When Judicial Hindsight Harms: Public Health Evidence Says the Public Charge Rule Should Stay Blocked
Despite substantial public health research establishing that the Trump administration’s “public charge” rule will lead to devastating health harms, the Supreme Court on Monday voted to upend a district court’s nationwide injunction, allowing the Rule to take effect while litigation proceeds. Under the Rule, which will take effect on February 24, the U.S. Department of Homeland Security may deny a noncitizen admission or status adjustment based on past, current, or predicted use of certain public benefits, including healthcare, nutrition, and housing assistance programs, among other criteria. While the Rule may ultimately be deemed legally impermissible or unconstitutional, allowing it to go into effect, even temporarily, will lead to withdrawal from critical programs and result in irreversible harms.
This is just one example of a policy that courts have allowed to take effect even when strong evidence predicts serious and widespread health harms. In 2013 Texas passed HB2, a bill that imposed several restrictions including a requirement that doctors who perform abortions obtain admitting privileges at a local hospital. Despite evidence that the requirement would cause large-scale clinic closures, a federal appellate court quickly upended a district court’s order blocking the new law, and allowed the law to take immediate effect. Eleven clinics closed that day.
Three years later, the Supreme Court found the Texas Admitting Privileges law unconstitutional. But in the interim, the consequences were devastating. The number of abortion facilities in Texas rapidly declined from 41 to 19. Within one year, difficulty accessing abortion led to a decrease in the state’s abortion rates, an increase in births, and an increase in second-trimester abortion. While rigorous public health evidence had predicted those harms, the legal system adopted a wait-and-see approach.
Similarly, consider the transgender military ban, third-country transit bar, and the border wall injunction. These cases reflect an all-too-common misalignment between the public health and legal approaches to solving problems. While public health is oriented toward preventing future harm, the legal system tends to focus on addressing harms retroactively. Although preliminary injunctions and pre-enforcement challenges provide essential mechanisms for advocates to forestall rights violations and prevent ill effects, some courts remain skeptical of prospective claims alleging harms that have not yet panned out — even when claims are supported by rigorous evidence.
The legal system’s reticence to consider predictive evidence has led to irreparable harm. Take the public charge case. Credible evidence shows that the rule will have wide-reaching health harms. Researchers have documented the rule’s chilling effects, and systematically calculated anticipated disenrollment from critical health programs such as Medicaid. The Kaiser Family Foundation estimated that between 2 and 4.7 million individuals could disenroll from Medicaid as a result of the rule.
Long-standing public health research has further documented the critical role of stable housing, SNAP, WIC, and Medicaid in improving health, and the negative health outcomes that follow when individuals lack access to such programs. To name a few, lack of access can increase maternal depression; pregnancy risks and poor birth outcomes; and physical, psychosocial, and academic challenges among children. The American Public Health Association spoke out against the finalized rule, which would likely increase rates of obesity, malnutrition, and poverty; lower rates of educational attainment; and increase healthcare costs.
Allowing policies like the public charge rule to take effect is particularly troubling, since we have seen that even when policies are in place temporarily, their negative impacts can persist for years. Looking back at HB2, most clinics that closed have been unable to reopen even after the Supreme Court struck down the law. Currently, there are only 22 abortion clinics available to serve the state’s 5.9 million women of reproductive age. Clinics have not simply been able to reopen their doors — most had to lay off their staff and physicians, some could not afford their licenses, and others lost leases or had to sell equipment to offset costs. While laws may eventually be invalidated, the harms inflicted in the meantime may never completely reverse. This is not a reality that we should accept.
Given the challenges with reconciling the public health and legal approaches in court, public health voices need to drive public policymaking from the start. This is particularly important for policies with unaddressed health consequences, such as those dealing with immigration or education. Policymakers could start by utilizing a Health in All Policies Approach, which requires consideration of a range of potential health impacts in proposing legislation or rules. To go a step further, policymakers can learn from the environmental impact assessment model and mandate similar health impact assessments in their legislation.
For years, the public health community has been speaking out against harmful policies instead of waiting for people to suffer their consequences. It’s time for policymakers and judges to listen.
Monique Baumont is a Research Associate with The Center for Reproductive Rights.
Elyssa Spitzer is a Legal Fellow with The Center for Reproductive Rights.
