Last year, a Dan Murphy’s mobile billboard rolled into Byron Bay, parking itself 185 metres from Byron Bay High School. Emblazoned across it read, “Go for a skate while you wait for your Dan Murphy’s order to arrive.”
Our community expects advertising of harmful and addictive products like alcohol to follow government-led rules that protect our children, families, and communities from harm. But alcohol companies are largely left to write and administer their own rules through the Alcohol Beverages Advertising Code (ABAC) Scheme.
The result — our children are increasingly exposed to alcohol marketing, increasing their risk of using alcohol at an earlier age and in higher volumes.i
So, when community members complained that the Dan Murphy’s billboard was targeting their children, their complaint was dismissed by ABAC.ii
This is a typical response by ABAC, which is funded and managed by the three major alcohol industry peak bodies (Brewers Association, Spirits & Cocktails Australia, and Australian Grape & Wine).
Fundamentally, the ABAC Scheme is flawed. This is most clear through the voluntary nature of their advertising code, meaning that alcohol companies are not required to abide by the code and don’t face the consequences for breaching it.
The voluntary code is also limited in scope and ambiguous, which often leads to interpretations favourable to alcohol company interests, allowing our children to be exposed to harmful marketing practices.
There are clear contradictions in recent ABAC adjudication decisions that dismiss community complaints about alcohol marketing targeting children and adolescents.
For example, in the Dan Murphy’s billboard case, the ABAC panel determined that the advertisement was not appealing to children because the advertisement used dark rather than bright and contrasting colours. However, in June 2021, the panel also dismissed a community complaint about marketing by alcohol giant Diageo that used bright and contrasting colours and childlike phrasing ‘New can, who dis?’. The panel stated that the ‘retro’ design made the advertisement primarily targeted to adults.iii
In December 2021, the ABAC panel dismissed community complaints about a bright cartoon-styled mural advertising the rapid alcohol delivery company Boozebud on the same street as a primary school. Not only did the panel dismiss this community complaint, but ABAC also ‘worked collaboratively’ with Boozebud to develop this lively mural. Although hundreds of children passed by this mural every day, the panel dismissed the complaint because it appealed to adults as well.iv
Despite the Code stating that the use of designs that create confusion with soft drinks constitute an appeal to children and adolescents, in March 2022, ABAC dismissed a community complaint about an advertisement for Bundaberg Rum that closely resembles non-alcoholic ginger beer. The advertisement featured a cross-promotion between the alcoholic and non-alcoholic products, with both products depicted, but it was still deemed not to breach the Code.v
In further contradiction, the use of Bundy Bear in this cross-promotion was not deemed to breach the code, despite the ABAC panel having previously stated that Bundy Bear has the potential to appeal to children.vi This builds on the history of Diageo’s Bundaberg Rum advertising to children, including during the popular show for toddlers, Dora the Explorer.vii
These are just a few examples of ABAC’s recent failure to protect children and adolescents from alcohol marketing, but the systemic failures of the ABAC Scheme are well documented.viii
Our community deserves better advertising standards for alcohol products. These should be developed and administered by a governing body that represents the community’s interests, not the interests of alcohol companies. Only then can we see alcohol companies being held accountable for harmful targeting of children.
i Anderson et al. (2009) Impact of Alcohol Advertising and Media Exposure on Adolescent Alcohol Use: A Systematic Review of Longitudinal Studies. Alcohol & Alcoholism 43(3):229–43; Smith L.A. and Foxcroft D.R. (2009) The effect of alcohol advertising, marketing and portrayal on drinking behaviour in young people: systematic review of prospective cohort studies. BMC Public Health 9(51) doi:10.1186/1471-2458-9-51; Jernigan et al. (2016) Alcohol marketing and youth alcohol consumption: a systematic review of longitudinal studies published since 2008. Addiction 112: 7–20 doi:10.1111/add.13591; Sargent and Babor (2020) The Relationship Between Exposure to Alcohol Marketing and Underage Drinking Is Causal. Journal of Studies on Alcohol and Drugs.
ii ABAC (2021) ABAC Adjudication Panel Determination 129/21.
iii ABAC (2021) ABAC Adjudication Panel Determination 145/21.
iv ABAC (2021) ABAC Adjudication Panel Determination No 273/21.
v ABAC (2022) ABAC Adjudication Panel Determination No 11/22.
viii For academic reviews see: Reeve B. ‘Regulation of Alcohol Advertising in Australia: Does the Abac Scheme Adequately Protect Young People from Marketing of Alcoholic Beverages?’, QUT Law Review (2018) 18(1) 96–123; Pierce H et al. ‘Regulation of alcohol marketing in Australia: A critical review of the Alcohol Beverages Advertising Code Scheme’s new Placement Rules.’ Drug Alcohol Review (2019) 38(1) 16–24. For government reviews see: Northern Territory Government, ‘Alcohol Policies and Legislation Review Final Report’ (2017) Available from https://alcoholreform.nt.gov.au/milestones/about-the-review/final-report; Education and Health Standing Committee. Alcohol: Reducing the harm and curbing the culture of excess. Legislative Assembly, Parliament of Western Australia; 2011. Available from: https://www.parliament.wa.gov.au/parliament/commit.nsf/(Report+Lookup+by+Com+ID)/1511331A52931060482578B80007F0D5/$file/97909904.pdf
In response, Public Health Division of the Pacific Community (SPC) has been driving an initiative to develop policies and legislative provisions for tackling the key risk factors, particularly tobacco use, harmful alcohol use, and dietary risks.
The result is the “Pacific Legislative Framework”.
This remarkable document, now available in English and French, consists of three parts.
The framework begins by setting out policy for addressing a surprisingly wide range of risk factors, including core areas of tobacco control, core areas of liquor control, health promotion, protection for breastfeeding, regulation of marketing of unhealthy foods and drinks to children, reducing consumption of salt, sugar and trans-fat in the diet, and tax measures for tobacco, alcohol and unhealthy food/sugar-sweetened drinks.
The “policy” element includes overall policy objectives and recommendations for each area, as well as priority areas for reform and a brief legislative plan.
The appendices to the Framework consist of draft legislative provisions covering each of the thematic areas/risk factors.
These provisions can be implemented as off-the-shelf legislation, or adapted by National Parliaments to national circumstances.
The Pacific Legislative Framework is an impressive effort – entirely driven by Pacific Island Countries and Territories themselves, in collaboration with the Pacific Community (SPC) and the WHO Western Pacific Regional Office.
The Framework is a logical extension in a chain of initiatives, driven by Pacific Island Countries and Territories, to address the burden of NCDs.
In 2017, the Pacific Monitoring Alliance for NCD Action (Pacific MANA) was established. Pacific MANA has developed a dashboard-style accountability tool to report on progress with policies and laws to address NCDs in Pacific Island Countries and Territories.
The MANA dashboard now functions as an accountability tool for action on NCDs in the Pacific.
