almost certainly face new challenges very soon. Many states already have laws on the books that defy the current privacy framework created by cases such as Roe v. Wade and Casey by limiting the time that women can obtain an abortion, extending waiting periods, and other recent limitations such as preventing access to abortion during COVID-19.
Justice Barrett refused to answer questions about these rights during Senate confirmation hearings, but she was vetted by conservative think tanks, which offers some insight into her jurisprudential viewpoint. This is just the tip of the iceberg.
Other issues affecting underlying determinants of health, such as environmental protection and the stability of the Affordable Care Act, also hang in the balance. The Court will hear oral arguments in Texas v. California on November 10th, which means Justice Barrett will help to determine the fate of the ACA and thus health insurance coverage for more than 20 million Americans. It seems unlikely that the entire ACA will be struck down, but ACA decisions have been unpredictable.
What do you see as the way forward for public health advocacy with this new Court?
Huberfeld: Some think that “court packing” (adding more justices) is the answer to concerns about the direction of the Supreme Court. This could occur by an act of Congress, but it does not guarantee that justices of any particular persuasion would be appointed and it could jeopardize the institutional legitimacy of the Court (even more than the speedy appointment of Barrett has done).
The work to be done in public health is the effort of advocating for legislation that protects both collective and individual health. COVID-19 has highlighted the need for better centralized decision-making, the importance of robust federal funding to support individuals, businesses, and states in an emergency, and the need to collect better data to understand the deep roots and ongoing impacts of health inequities. Better foundational health will support all populations more equitably when the next emergency hits.
These kinds of actions are the work of policymaking, and they can continue regardless of changes to the Supreme Court.
Mariner: There is always reason for hope, especially now, with more people actively participating in our democratic process. The US has survived past challenges, rejected fear, and emerged more determined to make a more perfect union. I have faith in the great melting pot of America. Our voices cannot be ignored, despite gerrymandering and voter suppression tactics. We can work together, particularly at the state and local levels, to guarantee access to healthcare and all the necessities of life that make true freedom possible.