Scholars have come to recognize that law operates as a social determinant of health.¹ That has been especially apparent since the start of the COVID-19 pandemic, during which federal and state laws abetted the rapid development and deployment of life-saving vaccines, supported health care systems that faced unprecedented strain, and provided critical economic support to individuals and businesses. State and local laws also helped enforce physical distancing, required masking, and in some instances mandated vaccination. Taken together, these legal responses undoubtedly saved lives and prevented economic disaster.^2,3

The pandemic, however, also highlighted the limit of law’s capacity to support public health. As early as 2021, it was apparent that “for law to be effective, there must be strong leadership, ample resources fairly distributed, and the public’s trust.”^4(p.48) Two years later, as the articles in this special section document, it is also evident that the use of law to protect the public’s health faces considerable political and judicial resistance. As these articles show, this pushback raises serious questions about law’s continued capacity to protect population health and address health inequities moving forward.

In their opinion editorial, Hodge et al. (p. 275) assess the state of public health emergency laws before, during, and after the pandemic. They begin by discussing the 2001 Model State Emergency Health Powers Act, which was designed to provide officials with a range of authorities they might need during a pandemic. After showing how the model act foresaw the types of measures that states used in response to COVID-19, they explain that most states relied on general emergency laws rather than their specific public health powers during the pandemic. Regardless, state orders faced resistance in both the political and judicial arenas, in part because of what the authors term COVID-19 “denialism.” They conclude by highlighting several responses to that denialism and calling for efforts to reform public health laws to make them more robust and limit “denialist political influences.”

Parmet and Khalik (p. 280) describe the challenges to public health and elected officials’ use of emergency powers and other legal authorities in their analysis of the more than 1000 judicial decisions related to or precipitated by COVID-19 between March 1, 2020, and July 1, 2022. The decisions were broadly categorized by legal claims relating to (1) individual rights, (2) scope of authority, and (3) administrative procedures. Individual rights claims were the most common challenges, including claims alleging violations of the right to due process and equal protection under the Fourteenth Amendment (e.g., shuttering or restricting some but not all businesses), the Second Amendment (e.g., closing gun stores or shooting ranges), and the Free Exercise Clause of the First Amendment (e.g., limiting or banning in-person worship).

Many of the challenges to scope of authority pertained to measures that were not explicitly authorized by statute, including cases challenging governors’ authority to declare or extend states of emergency and the eviction moratorium of the Centers for Disease Control and Prevention (CDC). Challenges to administrative procedures included claims that uses of emergency powers bypassed the usual rulemaking processes. Although smallest in number of the three categories of legal claims, courts were more likely to rule in favor of plaintiffs (33 of 85 relevant decisions) in challenges to administrative procedures than in the other two categories. The analysis of these judicial decisions indicates that, in contrast to earlier periods, public health officials can no longer assume that courts will give them the benefit of doubt when they impose measures to control or mitigate disease. This is especially evident in the Supreme Court’s decisions regarding the free exercise of religion.

Platt et al. (p. 288) review 1531 bills addressing emergency health authority that were introduced by state legislators between January 1, 2021, and May 20, 2022. The authors group these bills into six categories: limiting public health authority, expanding public health authority, shifting public health authority responsibility, limiting federal laws, regulating emergency measures, and preempting emergency measures. Of the 1531 bills introduced, 191 were passed by 43 states and the District of Columbia during the observation period, including 65 laws limiting public health authority (by limiting the authority of governors, other state officials, or local health officials), 17 expanding authority, 163 regulating the use of public health authority, and 30 preempting local use of public health measures. Although the authors found no significant difference in political party affiliation for bills that were introduced, there was a striking difference in affiliation for the outcomes of these bills: all states but one (Connecticut) that enacted one or more restrictive public health laws were controlled by Republican legislators.

The authors characterize the environment of this outpouring of legislative activity in clear language:

In her editorial, Wiley (p. 269) looks forward to the Supreme Court’s 2022–2023 term. After noting that the cases the court will decide in 2023 are likely to have a “less direct and less dramatic” effect on health than the major decisions of 2022, Wiley discusses several pending cases that may have significant implications for health. Among them are cases regarding the ability of Medicaid beneficiaries and providers to enforce federal requirements for that program, the right of businesses to refuse to comply with civil rights laws when doing so conflicts with their self-expression, the continuation of affirmative action in higher education, the maintenance of tribal sovereignty, and the ability of state courts to check efforts by state legislatures to gerrymander or even ignore the voters’ will in federal elections.

Other important cases relating to firearm regulations, abortion access, and the Affordable Care Act may come from the court’s so-called “shadow docket” that deals with emergency petitions. Although the outlook for health before the current deeply conservative Supreme Court majority does not seem propitious, Wiley notes that the “legal landscape” is “changing rapidly” and today’s health-harming decisions may not have long legs. To facilitate the short reign of these decisions, she calls on dissenting jurists and legal commentators to “lay the groundwork for more just approaches in the future.”

Gostin’s editorial (p. 272) concludes this special section. Although his initial focus is on the article authored by Parmet and Khalik, Gostin’s piece serves as a coda to the section’s main themes, emphasizing how judicial decisions have undercut the ability of federal administrative agencies to protect health. The Supreme Court’s decision to block the CDC’s eviction moratorium, as described by Parmet and Khalik, is an example of how the court has used the “major questions” doctrine during the pandemic to limit administrative agency actions that may have major economic or political impact to those with explicit statutory authority. Moreover, the application of this approach may extend beyond health emergencies to more “settled” areas of law, including the Clean Water Act, which the court will consider in the upcoming term.

Gostin also reminds us that, although science matters in helping to shield against uninformed legal challenges, ultimately courts are more likely to rule in the direction of what the public views as favorable. Has there ever been a more critical period for a well-informed citizenry?

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