There is a long way to go, and gaps to be filled, including political commitment and actions to prevent conflicts of interest that undermine tobacco control policies in the Pacific. There is also an urgent need for Pacific Island Countries and Territories to grow their capacity for enforcing public health laws.
Stay-at-home orders, curfews, and mandatory quarantine have brought public health law to the public’s attention during the Covid-19 pandemic.
While public health law might be new to some, there is an entire academic discipline devoted to it, with a host of researchers and practitioners based in law schools (including dedicated health law and public health law centres), research institutes, non-profits, and health departments around the world. Public health law experts also work for global organisations such as the World Health Organisation. This is a short explainer on the discipline of public health law for anyone coming to it for the first time.
Public health law is distinct from health law, which is concerned with the law’s role in areas such as the provision of healthcare, the regulation of healthcare professionals and new medical technologies, medical negligence, and health information privacy.
The scope of public health law is much broader. Based on Lawrence Gostin’s widely cited definition, it is:
…the study of the legal powers and duties of the state to ensure the conditions for people to be healthy… and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for protection or promotion of community health.
A key focus is dedicated public health laws and their provisions on infectious disease control. These laws create the infrastructure for public health services and disease surveillance and reporting, but they also grant officials extensive powers to order the testing, treatment, vaccination, isolation, and quarantine of individuals with an infectious disease. These powers were rarely used in many countries (and may even have seemed archaic), until the Covid-19 global pandemic broke out. This is perhaps the first time that many people understood the coercive nature of public health law and saw these laws operating in practice.
There is now an extensive body of public health law research on national legal responses to Covid-19, as well on the international dimensions of the pandemic response, such as the WHO’s use of the International Health Regulations to declare Covid-19 a public health emergency of international concern (PHEIC).
Official powers on infectious disease control illustrate some of the fundamental tensions at the heart of public health law. These include the tension between protecting individual rights and freedoms and promoting collective goods. Another is between achieving public health goals and achieving other social and economic objectives. Management of Covid-19 demonstrates this, with measures such as quarantine (which limits freedom of movement and other individual rights) being used extensively in the name of public health. Stay-at-home orders also limited the spread of Covid-19 but came at the expense of people’s ability to work, and at the expense of national economic functioning.
Some might think that public health lawyers would be unquestionably in favour of such measures. But a key part of the discipline is testing when the use of government powers is justified, legitimate, and proportionate to the objectives governments are trying to achieve, and holding governments accountable for the misuse (or failure to use), their public health powers. It is crucial to critique the use of extraordinary government powers, particularly if accompanied by the suspension of usual human rights protection measures, and media freedoms.
These kinds of tensions between individual rights and collective goods also play out in relation to legal measures to prevent non-communicable diseases (NCDs) such as cardiovascular disease, diabetes, and cancer, which are now the leading cause of preventable death and illness globally. Governments have introduced a range of legal measures that address the risk factors for these diseases: some examples include restrictions on tobacco marketing, taxes on sugary drinks, and minimum floor prices for alcoholic drinks. Laws on NCD risk factors – particularly diet – are sometimes presented as the new, ‘fringe’ dimension of public health law, but measures such as sugary drinks taxes have been used (effectively) by governments around in the world.
There is a perception that the law shouldn’t be used to address these kinds of issues because they lack the fundamental justification found in infectious disease control measures: NCDs are by their nature non-infectious, and the development of a chronic illness is one person doesn’t pose a risk of transmission to others. Yet we accept a degree of government paternalism in many areas of public risk and safety (think of laws requiring seatbelt use, for example). This argument also ignores the huge costs these diseases impose on societies, economies, and healthcare systems, and would remove one of the most effective tools for preventing NCDs from governments’ toolboxes.
The discipline of public health law also acknowledges the critical health impact of laws outside the field of public health. Modern public health understands the determinants of health and illness as a set of interacting causes that operate at the individual level (genes, biology, and health behaviours), and encompass the conditions in which people live and work, their access to resources such as housing, education, and income, and the broader structural, economic, and cultural dimensions of our societies. Law itself can be seen as one of these broad, ‘social determinants‘ of health.
Addressing the social determinants of health requires changes to a wide range of laws and policies, including those on employment, housing, and social welfare. So, for example, organisations such as ChangeLab Solutions (a US public health law non-profit) have developed guidance on how urban planning laws can be designed to promote healthy and equitable communities. Social welfare laws in Australia have been analysed for their impact on the diets of people in lower income groups. As almost anything can be framed as a public health issue, so this brings to into question the legitimate scope of public health law, which can become the study of life, the universe, and everything.
As well as being interested in how law can address different illnesses and their causes, public health lawyers are concerned with the nature of ‘law’ and categorising the different powers available to governments to improve public health. In a foundational model, Lawrence Gostin describes these as the power to: tax and spend; alter the information environment; design and alter the physical environment; intervene in the economic system by addressing socio-economic disparities; directly regulate businesses, people, and professionals; and to deregulate when law and regulation is an impediment to public health. Clearly law is not just a prohibition on a particular form of activity or behaviour but is a mechanism to shape social norms, economic markets, and physical and informational environments.
The discipline of public health law understands that often there is not just one law operating in isolation, but that attention needs to be paid to supporting regulations and codes of practice (or in the case of international treaties, documents such as interpretive comments), as well as any case law interpreting statutory provisions. In some areas, the main source of law may be case law (or statute law), depending on jurisdiction. Understanding the interactions different legislative and regulatory instruments, and between legislation and case law, is a key skill that lawyers bring to the field of public health.
Lawyers also bring to the study of public health an understanding of the fundamental principles of the legal system (which obviously differ according to jurisdiction), including the division of powers between federal, state, and local governments, and how the powers and functions of each level of government are determined by legislative and constitutional frameworks. For example, the issue of pre-emption is critical in the US, where there is growing concern about state governments enacting new laws to limit the ability of public health officials and local government to introduce Covid-19 control measures.
Forms of regulation or governance developed by non-government actors are also increasingly important to public health, particularly in addressing obesity and diet-related health, which has seen the rise of industry self-regulation and collaborative partnerships with ‘Big Food’ in areas such as regulating junk food marketing to children. Public health law draws attention to the wide range of ‘soft’, collaborative, or voluntary forms of regulation developed by, or involving, businesses, trade industry bodies and NGOs. Some of these forms of ‘private regulation’ are just as complex and detailed as laws developed by governments. Public health law researchers pay close attention to the terms and conditions, implementation, and enforcement of these initiatives, as these are key factors which ultimately determine their impact on public health outcomes.
Lawyers have other specialised skills that we apply in public health law research. These include an understanding of the conventions and rules that should be followed in interpreting a legal document, and the ability to systematically identify, synthesize and analyse case law and legislation. This forms one important component of public health law research: ‘policy surveillance’, which can be used to create large databases of legal instruments that are a powerful tool for analysing law’s effect on health. Lawyers can also draft legislation and other legal documents relevant to public health.
