From Anxiety to Action: Responding to a Cruel and Unusual Supreme Court Term
HealthBegins July 18, 2024

With events this past weekend, many people in our network are sharing their anxiety and concern about political violence in the U.S. and implications for the presidential election this fall. This heightened anxiety is compounding the concern and outrage that many health equity practitioners and advocates have expressed in the wake of the Supreme Court’s latest decisions. Yet the fresh fears about November, while critical to heed and respond to, should not pull all our focus from the present.

While the outcome of the upcoming fall election will have significant consequences for health equity, the reverberations of the Supreme Court’s recent rulings are already being felt. It’s critical to understand these decisions and be clear-eyed about what they represent—a set of structural threats to health safeguards and freedoms for our country and our communities. We must not wait until November to assess the impact of these decisions and take action.   

We focus here on a few of the decisions from the Court’s recently completed 2023-24 term, explain their serious health equity implications, and suggest ways for us all to help our institutions and communities respond.

Criminalizing homelessness

First, in Johnson v. Grants Pass, the court’s majority decision insists that fining and criminalizing homelessness is not “cruel and unusual.” This decision blatantly ignores compelling evidence that penalizing unhoused people with fines, arrests, and incarceration has been tried and repeatedly failed. The decidedly cruel approach encouraged by the ruling also does nothing to address the root causes of homelessness. Instead, it imposes unnecessary costs on taxpayers and perpetuates a vicious cycle of poverty and instability, further burdening an already overtaxed carceral system. And, as our friends at the National Health Care for the Homeless Council recently stated, this decision will exacerbate health inequities, including racial health inequities, and “adds more barriers to receiving life-saving care, and makes it harder for healthcare providers to deliver that care.”

Making it easier to block and override governmental reforms for health equity

Then, in the ruling on Loper Bright Enterprises v. Raimondo (combined with Relentless v. Department of Commerce), the Court stripped more rulemaking authority from federal agencies—those who are best suited to interpret the laws they are charged with enforcing. In doing so, the Court threw out an established precedent known as the Chevron doctrine. Chevron previously required courts to defer, in large part, to reasonable federal agency interpretations of ambiguous statutes administered by those agencies. Under Loper Bright, courts are now instructed to “exercise their independent judgment in deciding whether an agency has acted within statutory authority.” This means that courts can effectively disregard and rewrite expert decisions previously made by the Centers for Medicare and Medicaid Services, the Department of Housing and Urban Development, the Environmental Protection Agency, and countless other agencies with important equity roles.  

In recent years, some courts have been steadily chipping away at the authority of federal agencies to protect public health (for example, judges have invoked other legal doctrines to rule that the CDC didn’t have authority to require airline passengers to wear masks). Now, in the wake of Loper Bright, health equity advocates and practitioners should expect to see more litigation against federal rules and a chilling effect on the creation of new ones as agency regulators and legislators face uncertainty. While proponents of Loper Bright hope that this will make it difficult for zealous regulators to expand the scope of their authority, it’s clear that this ruling will also increase the likelihood of court challenges to reasonable and important regulations already in place. 

At the state and federal level, we will likely see more legal challenges brought by reactionary or opportunistic forces seeking to curtail the equitable distribution of opportunities and resources in our society. These forces may include actors within health care itself; some payers and providers may seek to exploit this opening to challenge regulations that improve health and advance equity for enrollees and communities but cost healthcare institutions—putting an even greater onus on us as Upstreamists to urge our organizations to align lobbying and judicial advocacy with our commitment to health equity and our responsibility to do no harm. As these challenges increase, courts will be left to interpret laws or effectively rewrite federal agency regulations on health, food, climate, and all other domains of public safety, despite the agencies’ decades of expertise on these matters and the extensive public input processes in place to protect our rights and health.

This change has already begun. Section 1557 of the Affordable Care Act bars discrimination based on age, disability, race, national origin, color, or sex by “any health care program or activity” that receives federal funding. However, in the last few weeks some federal judges have cited Loper Bright to reinterpret Section 1557 and challenge or block protections for LGBTQ+ people. One federal judge, for example, blocked the enforcement of new HHS anti-discrimination rules for transgender patients. With the Loper Bright decision, courts can now simply substitute their views regarding the interpretation of Section 1557, contrary to Congress’s decision to give HHS broad implementation power. 

