Justice Gorsuch’s Potential Impact on Public Health

Posted on June 12, 2017 by jphmpdirect

by Tina Batra Hershey, JD, MPH, and Elizabeth Van Nostrand, JD Justice Gorsuch Public Health

Crossroads: Law and Public Health addresses topics related to the intersection of law and public health. This series highlights the perspectives of two attorneys turned academicians and explores legal and policy issues that impact public health. Justice Gorsuch Public Health

Newly confirmed Supreme Court Justice Neil Gorsuch recently took his seat on the bench, ending an extended vacancy on the nation’s highest court following the death of Justice Antonin Scalia in February 2016. At age 49, Justice Gorsuch is 8 years younger than the next youngest Justice, Elena Kagan, and 35 years junior to Ruth Bader Ginsburg (the oldest member of the Court). What potential impact will his appointment have on public health? Justice Gorsuch’s previous decisions and writings provide some insight into where he stands on some vital public health issues. Justice Gorsuch Public Health

For example, Justice Gorsuch is very vocal about his opposition to physician-assisted suicide. In his 2006 book The Future of Assisted Suicide and Euthanasia, he opined that assisted suicide should be banned because “all human life is fundamentally and inherently valuable” and “the intentional taking of human life by private persons is always wrong.” This position is troubling to those who support aid in dying, those jurisdictions that recently legalized physician-assisted suicide, and other states considering such legalization.

Since Justice Gorsuch has not issued a ruling in an abortion case, his opinion on the current status of abortion rights remains unclear. What is clear, however, is his opposition to the Affordable Care Act’s contraceptive mandate evidenced in his Tenth Circuit Opinions in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) and Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Burwell, 799 F.3d 1315 (10^th Cir. 2015) (Gorsuch, J dissenting opinion). He also supported defunding Planned Parenthood in Utah in Planned Parenthood Ass’n of Utah v. Herbert, 839 F.3d 1301 (10th Cir. 2016) (Gorsuch, J dissenting opinion). Although the Supreme Court issued its first decision in two decades relating to abortion last year, Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), it is unknown whether the high court will take on another abortion case in the near future. Given the large number of abortion laws being passed by the states at the present time, another decision may be issued by the Court soon. Justice Gorsuch Public Health

With respect to impacting public health, Justice Gorsuch is likely to have great influence through administrative law decisions. Under a concept referred to as Chevron deference, the Supreme Court ruled that, in general, deference must be given to a government agency’s interpretation of an ambiguous statute if its interpretation is reasonable. Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). More recently, in National Cable and Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005), the Court recognized that once Chevron is satisfied, an agency’s statutory interpretation should prevail even if a court previously adopted a contrary interpretation. The rationale behind this is that administrative agencies are deemed to be the experts in implementing often complex and technical regulatory schemes and are in the best position to interpret their intent, not the judiciary.

Justice Gorsuch’s views are contrary to those expressed by the Court in the past. According to Justice Gorsuch, Brand X allows “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.” Gutierrez-Brizuela v. Lynch, 803 F.3d 1165 (10^th Cir. 2015) (Gorsuch, J concurring opinion). Thus, in Justice Gorsuch’s view, Chevron deference violates the very idea of separation of powers so central to the US Constitution.

So how could that affect public health? Much of the law and policy that touches public health emanates from administrative agencies. By removing the deference afforded to administrative agencies, such agencies may be less likely to issue expansive interpretations of statutes, which may diminish protection of the public’s health in areas with public health impact, like environmental law.

Justice Gorsuch joined the high court in mid-April and we will soon learn more about how he will rule as Supreme Court Justice rather than as a Tenth Circuit judge. If his vision of limited administrative agency power is adopted by his fellow Justices, the impact on public health could be profound.