But public health law research goes far beyond doctrinal analysis. As with other areas of legal research, it draws on a wide range of qualitative and quantitative methodologies, including health impact assessments, surveys, interviews and focus groups. It also uses theories from a variety of disciplines including epidemiology, law, sociology, political science, and psychology.
Public health law research is not simply the study of ‘law in books,’ though. Researchers analyse the implementation of laws, their enforcement, their impact on features of the physical environment relevant to health (think smoke-free laws), on people’s health-related behaviours, and on broader population health and equity outcomes. Researchers are interested in, for example, how laws on wearing seat belts or bicycle helmets are disproportionately enforced against homeless people or People of Colour. Consider too the argument that Covid-19 stay-at-home orders were used disproportionately against lower-income, diverse suburbs in Western Sydney, as compared to higher-income, majority white populations in Sydney’s Eastern suburbs. Finally, public health law research is concerned with the unintended health impacts of laws that are not targeting health, as with the effect of laws criminalizing drug use on illicit drug users’ risk of contracting HIV.
Since the outbreak of Covid-19, there has been commentary, discussion, and analysis of public health law from people with a range of different professional backgrounds. That’s great: these laws should be poked and prodded from different angles. But don’t forget: there’s an entire discipline of legal researchers who have spent their careers investigating the role of law in creating the conditions for people to live healthy, fulfilling lives.
The National Agreement on Closing the Gap is an ambitious all-of-government framework for improving the health and welfare of Australia’s first nations peoples.
This post briefly reviews the Agreement and considers its significance as an example of health governance reform.
Health and “governance reform”
A great deal of public health law is outward looking: it regulates the “world out there”, whether it be harmful products, the businesses that sell them, occupiers, premises, professionals, or the population generally. Equally important, however, are the actions taken by governments to structure their own functions and activities effectively.
At other times, health governance initiatives may consist of new organisational structures, “frameworks”, and agreements – including inter-governmental agreements.
This is an agreement between the Council of Australian Governments or COAG (comprising the Commonwealth, States, Territories and the Australian Local Government Association) and the Coalition of Aboriginal and Torres Strait Islander Peak Organisations (“Coalition of Peaks”).
The “Coalition of Peaks” convenes over 50 community-controlled Aboriginal and Torres Strait Islander peak and member organisations in every state and territory.
While not intended to be legally enforceable, the Closing the Gap Agreement is our best hope yet of addressing the appalling disparities that persist between the health and socio-economic circumstances of indigenous and non-indigenous Australians.
COAG no more
The National Agreement on Closing the Gap was made between the Council of Australian Governments (COAG) and the Coalition of Peaks.
However, on 29 May 2020, COAG was replaced by the National Cabinet, a new inter-governmental forum that now excludes local government: see here, here and here.
[National Cabinet has also established National Cabinet Reform Committees in five areas, although at the time of writing there is little publicly available information. These committees include the Health Ministers’ Meeting Forum (formerly the Health Council), which is supported by the Health Chief Executives Forum, formerly the Australian Health Ministers Advisory Council (AHMAC).]
In addition to the National Cabinet, another inter-governmental structure is the National Federation Reform Council. Meeting annually, the Council convenes the Prime Minister, Premiers and Chief Ministers, Treasures and the Australian Local Government Association: see here and here. See these links for summaries of 2020 and 2021 meetings.
The National Federation Reform Council has established several NFRC Taskforces to address inter-governmental priority areas falling outside the job creation focus of National Cabinet, including the Women’s Safety Taskforce, and the Indigenous Affairs Taskforce.
6 This Agreement also stems from the belief that when Aboriginal and Torres Strait Islander people have a genuine say in the design and delivery of services that affect them, better life outcomes are achieved. It recognises that structural change in the way Governments work with Aboriginal and Torres Strait Islander people is needed to close the gap.
7 In response, all Australian Governments are now sharing decision-making with Aboriginal and Torres Strait Islander people represented by their community-controlled peak organisations on Closing the Gap, the Coalition of Aboriginal and Torres Strait Islander Peak Organisations (Coalition of Peaks). This is an unprecedented shift in the way governments work, by encompassing shared decision-making on the design, implementation, monitoring and evaluation of policies and programs to improve life outcomes for Aboriginal and Torres Strait Islander people.
In addition to embedding formal partnerships and shared decision-making, the National Agreement on Closing the Gap set out a number of additional priority reforms (see para 6):
to strengthen the Aboriginal and Torres Strait Islander community-controlled sector to deliver services to support closing the gap;
to transform mainstream government organisations “to improve accountability and respond to the needs of Aboriginal and Torres Strait Islander people”; and
to improve access to data for the purposes of monitoring progress in closing the gap.
The Agreement sets out targets for the priority reforms mentioned above, as well as socio-economic outcomes and targets; the latter are discussed further below.
Parties to the Closing the Gap Agreement committed to agreeing to “partnership actions” throughout the life of the Agreement, which would be implemented by all Parties in order to ensure “joined up national action on the Priority Reforms“.
The Agreement provided for the development of implementation plans by the Commonwealth, States and Territories, Australian Local Government Association, and Coalition of Peaks. Jurisdictional Implementation Plans must be “whole-of-government plans, covering government agencies and statutory bodies“, developed and implemented in partnership with other governments, the Coalition of Peaks, and other Aboriginal and Torres Strait Islander partners.
Public accountability: The National Agreement on Closing the Gap called for annual, public reports by each Party, with progress monitored by the Joint Council (see below), a comprehensive review of progress every three years by the Productivity Commission (and a further Independent Aboriginal and Torres Strait Islander led review within 12 months of the Productivity Commission’s review).
Co-chaired by the Commonwealth Minister for Indigenous Australians (the Hon. Ken Wyatt AM MP), and the Lead Convenor of the Coalition of Peaks (Ms Pat Turner AM), the Joint Council embodies the promise of shared decision-making and accountability.
The Joint Council convenes one Minister with responsibility for Closing the Gap from the Commonwealth, States, Territories and one representative from the Local Government Association, together with twelve representatives from the Coalition of Peaks.
National Federation Reform Council – Indigenous Affairs Taskforce
The Indigenous Affairs Taskforce formed under the new National Federation Reform Council (referred to above) does not displace the governance arrangements to which governments have committed under the Closing the Gap Agreement. The Taskforce convenes the Commonwealth, State and Territory ministers with responsibility for indigenous affairs. Meeting twice a year, and involving government members of the Joint Council on Closing the Gap, the Taskforce will consider issues referred to it by the Joint Council, and other policy issues requiring “in-depth focus, collaboration and agreement from the Federation“.
7618_Rural_Health_Orange_Dubbo. School of Rural Health, students, Medicine.
Closing the Gap Targets
The National Agreement on Closing the Gap is supported by outcome measures, and targets.