Scholars, including Sara Rosenbaum, professor of health law and policy at George Washington University, have noted other potential consequences of this ruling for legal immigrants who currently receive public benefits without risk of deportation, based on guidance from the Department of Homeland Security. While Congressional efforts to overturn this agency rule have failed in the past, the Loper Bright decision now makes it possible for courts to potentially impose deportation as a consequence for legal immigrants who enroll in Medicaid, Supplemental Nutrition Assistance Program (SNAP), or public housing programs. Sadly, we will likely see more historically marginalized communities at risk of structural harm as the impact of Loper Bright ripples through agencies and courts.  

Increasing regulatory uncertainty and risks of structural harm

Several additional decisions in this Supreme Court term combine with those above to saturate health care with regulatory uncertainty and increase risks of structural harm. Corner Post, Inc. v. Board of Governors of the Federal Reserve System extends the timeframe to sue agencies. The Court also punted the consolidated cases Idaho v. United States and Moyle v. United States, which addressed whether a state abortion ban conflicts with the federal Emergency Medical Treatment and Labor Act (EMTALA). The resulting uncertainty stands to leave millions of people in limbo about their own healthcare access. It compounds the regulatory uncertainty created by the Loper Bright decision for governmental agencies—as well as for the providers, health systems, health plans, nonprofits, and businesses that rely on clear regulations. Together, these decisions may lead to a chilling effect on equity-focused healthcare innovation and reform, threatening the promising strides we’ve seen to integrate health and social care and address health and racial equity.

What we do next

As Upstreamists, we know that we have a responsibility to protect wellness and address inequities caused not only by individuals, but by policies, practices, and laws that put people and communities in harm’s way. Given the immediate implications of the Supreme Court’s decisions, we don’t have to wait for the fall elections to respond to these legal and structural risks to the health of Americans.

At the moment, HealthBegins is working with allies to channel our concern into concrete actions to help counter these structural threats and risks to health equity. And we trust that each person reading this is reflecting deeply on the ways individual and institutional harms may be further perpetrated through these decisions. As you process this moment, we ask each of you, as leaders and vanguard members of the Upstream Movement in health care, to commit to supporting collective action.

As concerning as these cases may be, we still have power and an opportunity to influence the course and impact of these decisions. Here are some ways to get started—or as our colleague Alejandra Cabrera puts it, to step into your power. 

Learn more

Stepping into your power starts with accessing critical information. As always, we urge you to educate yourselves and join collective opportunities to learn with others. For example:

Join with others

Now more than ever, we need focused, mission-aligned coalitions to help individuals, institutions, and community-based organizations build collective power and respond to shared challenges to health equity. We encourage you to engage with coalitions, raise these concerns, and help shape collective responses. Here are a few to consider   

  • Health Equity Community Collaborative (HECC): This new coalition, in which HealthBegins is a core partner, grew from several national community-based equity collaboratives formed during the pandemic. HECC will soon host a series of conversations to help leaders understand the legal challenges facing health equity, including challenges to diversity and inclusion efforts spurred by a landmark Supreme Court ruling in 2023. 
  • Rise to Health Coalition: This healthcare-focused coalition helps leading organizations partner and align to advance healthcare equity. HealthBegins is a founding collaborator.  
  • Common Health Coalition: Drawing on lessons from the pandemic, this new national coalition seeks to improve coordination between health care and public health agencies. HealthBegins was one of the first organizations to join.
  • Medicaid Food Security Network: This national coalition, which HealthBegins co-designed, mobilizes Medicaid systems to become a key partner in food security and will continue to push for and protect Medicaid’s ability to help connect people with health-related social needs to resources.

Use your voice

Next, we can leverage our power by getting politically involved, in collaboration with fellow Upstreamists. Potential actions include:

  • Congress is in recess starting mid-July and again throughout August. Reach out to your representative while they are in your district about the issues that matter to you and that may be jeopardized by the Supreme Court’s rulings, such as housing, public health, immigrant health, LGBTQ+ rights, and reproductive justice.
  • Meanwhile, read about the role of state courts, which have an outsized impact on health equity, and consider opportunities to inform, advocate for health equity, and decide who sits on the courts in your state.
  • With upcoming fall elections, register to vote, consider supporting nonpartisan voter registration in your institution, participate in local campaigns, and join efforts and movements that support the outcomes you want to see at the local, state, and national level.   

No one ever said equity and justice would come quickly or easily. The path is long and beset with hazards and backtracks. But we are on it. And the strides we’ve made are too important to abandon.  

Stay with us. Stay together. We know what we are here for. We still have power. And we are louder and stronger together. 

With Solidarity,

Sadena & Rishi