How Will Amy Coney Barrett’s Confirmation to the Supreme Court Impact Public Health?
Two School of Public Health experts weigh in on what to expect
On October 26, Amy Coney Barrett, a conservative appeals court judge, was confirmed as the 115th justice to the US Supreme Court by the US Senate, the first justice in history to be confirmed just days before a presidential election. She fills 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’s confirmation followed a bitterly fought Senate hearing. The final vote, 52 to 48, was strictly along partisan lines, with only one Republican, Senator Susan Collins of Maine, siding with Democrats to cast a “no” vote. Democrats had argued that appointing a successor to Ginsburg be postponed until after Election Day and noted that the appointment was hypocritical of a Republican-controlled Senate that had blocked President Obama’s nominee to the Supreme Court, Merrick Garland, for several months in 2016 on the grounds that a Supreme Court seat should not be filled in a presidential election year.
Barrett’s appointment now secures a 6-3 conservative majority on the court, presumably for years to come, something that has alarmed civil rights, voting rights, and public health advocates, among others, but that conservatives have hailed as a victory.
To find out what impact Barrett could have on the future of public health in the United States—including reproductive health and the future of the Affordable Care Act (also known as Obamacare)—BU Today reached out to two School of Public Health faculty, Nicole Huberfeld, a professor of health law, ethics, and human rights, and Wendy Mariner, Edward R. Utley Professor of Health Law, Ethics, and Human Rights; both are also School of Law professors.
With With Nicole Huberfeld and Wendy Mariner
BU Today: How do you see Amy Coney Barrett’s 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 Mitch McConnell (R-Ky.) 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.
BU Today: How do you expect that Barrett’s presence on 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 her 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 10, 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.
BU Today: Given the court’s new composition, what do you see as the way forward for public health advocacy?
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 United States 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.