The Supreme Court v. public health

Session that began today threatens new setbacks for America's health

The Supreme Court session that began today poses numerous new threats to the health of the American people.

In the wake of the high court’s cancellation of a woman’s right to an abortion, the conservative cabal now in control could decide to take up cases that will eviscerate the Affordable Care Act’s guarantee of no-cost preventive medicine, limit the federal government’s ability to protect people with disabilities, and prevent individuals harmed in nursing homes from suing in state courts.

The most immediate threat to public health came in the case Sackett v. Environmental Protection Agency that was argued today. Most legal observers predict the high court will side with the Pacific Legal Foundation, which is backing the plaintiff’s longstanding attempt to develop property within wetlands protected by the Clean Water Act.

Developers have already eliminated about 90 percent of the the nation’s natural wetlands, which in their pristine state help protect coasts from destructive storms and cleanse drinking water. The few wetlands that remain are home to one-third of America’s endangered species.

Most high court observers predict the conservative majority will continue down the path of narrowing the scope of the nation’s environmental laws. Last June, in the last session’s last day, they limited the EPA’s ability to regulate carbon dioxide emissions from power plants, a severe blow to the fight against global warming. Upholding the would-be developer Sackett’s claims will further degrade the government’s ability to protect our air and drinking water, which, given soaring asthma rates and the ongoing crises in towns like Flint, Michigan, and Jackson, Mississippi, will undoubtedly have serious long-term health consequences.

Home care at risk

The Americans with Disabilities Act and the 1999 Supreme Court decision in Olmstead v. L.C. requires public programs to offer their services to the disabled in “appropriate” settings. More than three-quarters of adults over 50 say they want to age in place.

But numerous people age with disabilities face institutionalization in nursing homes or other facilities when they can’t obtain home care and prepared meals from local service providers. The Department of Justice has played a key role in enforcing the law by requiring states to provide these services in community-based settings.

Several states have balked at the requirement. In a case bubbling up from the Florida swamps, Gov. Ron DeSantis’ state has asked the Supreme Court to overturn an Eleventh Circuit court decision affirming the DOJ’s right to sue states for violating the Olmstead requirements. Mississippi has filed a similar challenge to a circuit court ruling that upheld a DOJ suit charging its mental health system with depending too heavily on institutionalization.

This is part and parcel of Republican-run states’ efforts to eliminate the ability of the federal government to enforce national laws within their boundaries, just as it has eliminated most of the enforcement mechanisms in the Civil Rights era’s voting rights law. The AARP Legal Foundation warns “the resolution of these cases will influence future enforcement of the ADA and the ability of older adults with disabilities to age in the community.”

Access to state courts at risk

You have to admire the audacity of conservative legal activists. Consistency, like legal precedent, has no place in their thinking, not when there is a right wing agenda that needs advancing.

They want the federal government out of their lives when it comes to civil rights or environmental protection. But they prefer it when the federal government’s power can be wielded to protect property owners or restrict the right to sue.

One’s ability to sue when harmed in a nursing home could get restricted during this Supreme Court session. A California nursing home has asked the high court to review lower court decisions that determined the federal declaration of a state of emergency in the early days of the Covid-19 pandemic did not prevent the family of a person who died at a nursing home from suing for damages in state court.

The Public Readiness and Emergency Preparedness Act of 2005 (PREP Act) provides legal immunity for health care facilities that use countermeasures like vaccines,
personal protective equipment and medications to combat pandemics. But if there’s willful misconduct that causes harm to a patient, the person or their survivors can still sue. But, the PREP Act says, the suit must be filed in the U.S. District Court for the District of Columbia with all compensation coming from federal funds.

Shortly after March 2020 when a state of emergency was declared, 77-year-old Ricardo Saldana died of COVID-19 in the Glenhaven nursing home near Los Angeles. His family alleged in state court that another patient with the disease had been moved into Saldana’s room when neither he nor attending staff had been offered masks, gowns or other personal protective equipment, which remained locked in a supply closet. Such negligence had nothing to do with the pandemic or the home’s responsibilities under the emergency declaration, the family claimed.

The home operator, after losing in district court and the Ninth Circuit Court of Appeals, which covers nine western states, petitioned the Supreme Court to review the case. If the high court takes up Glenhaven Healthcare v. Saldana and rules in the nursing home’s favor, individuals harmed by provider actions during any public health emergency — no matter what the cause of that harm — could lose their right to sue in state courts.

Finally, the case that could eliminate Affordable Care Act’s guaranteed access to no-pay preventive services — Braidwood Management v. Becerra — is waiting in the wings. I wrote about the significance of that case a few weeks ago. It’s unlikely that case will reach the Supreme Court during this session.

But it’s clear from these cases and others that the conservative legal assault on public health is far from ended. Eliminating the federal guarantee of a right to an abortion in Dobbs v. Jackson Women’s Health Organization was only the first bullet point on their long-term agenda.