The targets provide an important accountability mechanism for measuring performance and if realised, will transform the lives and opportunities available to Aboriginal and Torres Strait Islander people. For example:
Target 1: Close the gap in life expectancy within a generation, by 2031.
The Australian Institute of Health and Welfare reports that for Aboriginal and Torres Strait Islander people born in 2015-17, life expectancy is 71.6 years for males and 75.6 years for females: that’s 8.6 years lower than for non-Indigenous Australian males (80.2 years), and 7.8 years lower than for non-Indigenous Australian females (83.4 years).
Other health-related and socio-economic targets relate to healthy birthweight (Target 2), early-childhood development (Target 4), completion of tertiary education (Target 6), and appropriately sized (not overcrowded) housing (Target 9).
There are targets for reducing the rate of Aboriginal and Torres Strait Islander young people in detention (Target 11), the rate of Aboriginal and Torres Strait Islander children in out-of-home care (child protection) (Target 12), and the rate of violence against Aboriginal and Torres Straight Islander women and children (Target 13). Target 14 calls for “significant and sustained reduction in suicide of Aboriginal and Torres Strait Islander people towards zero“.
These targets depend on and are supported by targets to strengthen Aboriginal and Torres Strait Islander cultures and languages, relationships with land and waters as well as “equal levels of digital inclusion”.
The Closing the Gap framework, described above, illustrates institutional structures and arrangements for working across all levels of government, across ministries and sectors (all-of-government), and in particular with Aboriginal and Torres Strait Islander peoples and organisations, through the Coalition of Peaks.
State institutional reforms
Understood against the background of the inter-governmental governance arrangements that make up the Closing the Gap framework, the decision by NSW Premier Dominic Perrottet to embed Closing the Gap actions across his entire cabinet makes perfect sense.
But it’s worth keeping an eye out for further institutional changes, such as the appointment of Aboriginal and Torres Strait Islander Children’s Commissioners, to complement the Children’s Commissioners at State and Federal level.
The World Health Assembly (WHA) has established an intergovernmental negotiating body to “draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response”.
The proposed pandemic instrument will almost certainly materialise too late to mitigate the impact of the global Covid-19 pandemic.
There is plenty of irony in the fact that while the European Union has led the push for a legally binding pandemic convention (see here and here), the EU continues to resist the proposal for a waiver of intellectual property rights under the World Trade Organisation’s TRIPS convention – in order to accelerate access to Covid vaccines and other technologies.
(See the TRIPS and Covid-19 waiver proposal here, and the EU’s counter-proposal here).
What do we know so far about the proposed pandemic instrument?
The World Health Assembly has opted for a World Health Organisation instrument, rather than a treaty negotiated under the broader, United Nations system, such as the UN Framework Convention on Climate Change.
There has been some drift in the governance of global health issues away from WHO in recent years to the broader UN system. This is illustrated by the High-level meetings of the UN General Assembly on non-communicable diseases (2011, 2014, 2018, 2025), the health agenda embodied within the Sustainable Development Goals, and many other instruments, strategies and processes. Of course, as the specialised health agency of the UN, the WHO remains centrally involved in helping to coordinate the response to many global health challenges.
The point, however, is that a multi-sectoral, all-of-government response is crucial if governments want to effectively tackle many of the world’s leading health challenges, from tobacco control to pandemics.
The envisaged pandemic instrument, however, will be a WHO instrument, overseen by a body that convenes the world’s health ministers, rather than heads of state. Implementation will be everything.
What kind of instrument?
Under the WHO Constitution, the World Health Assembly has authority to adopt conventions (Article 19), adopt Regulations (Article 21), or make recommendations (Article 23).
For the moment, all of these options are on the table.
The negotiating body will meet by 1 March 2022 in order to elect two co-chairs and four vice-chairs, who are required to develop a process to “identify the substantive elements of the instrument” and to begin the development of a working draft.
This draft must then be presented to the intergovernmental negotiating body at its second meeting in August 2022 – by which time it is intended that the negotiating body will identify the constitutional basis for the new instrument: whether a convention, or regulations, or recommendations.
Timeline
The intergovernmental negotiating body has been given a three-and-a-half-year timeline. It must present the outcomes of its deliberations to the World Health Assembly in May 2024 (WHA77), with a progress report to the WHA in 2023 (WHA76).
Relationship with the International Health Regulations
Legally-binding international instruments are rare in global health. Non-binding normative instruments (so-called “soft law”), are far more common: see discussion here.
Another binding instrument is the International Health Regulations (IHR) which (amongst many other things) impose obligations on WHO Member States to report and respond to events that constitute “public health emergencies of international concern”.
The IHR were revised and updated in 2003 following the SARS outbreak.
The limitations of the IHR, compliance problems, and lack of progress in implementation, have been investigated by many committees and expert bodies (see eg here, and here).
It’s safe to say that the failure of the IHR to effectively prevent and manage the Covid-19 pandemic, which has so far claimed nearly 5.6 million deaths, remains a driving force behind the WHA decision. What better illustration of the need for effective global governance of pandemics than Covid-19?
That doesn’t mean that any new pandemic instrument will replace or supplant the IHR. Far from it. The WHA decision calls for “coherence and complementarity” between the process of developing a new pandemic instrument and the work of the “Member States Working Group on Strengthening WHO Preparedness and Response to Health Emergencies” (a group established at the World Health Assembly in May 2021) “particularly with regard to implementation and strengthening of the IHR” (see para 1(4) here).
On 9 December, the Parsons Centre for Law & Business, together with Corrs Chambers Westgarth, convened a seminar entitled Vaccine mandates and public health orders: legal and ethical issues for business.
The seminar reviews the emergence of vaccine mandates in public health orders in NSW, and vaccine mandates imposed by businesses and other organisations from a public health law, employment law, tort law, and corporate governance perspective.
The webinar features academics from Sydney Law School and Corrs. The video can be accessed here.
In 2020 and 2021, there were significant developments in the courts’ role in treatment for childhood gender dysphoria. The UK case ofBell v Tavistockis well known, but Re Imogenis of more practical importance here in Australia. Both cases illustrate the changing role of the courts in treatment for childhood gender dysphoria, following developments in our understanding of gender dysphoria and its treatment. They also engage key principles coming out of Gillickv West Norfolk and Wisbech Area Health Authority, where, in a legal turning point, the House of Lords held that a minor can consent to their own treatment when they achieve “a sufficient understanding and intelligence to enable him or her to understand fully what is proposed.”
When a child is not “Gillick competent”, generally speaking, their parents can consent to treatment on their behalf. The Australian courts have created an exception, however, for forms of “special medical treatment” that must be authorised by the courts.
