The Courts and Public Health: Caught in a Pincer Movement

Abstract

Public health practitioners are familiar with the general outlines of legal authority and with judicial standards for reviewing public health regulations. What may not be as familiar are three emerging judicial doctrines that pose considerable risks to public health initiatives.

We explain the contentious series of judicial rulings that now place health departments’ broad grant of authority in jeopardy. One doctrine invokes the First Amendment to limit regulatory authority. The second involves the Supreme Court’s reinterpretation of federalism to limit both federal and state public health interventions. The third redefines the standard of evidence required to support regulations.

Together, these judicial trends create a pincer movement that places substantial new burdens on the ability of health departments to protect health.