Judicial Review of Public Health Laws: From Deference to Indifference

The Elena and Miles Zaremski Law Medicine Forum presents Judicial Review of Public Health Laws: From Deference to Indifference with Wendy E. Parmet. For most of American history, courts granted significant deference to public health officials. This deference, which could be and was at times abused, was justified by numerous factors including the broad authority that legislatures granted to health agencies, respect for scientific expertise, and the high value that the law gave to public health, as expressed by the maxim salus populi suprema lex. This tradition of judicial deference to public health authorities eroded during the COVID-19 pandemic as courts heard thousands of challenges to COVID-19 related public health orders. Although most courts upheld most uses of public health powers during the pandemic, many courts, including the Supreme Court, replaced deference with deep skepticism of expertise and indifference to the public health effects of their decisions. This shift was especially apparent in Free Exercise challenges to public health orders, as well as cases reviewing the scope of authority of federal officials under the novel major questions doctrine. Building upon the book, Constitutional Contagion, COVID, the Courts and Public Health, this talk will review the shift from deference to indifference during the pandemic and discuss its post-pandemic spillover, including in challenges to the authority of the FDA and EPA and childhood vaccine laws. The talk will also examine the connections between the decline of deference and threats to democracy and consider what this new judicial era may augur for public health. Speaker Bio Wendy E. Parmet is the George J. and Kathleen Waters Matthews Distinguished Professor of Law and Professor of Public Policy and Urban Affairs at Northeastern University, where she is the faculty director of the Center on Health Policy and Law. An associate editor for the American Journal of Public Health, her most recent book is Constitutional Contagion: COVID, The Courts and Public Health (Cambridge University Press, 2023)