Excerpted From: Scott Budow, Medicine on a Grand Scale: The Supreme Court's Harmful Impact on U.S. Life Expectancy and a New Framework for Constitutional Interpretation, 7 Howard Human & Civil Rights Law Review 39 (2022-2023) (193 Footnotes) (Full Document Requested)

ScottABudowThe U.S. Supreme Court is not generally regarded as an arbiter of life and death. Rather, the Court decides cases and controversies between litigants, the vast majority of which are dry, technical disputes that lack any discernible social significance. A handful of cases each year tend to be newsworthy because they address politically contested subjects--religious liberty, affirmative action, immigration etc.--but we do not view the Court as broadly shaping the Nation's health trajectory. In those rare occasions where the Court's work on matters of life and death has garnered attention, the issues tend to raise profound questions that apply to narrowly defined groups, such as the constitutionality of the death penalty for juvenile offenders or the permissibility of assisted suicide for terminally ill patients. We turn to doctors to resolve our individual health issues and scientists to make medical advances for society as a whole. The Court, as an institution composed of lawyers without medical backgrounds, plays no significant role in our understanding of health.

That understanding is mistaken. Indeed, population health experts have concluded that “[h]ealth is shaped less by doctors and scientists than by decision-makers in government” and that “[h]istoric actions taken decades ago helped create today's healthinequities.” Legal decisions on issues such as education, housing, firearms, and incarceration are also public health decisions, even though none of these topics are medical in nature. These non-medical social determinants of account for the vast majority of the modifiable variation in premature mortality, and the basic rules of the road on these issues and others have long been determined by the U.S. Supreme Court.

If the Court decided issues in a manner that advanced health, or at least had a negligible effect, there might not be a compelling reason to analyze the impact of its opinions. However, a series of closely divided decisions since the 1970s have driven significant declines in public health and widened life expectancy inequality, primarily by exacerbating health outcomes for already marginalized communities. Indeed, the Supreme Court is one of the main reasons that, beginning in the 1980s, “advances in U.S. life expectancy began to lose pace with peer countries.” Yet, the Court's role in health remains largely overlooked and unexamined.

Demonstrating that the Court's decisions negatively impact health is not just an academic exercise of finger-pointing. Rather, it offers the opportunity to adopt a new framework for judicial interpretation. Where the purpose of the underlying document at issue includes promoting public health, and the specific text at issue is unclear, the anticipated impact of a prospective decision on public health can and should guide judicial interpretation. In these instances, justices should avoid a decision that has a demonstrably negative impact on public health by incorporating the evidence-based notion that non-medical social determinants of health largely define modifiable disparities in premature mortality. Specifically, where that document is the U.S. Constitution, and the text is unclear, justices should avoid interpretations that negatively impact public health based on social determinants of health analysis because those interpretations are necessarily inconsistent with the overarching goal of “promoting the general welfare” as stated in the Preamble.

A half century ago, it would have been difficult, if not impossible, to convincingly link social and economic decisions to public health. Today, given significant social science research advances, that is no longer true. We now know that certain social and economic issues powerfully affect health, and we can estimate the precise degree to which they do so. The federal government, state governments, the United Nations, and other leading authorities uniformly acknowledge the legitimacy of these factors in health. Yet, these determinants play no identifiable role in judicial interpretation to date. While public health may only be the purpose of a limited set of authorities, ignoring that purpose where it is applicable leads to cramped interpretations that ultimately miss the mark. Currently, those interpretations govern, in turn negatively shaping life expectancy in the U.S. It is past time for an updated approach.

This article initially explains how social determinants of health impact health. It then discusses several significant Supreme Court decisions that have harmed public health. Furthermore, it argues that those decisions were wrongly decided because they inhibit rather than promote the general welfare, and it encourages judicial authorities to use public health analysis in relevant disputes moving forward.

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At a basic level, it seems obvious that a document designed to achieve a declared purpose should not be interpreted to undermine that purpose. Yet, in significant areas of American life over recent decades, that is exactly what the U.S. Supreme Court has done when interpreting the Constitution. Certainly, clear text must be enforced according to its terms, but many of constitutional disputes that reach the Court are far from clear and ultimately rely on deliberately imprecise words and phrases, such as “equal protection” or the “liberty” protected by the “due process” clause. Indeed, in each case discussed above, multiple Supreme Court justices disagreed about how that underlying text applied, with one interpretation often prevailing over another by a single vote.

Justices should use a wider aperture to truly understand what these words and phrases mean and how they fit into the enumerated and clear purposes of the overall document. They should consider the impact of an amorphous constitutional word or phrase on public health, which they can assess with significant precision given the research on the social determinants of health. The purposes of the overall document are the keys to understanding ambiguity in its constituent parts, and those keys should be used to unlock doors that the Court itself has shut.

The public, more generally, also needs a new understanding of health. Health encompasses social issues, not just medical issues. If we want to measurably improve health and life expectancy in the U.S., we must confront current inequities that are often deemed permissible by the Supreme Court rather than rely on scientific advances alone. The Court has been and will continue to be an important element of public health. Many of the momentous issues that it confronts should be understood and re-examined in that light.

Scott Budow is an Adjunct Professor of Law at Fordham Law School.