The Family Court has previously held that both “stage one” (puberty blockers) and “stage two” (cross-sex hormones) of (medical) treatment for childhood gender dysphoria were forms of special treatment that required court authorisation. But it has gradually relaxed this stance, deciding in 2013 (in Re Jamie) that stage one could be consented to parents, and in 2017 (in Re Kelvin) that court authorisation was no longer required for stage two. However, court authorisation was still required where there was a dispute or genuine controversy about whether the treatment should be administered.
Re Imogen concerned this last point coming out of Re Kelvin. Key to the case was that Imogen’s parents disagreed on whether she should receive treatment, with her mother disputing Imogen’s diagnosis of gender dysphoria, as well as her competency. Justice Watts in the Family Court held that if a parent or medical practitioner dispute (i) the competence of an adolescent; (ii) a diagnosis of gender dysphoria or (iii) the proposed treatment, an application to the Family Court is mandatory.
A controversial point is that Justice Watts held that even if the child was competent to consent to treatment themselves, if there is a dispute about diagnosis or treatment, the court must still decide the diagnosis and whether treatment is in the young person’s best interests.
Justice Watts also held that under existing Australian law, a medical practitioner treating a minor was unable to commence any stage of treatment without first obtaining the consent of both parents to treatment, and if there was any dispute, court authorisation was required. To the extent that guidelines on the Australian Standard for treatment stated that parental consent was not required in relation to a competent minor (although it was desirable), they were incorrect.
Academics Stephanie Jowett and Fiona Kelly criticiseRe Imogen both for its practical implications for healthcare professionals and transgender young people and their families, and on the basis of legal principle.
Assuming an adult is competent, they are free to make whatever healthcare decision they choose (within the scope of healthcare options that are available to them – clinicians are not obliged to provide futile treatment), even if it is harmful to their health or could lead to their death. But Jowett and Kelly point out that the courts are reluctant to leave Gillick competent minors to make healthcare decisions for themselves, where that decision could have significant implications for their health.
Re Imogen illustrates this point in relation to treatment for childhood gender dysphoria: if a young person is Gillick competent, why does the court then have to decide on their diagnosis or treatment if there is a dispute between their parents on these issues? If the young person has achieved competency, why can’t they make the decision themselves?
There may be good reasons to accept some degree of court oversight and paternalism in relation to competent minors, but the circumstances in which court intervention is required (and whether alternative dispute resolution processes could be made available) should be considered carefully.
Re Imogen requires healthcare professionals to seek consent from both parents prior to treatment, and Jowett and Kelly point out that this means an unsupportive parent could trigger court intervention by challenging the diagnosis, the proposed treatment, or both. This is the case even if a parent is absent from their child’s life or has a problematic relationship with the child. The judgment also places a significant administrative burden on healthcare professionals to obtain the consent of both parents prior to treatment, or (where consent cannot be obtained) to support transgender young people to obtain court authorization through lengthy and expensive court proceedings. This could result in significant (perhaps prohibitive) costs to families, as well as delays in treatment during a critical window for intervention.
The UK High Court’s 2020 decision in Bell v Tavistock represented an increase in court intervention in treatment for childhood gender dysphoria, but the decision has since been overturned by the UK Court of Appeal.
Two claimants sought a declaration that the UK Gender Identity Development Service had acted unlawfully in prescribing puberty blockers to children under the age of 18. The UK High Court did not find the practice unlawful but made a declaration that a child would have to understand the implications of both stage one and stage two treatment to achieve Gillick competence.
The Court also provided guidance that it was “highly unlikely” that a child aged under 13 could be competent to their own treatment, and “very doubtful” that children aged 14 or 15 could be competent. It may be appropriate for court authorisation to be sought for children aged 16-17, although a statutory presumption of competency takes effect at 16 in the UK. This guidance was understood by clinicians as requiring court authorisation for treatment of any child for gender dysphoria.
The Court made findings about the nature of treatment for childhood gender dysphoria that were fundamental to its guidance on whether minors could be competent to consent. The court characterised treatment as perhaps “unique” and “experimental” due to uncertainty over its short- and long-term impacts. It also has life-long and life changing consequences, going to the heart of individual identity.
The Court rejected the idea of stage 1 treatment as a neutral “pause” that gave children time to mature and consider their options (some Australian commentators have expressed a similar opinion), and that stage 1 and 2 of treatment were entirely separate. Instead, it conceptualised the two stages as one clinical pathway, and so to achieve competence, a child would need to understand not just the implications of taking puberty blockers, but also those of progressing to cross-sex hormones, including that: the majority of patients taking puberty blockers go on to take cross-sex hormones; cross-sex hormones may lead to a loss of fertility; and may negatively impact on sexual function. There would be obvious difficulties for younger children in understanding these kinds of ideas, and therefore no age-appropriate way of explaining them.
Following the judgment, the Court’s characterisation of treatment was disputed by professional bodies involved in treating transgender young people in the UK. Bell v Tavistock was not binding on Australian healthcare professionals, but it appears that some Australian service providers reconsidered their approach to obtaining consent to treatment for childhood gender dysphoria following this decision, in conjunction with Re Imogen. The idea of stage 1 and 2 of treatment as inexorably linked also appears contrary to the approach of the Australian Family Court, which has tended to treat the two stages as distinct since Re Jamie.
Bell v Tavistock was appealed in 2021, and the UK Court of Appeal held that (among other things) the factual findings made on the nature of treatment were not open to the High Court to make (based on the nature of the Court’s jurisdiction when undertaking judicial review), and that the declaration made by the Court was contrary to Gillick.
This was because the High Court’s declaration provided a list of factual circumstances that had to be evaluated in determining whether a child was competent to consent to medical treatment (related to whether the child could understand the implications of stage two treatment). This would essentially mean that healthcare professionals would be substituting the judgment of the court for their own clinical judgment when determining a child’s competency. Yet, said the Court of Appeal, the ratio of Gillick was “that it was for doctors and not judges to decide on the capacity of a person under 16 to consent to medical treatment.” [76]
The UK Court of Appeal also held that the High Court should not have issued guidance on the age at which children could consent to treatment, as it was not able to generalize about children’s competency to consent at different ages. Further, the guidance required court applications in circumstances where the High Court itself recognised there was no legal requirement to do so. The Court of Appeal recognised that this would have the effect of denying treatment for young people who lacked the resources to make such an application, and that the requirement for court authorisation where the child, parents, and clinicians all agreed on treatment would be inconsistent with previous UK authority.
The most recent decision in Bell v Tavistock will come as a relief for transgender young people, their families, and clinicians, as it removes the requirement for (expensive and time consuming) court intervention when all parties involved agree on treatment. Some role for the courts in disputes over the treatment of competent minors may be justified. However, continuing changes in the law on treatment for childhood gender dysphoria can only create stress and uncertainty for transgender young people, their families, and the clinicians treating them.
I’m disappointed in Queensland’s Parliament, not for passing assisted dying legislation, but for consciously trampling over the religious beliefs of Catholic and other religious healthcare organisations.
