The Challenge
During the COVID – 19 pandemic, a wave of lawsuits challenged public health measures intended to protect communities from the spread of this novel, contagious disease. Decisions in key cases have signaled that the deference to the expertise and judgment of health officials that courts had previously conferred has significantly eroded. This new judicial posture has since been evident in other types of public health cases and will undoubtedly invite future challenges to restrict public health authority.
Although the judiciary’s approach to public health law powers may have changed under our feet, the need for a robust public health system has not. The public health law community must work together in this time of legal instability to ensure that the new jurisprudence contains a sensible measure of deference to public health officials, and that it heeds the scientific and technical evidence upon which public health decisions are based.
We must understand how to be persuasive to courts that have adopted this skeptical turn and encourage them to balance their legitimate concerns about the exercise of broad authority with the need for evidence-based, equitable public health orders. We need a deeper understanding of what has led courts to change their approach to public health powers. We need to take lessons from other groups that have persuaded the judiciary to adopt their preferred approach to areas of their interest and concern. We also need a fuller understanding of what tactics, strategies, and arguments to adopt, and what steps public health can take to move the judiciary to a position that is less skeptical of the exercise of public health powers, and that recognizes the need to protect public health and promote health equity.
The Act 4 Public Health partnership will host a convening at Northeastern University School of Law to examine the challenges before us. Together we can devise a plan of action that will help the public law community and its allies effectively respond to our new legal environment, and plan how to foster and maintain a jurisprudence that supports the fair, effective and evidence-based exercise of public health authority.
The Strategy
Develop an action plan to protect the exercise of evidence-based and equitable public health measures that are currently being challenged in the courts.
Create and sustain a dynamic legal discourse that advocates for and justifies court acceptance of flexible, science-based, equitable public health decision-making.
Develop a strategy to persuade courts to expand the concept of “public health” to include social determinants of health.
Identify new partners within and beyond the public health community to refine, fund, and implement the tactics we develop to achieve these goals.