Science and Strict Scrutiny

by Michael Dorf

My latest Verdict column went up yesterday but I pre-empted my accompanying blog post in order to discuss the breaking story regarding SSM in Alabama. Here I'll add some thoughts to go with the column. In it, I explain why the anti-vaxxer case would likely be a loser in court but my main point is to unpack the seemingly odd anti-vaxxer coalition comprising elements of the libertarian right and the alternative-medicine left. Drawing on a terrific article by American University Professor Lewis Grossman (who will be a visiting professor at Cornell next fall), I trace the roots of what he calls "American health libertarianism." I conclude that, viewed in historical context, the left/right coalition is not so odd after all.

In the course of the column, I explain why anti-vaxxers would likely lose a constitutional claim, even though infringements on the right to refuse medical treatment trigger strict scrutiny: 1) Everyone would concede that public health is a compelling interest; and 2) courts are extremely reluctant to upset the judgments of the political branches regarding medical necessity, so the courts would very likely find that a vaccination mandate is narrowly tailored to serve public health.

In the column, my chief illustration of point 2) is the Supreme Court's willingness in Gonzales v. Carhart to credit dubious medical opinion cited by the Partial Birth Abortion Ban Act's supporters as sufficient to create "documented medical disagreement whether the Act’s prohibition would ever impose significant health risks on women," and then to say that given that uncertainty, the government was entitled to limit the abortion right. In this regard, Gonzales v. Carhart  is quite different in tone from Roe v. Wade, which, as its supporters and critics alike have sometimes noted, reads almost as though the main right protected is that of a doctor to apply his or her best medical judgment.

Roe aside, other cases also support the proposition that the Court affirms medical judgments by political actors, even against claims of individuals who wish to contest the state's medical judgment. For example, in United States v. Rutherford, the SCOTUS unanimously rejected terminially ill patients' contentions that federal law ought to be construed to give them access to laetrile without full FDA approval. Although the issue was one of statutory construction and administrative law, the Court's tone was unmistakable: We're not medical experts, so we're going to leave this to the administrative agency and the political branches.

It's true that the weight of scientific opinion indicates that laetrile is not effective at fighting cancer, but the Court made no real effort to evaluate the medical evidence on its own. And as Gonzales v. Carharat indicates, it's relatively easy to imagine the Court writing a similar opinion even if there were evidence that some unorthodox treatment held some promise.

I don't want to say that the Court is wrong to defer to other actors in these cases. Judges are not, after all, scientific or medical experts. But of course, neither are members of Congress and even though administrative agencies often employ experts, they also make judgments based on political factors.
As Peter Strauss observed in an important speech (later published in the Wake Forest Law Review) nearly two decades ago, the idea of the "expert agency" has given way to the politically accountable agency.

The upshot is that strict scrutiny or other nominally searching forms of judicial review of legislative or administrative action ostensibly rooted in science will typically be flabby in fact. As I note in the column, that's not a problem in the anti-vaxxer case, where science really does support vaccination mandates. However, it is not difficult to find various other laws and policies that are justified as based in science but in fact rest on little more than custom or worse, lobbying.