Catholic hospitals are right to be aggrieved. It’s entirely predictable that church institutions are now considering civil disobedience. (See “Catholic Hospitals’ Revolt on Euthanasia” Weekend Australian 21-22 August 2021, p 4. See also here).
I mean, if you genuinely believe that intentional killing is wrong, you don’t just help it along because a bunch of politicians told you to, do you?
Catholic moral beliefs preclude intentional killing, yet Queensland’s law will force Catholic hospitals to open their doors and to facilitate actions to end the lives of patients in their care, on their premises, by non-credentialed doctors who do not share their moral values.
(I call this the “Dombrink thesis”, after American scholar Professor John Dombrink, who demonstrated the resilience of libertarianism, through – and despite – America’s culture wars. See here, here, and here.)
Recent assisted dying laws follow on the heels of two decades of reform that have greatly liberalised abortion laws in every State and Territory; see eg here, here, and here.
But if personal autonomy means anything, it ought to extend to those who, despite these changes, have a sincere, morally-grounded opposition to killing and assisted suicide.
In my view, co-opting religious health care organisations to facilitate euthanasia is a step too far.
For further detail on what Queensland’s new law will force religious health care facilities to do, see below.
Sharing the love? The importance of singing in church in the middle of a pandemic
Let’s be clear: not all complaints of discrimination or oppression, by churches, in Australia’s largely tolerant democracy, are worthy.
For example, in a Facebook post on 2 July, Pastor Brian Houston of Hillsong fame dismissed Covid delta outbreak restrictions that prohibited singing in church as “religious discrimination…so archaic it’s hard to believe”.
Judging by their responses, some of Houston’s followers are primed for persecution and reluctant to see themselves as beholden to earthly laws (that is, emergency public health orders).
On 16 June 2021, an outbreak of the insanely infectious delta variant of the Covid virus began in New South Wales. Daily cases are currently averaging over 1200; see here.
On 20 June, masks became mandatory in “places of public worship, being used for public worship or religious services”, in 7 local government areas.
On 23 June, singing in non-residential premises – including places of worship – was banned. However, a number of exceptions applied, including singing in a performance or rehearsal, singing in educational institutions, singing for the purposes of instruction in singing, or if “the premises are a place of public worship, and the persons singing are members of a choir”.
On 26 June, the exception for choirs was eliminated.
The intent of the restrictions, NSW Health advised, was to prevent transmission between, for example, a singing pastor, and people providing technical assistance during the livestream, given previous evidence of tansmission via singing in a place of worship.
NSW Liberal MP Tanya Davies raised Houston’s concern with Premier Gladys Berejiklian and Health Minister Brad Hazzard. Hazzard granted an exemption on 3 July, with specified safeguards: see here.
I suspect that quiet diplomacy by Houston would have been equally effective, if the need for religious leaders to sing directly to camera outweighed the importance of protecting others present in the venue from the risk of acquiring the highly infectious delta variant.
“It’s time people stopped seeing everything as an attack or discrimination. Seriously we are in a pandemic. Christian leaders should be setting a good example”.
Moral arm-twisting in Queensland’s voluntary assisted dying legislation
While some complaints of discrimination by religious leaders are over-blown, I would put Part 6 of Queensland’s Voluntary Assisted Dying Act in a different category.
The new Act respects the right of a health practitioner not to provide information about voluntary assisted dying, nor to participate in the assessment process for lawful access to assisted dying that the legislation makes available (s 84).
However, Part 6 co-opts health practitioners and forces them to facilitate that assessment process, irrespective of their personal beliefs about the ethics of killing.
Let’s count the ways.
Firstly, a health practitioner with a conscientious objection must either refer a patient requesting information on assisted dying to an officially approved “navigator service” for assisted dying, or to a health practitioner who is known not to have moral scruples about assisted dying and may be willing to assist (s 84(2)).
Secondly, a “relevant entity” (meaning a health care establishment such as a hospital, hospice or nursing home) must not hinder a person’s access to information about assisted dying.
In order not to do so, the health facility must provide entry to a registered health practitioner, or member or employee of an approved navigator service in order to “provide the requested information to the person about voluntary assisted dying” (ss 90, 156).
Thirdly, the new Act requires a health care facility operated by a church or religious organisation to provide access to an (external) medical practitioner who is willing to act as the patient’s “coordinating medical practitioner” for the purposes of facilitating assessment and taking the various actions required by the legislation in response to the patient’s first, second and final requests for assistance to die (ss 9, 92-93).
If the medical practitioner requested by the patient is unable to attend, the religious health care organisation must facilitate the transfer of the patient to and from a place where the patient can formally request assistance from a medical practitioner who is willing to act as the coordinating medical practitioner (ss 9, 92(3); 93(3)).
Fourthly, the religious health care facility must facilitate the coordinating medical practitioner (or their delegate) to carry out a “first assessment” of the patient’s eligibility for dying assistance under the Act, either by permitting this to occur within the facility, or by facilitating transfer of the person to and from a place where the assessment can take place (ss 9, 19, 94).
The same obligations apply to the second, independent “consulting assessment” that occurs if the coordinating medical practitioner concludes from the first assessment that the patient is eligible for voluntary assisted dying (ss 9-10, 30, 95).
After making a third and final request, and undergoing a final review, an eligible patient may decide to self-administer a voluntary assisted dying drug or, if advised that this is inappropriate, may choose to have the drug administered by the coordinating practitioner (ss 50, 56).
This step triggers a number of authorisations, including the right to prescribe, supply, possess and self-administer, or administer the drug overdose to the patient (ss 52-53).
Again, the legislation requires a religious health care facility to provide access to the coordinating practitioner so that the patient can choose how the drug will be delivered – whether within the facility, or by assisting transfer and travel to a place outside the facility where these decisions can be made (s 96).
The facility must then provide access to the administering practitioner and witnesses to enable assisted dying to take place on the premises, and must not hinder self-administration if the patient has made a self-administration decision (s 97).
These statutory requirements honour the voluntary assisted dying principle that “a person should be supported in making informed decisions about end of life choices” (s 5(f)), and that “access to voluntary assisted dying…should be available regardless of where a person lives in Queensland” (s 5(e)).
Another principle recognised in the legislation is that “a person’s freedom of thought, conscience, religion and belief and enjoyment of their culture should be respected” (s 5(h)).
However, by forcing religious health care facilities to cooperate in processes whose central aim is intentional killing, (I am not here debating the rigour of safeguards) the legislation tramples over well-known and defended moral values that lie at the heart of professional, competent, yet religiously-informed health care.
The bottom line
Like abortion, assisted dying is one of the enduring ethical fault lines in medicine.
Politicians can’t legislate it away.
Part 6 of Queensland’s Act seems hell-bent on making victims of doctors and religious organisations that have long-standing, deeply felt moral objections to intentional killing.
There ought to be room in Australia’s liberal democracy for religious hospitals and hospices to offer their services, including high-quality palliative care, in accordance with long-standing ethical values, without putting euthanasia on the menu.
Patients who request assessment for assisted dying should be transferred to a facility where such actions do not offend long-standing institutional values, as provided in South Australia’s legislation, which recognises a right of conscientious objection for hospitals and other health care establishments (see s 11, although this does not extend to nursing homes).
Australia’s COVIDSafe app was launched by the Australian Government in April 2020. The app uses Bluetooth technology to record “contact events” or “digital handshakes” between app users, which are stored on users’ phones for 21 days. Contact events include the encrypted ID of the other contact user, the Bluetooth signal strength during the event, and its duration and time (but not location data). If a user tests positive, this information is uploaded to the National COVIDSafe Data Store (a cloud-based data repository supported by Amazon Web Services and administered by the Digital Transformation Agency), where it can be decrypted for use by state contact tracers.
The app has been hampered by concerns about its security, privacy, and effectiveness. Amendments to the federal Privacy Act (1987) created a legislative framework for protecting the privacy of app data and preventing ‘function creep’, i.e., the risk of data being used for purposes other than contact tracing, such as law enforcement. This framework follows the same format as other privacy laws in Australia (such as legislation that applies to the MyHealth Record System), setting out a series of permitted uses, collections, and disclosures of app data related to contact tracing and maintaining the data store and the app. All other collections, uses, or discloses are prohibited, as is uploading app data from a user’s device to the data store without their consent, retaining or disclosing data to someone outside Australia (unless for contact tracing purposes), and decrypting app data on a user’s device.
Crucially, the legislation protects voluntary use, for example, by making it an offence to require someone to download or use the app, or to refuse to provide them with goods or services because they’re not using it. The legislation also creates a mechanism for dismantling the system when it is no longer needed, and for deleting the information contained in the data store.
The basic legislative privacy protections on the app are sound, although commentators have identified some ways in which they could be strengthened, for example, by providing for the periodic removal of contact event data from the data store.
Where the system really falls down is in the design and operation of the app itself. This invokes the concept of privacy by design, i.e., building privacy protections into the physical design, architecture, and computer code of the device or system concerned. Privacy in the digital realm can be protected through multiple channels, including contractual mechanisms, legislation, and design-based solutions. The physical design of the system or device is at least as important – if not more so – than any legal frameworks that apply. This is often referred to as “code” or “architecture”-based regulation, and it’s interesting to consider whether or how the privacy and transparency concerns raised below could also be addressed through legislation.
Privacy advocates and tech experts have extensively canvassed the security and privacy flaws in the app, as well as technical problems that prevent it from operating effectively. This report, by a group of software developer and cybersecurity experts, provides a comprehensive and readable summary. Some of the early bugs included “phone model and name being constantly exposed and unique identifiers being available to track over time… undetectable, permanent long-term tracking of iOS and Android devices and attackers being able to control devices remotely” (p.7). The authors point out that many of the app’s technical challenges stem from the use of Bluetooth for a function it wasn’t originally intended for, i.e., continually and indefinitely scanning the environment for other devices, and then making connections with them.
They also say that some of the technical issues with the app resulted from a lack of consultation with tech experts (and the wider community) during its development, as well as a lack of testing and verification.
Also concerning has been the DTA’s slow response to concerns raised by the tech community once the app was launched, as well as limited transparency in the scheme’s operation. This includes the DTA’s failure to release the number of active users, and the Government’s reluctance to release the full version of an independent report on the app’s operation, which found that the app imposed significant time costs on contact tracers for no little additional benefit. Some of this information was omitted in a shorter version of the report originally made publicly available.
The Government has taken steps to address some of the bugs in the app, including through the adoption of the “Herald” protocol in December 2020, although the authors of the report mentioned above say this protocol still has problems, and in fact reintroduced some issues that had been fixed previously. They call for the Government to adopt the Exposure Notification Framework developed by Apple and Google, which doesn’t create the same privacy and security challenges as the Covidsafe app.
There have also been developments in the responsiveness and transparency of the scheme. For example, the DTA has identified a contact point for security concerns, and in April 2020, it made publicly available the full source code for the app, which is hosted on a Github repository. But, according to researcher Emma Blomkamp, the early lack of community engagement was a missed opportunity to build public acceptability of the app or a ‘social licence to operate’ (particularly among Australia’s diverse communities) and to inform the public about the app’s operation and the privacy protections that would apply.
Trust in government is crucial to an effective response to the COVID-19 pandemic. By now, we all know that governments possess highly coercive powers for responding to public health emergencies. But to a significant extent, governments must rely on people voluntarily doing the right thing, including downloading the Covidsafe app and sharing their personal information with contact tracers. That’s much more likely to happen when people trust the government, and that trust is much more likely when there’s a transparent and accountable system in place, combined with rigorous privacy protections, both “code” and law based.
This is an area where a fast rollout shouldn’t have come at the expense of a responsive, transparent, or accountable one.
These three appointments have tipped the balance of the Supreme Court strongly in favour of conservatives. The impact of a more conservative court in coming decades may be President Trump’s most enduring legacy. It is also likely to have a significant impact on American health law.
Roman Catholic Diocese of Brooklyn v Cuomo, discussed in this post, provides an early example of the impact of the Trump appointments within the field of pandemic preparedness and control.
In Cuomo, the Supreme Court considered what is called the “Free Exercise Clause” of the First Amendment, which provides that “Congress shall make no law…prohibiting the free exercise [of religion]”.
Constitutional human rights protections…and health
In many cases, human rights guarantees strengthen the protection of public health.
Take, for example, free speech. A free and fearless media is enormously important for its role in demanding government accountability. In authoritarian regimes and one party states, where genuinely free and fair elections only happen elsewhere, the lack of a free media, and the lack of media diversity mean that the government’s performance in addressing health risks rarely becomes the subject of public scrutiny or critique.
This diminishes accountability. (Yet it’s precisely this idea that the government is accountable to the people that is absent in authoritarian societies).
Freedom of speech and a free media also enable the sharing of information (fact, evidence) and opinion between citizens. This enables people to be informed, and it facilitates debate. It enables people to make their own informed choices, including during elections.
However, it’s not always the case that where the constitution guarantees human rights, that the vindication of these rights will advance the health of the population.
The protection of human rights, and health, are frequently, but in my view not always aligned (whatever the health and human rights school may assert).
This is partly because health is only one of a variety of values that are typically given constitutional protection. Other values include, as noted, freedom of speech, and freedom of religion.
It’s also partly because – in countries that guarantee human rights in their constitutions – the interpretation of the scope of the constitutional guarantee is a matter for the courts.
In countries where the courts are frequently called on to adjudicate on sensitive political matters, the appointment of justices to the highest appellate courts can become politicised.
This does not mean that Australia is not a liberal democracy; what it means is that the balancing of human rights considerations is ultimately a matter for Parliaments – and our democratically elected representatives – rather than for the courts.
New York State’s microcluster Covid strategy
New York State Governor Andrew Cuomo was well known for his daily briefings during mid 2020 as New York City bore the early brunt on Covid-19 infections in the United States. On 6 October 2020, Governor Cuomo signed Executive Order 202.68.
This order stated that the Health Department shall determine areas of the State that by virtue of being designated as red, orange or yellow zones, shall be subject to enhanced public health restrictions based on “cluster-based cases of Covid-19”.
In simple terms, yellow, orange and red zones were areas of the state where Covid-19 cases were rising. A red zone was an area where the 7-day rolling positivity rate was above 4% for 10 days, and red zone restrictions were intended to prevent spread from a specific area.
A yellow zone was a warning zone where the 7-day rolling positivity rate was above 3% for 10 days.
In other words, places of worship in red zones were restricted to 10 people, and places of worship in orange zones were restricted to 25 people.
In Australia, at the height of the initial lock-down period in New South Wales (around April 2020), places of worship were closed entirely, with limited exceptions.
I am not aware that this ever led to litigation.
[Covid-related restrictions on freedom of expression and movement, on the other hand, were another story, particularly when it came to the right to participate in demonstrations, including those in support of indigenous rights and the black lives matter movement. See, for example, here, here, here and here].
At the time of writing (July 2021), New South Wales has been returned to hard lockdown in an effort to eliminate community outbreaks of the delta variant.
Self-evidently, these restrictions neither denigrate religion nor deny its importance in people’s lives. There are many religions in Australia, many people of faith. These restrictions are temporary, as the chronological record of executive orders illustrates, as Australian State governments have clamped down hard on outbreaks, and then opened up again.
You’ll find the full list of Covid-related public health orders, applicable to NSW, here.
Religion comes first
Coming right in the middle of the Jewish holiday of Sukkot (also known as the Feast of Tabernacles), Orthodox Jewish groups saw Governor Cuomo’s Executive Order as religious discrimination.
An orthodox organisation, Agudath Israel of America, and the Roman Catholic Diocese of Brooklyn, sought an injunction against the Executive Order on the basis that it violated the Free Exercise Clause of the First Amendment.
As noted above, the Free Exercise Clause of the First Amendment provides that Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.
Although the Free Exercise Clause of the First Amendment refers to “Congress” (that is, the two Houses of Congress that are the supreme Federal law-making body), the constitutional guarantees also protect against interference by State governments, including Gubernatorial executive decrees.
A triumph for religious freedom…or viral spreading?
In Cuomo, the Supreme Court struck down Governor Cuomo’s order by a 5 to 4 majority.
The majority was made up of Justice Clarence Thomas, Justice Samuel Alito, and the three Trump appointees: Justices Neil Gorsuch, Brett Kavanagh, and Amy Coney Barrett.
Justice Gorsuch and Justice Kavanaugh also wrote concurring opinions. Chief Justice Roberts dissented, as did Justices Stephen Breyer, Sonia Sotomayer, and Elena Kagan.
The majority opinion is short. On p 3, the majority justices agreed that the applicants had demonstrated that the Executive Order was not “neutral” to religion because while a synagogue or church in a red zone could not admit more than 10 persons, these restrictions did not apply to a list of “essential businesses”, which included “acupuncture facilities, camp grounds, garages” and plants manufacturing chemicals and microelectronics”.
I dare say the risks of Covid spread are rather less in an acupuncture facility than in a congregation of the faithful belting out “Onward Christian Soldiers”, but the Supreme Court majority didn’t take the point.*
Having concluded that the law was not neutral, the majority then applied “strict scrutiny”: a standard of constitutional scrutiny that requires the government to prove that the law is “narrowly tailored” to serve a “compelling” state interest.
The majority accepted that stemming the spread of Covid-19 is a compelling interest, but concluded that the regulations were not “narrowly tailored” because there was no evidence of Covid outbreaks among the applicants’ congregations.
What kind of body count would have provided satisfactory evidence, I wonder?
The majority also thought that less restrictive rules could be adopted to “minimize the risk to those attending religious services”, including by linking the maximum attendance at a religious service to the size of the church or synagogue. “[E]ven in a pandemic, the constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty”, the majority wrote (p 5).
Justice Gorsuch and the protection of the public’s health
A feature of the opinions of the majority Justices is their relative lack of deference to the experience, competence or expertise of public health leaders in crafting pre-emptive measures to reduce Covid spread.
There is no recognition in any of the majority opinions that the risk of Covid spread in churches and other houses of worship, where singing or chanting takes place and where hundreds of people may huddle together, is any different from stores and shops, where people wear masks, and are not so tightly packed.
On p 3 of this concurring opinion, Justice Gorsuch pointedly criticised the 100 year-old case of Jacobson v Massachusetts. This was a case in which the Supreme Court upheld the right of the State of Massachusetts to require people to be vaccinated for smallpox, or pay a fine.
Justice Gorsuch pointed out (pp 3-4) that courts will apply rational basis review as the standard of scrutiny in their constitutional review of State laws, provided that fundamental or constitutionally protected rights are not implicated.
[Rational basis review is a lower level of constitutional scrutiny. To withstand rational basis review, the State must show that the State’s laws or actions are “rationally related” to a “legitimate” interest.]
However, Justice Gorsuch pointed out that religious activities must be treated “at least as well as comparable secular activities unless it can meet the demands of strict scrutiny” (p 4).
Justice Gorsuch (pp 5-6) goes on to criticise the opinion of Chief Justice Roberts, who dissented, and to surmise that the dissentients on the court wished “to stay out of the way in times of crisis”.
He continues: “[T]here is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”
Australia (population 26 million) has had 31,000 cases and 910 deaths. With emerging SARS-CoV-2 variants, things could change quickly.
The US has certainly struggled – really struggled – to effectively control the spread of Covid-19, and the world has looked on. The loss of life has been horrific, and extraordinary for such a wealthy, capable country.
Thoughtful commentary explores why: see, for example, here, here, here and here.
For lovers of democracy and human rights, America’s experience has been tragic in another respect: it adds heft to the narrative of autocrats and dictators that democratic government is ill-fitted to the challenges of the age.
What does make sense, in a democratic society where the rule of law operates, where elected officials are fulfilling the mandate granted by voters, is for them to be afforded a measure of deference – of operational space – to design instruments that prevent disease transmission and loss of life, in an environment that remains substantially uncertain.
If strict scrutiny is ever used as a weapon to paralyse government during a public health emergency, it will come at a price.
Why? Because swift and decisive government action to stamp out outbreaks of lethal variants is the key to saving lives, at least in countries where substantial numbers of the population remain unvaccinated. Viruses don’t care about human rights, and they never went to Law School. They don’t care if you are sincere in your beliefs or if you “truly believe”. They just jump from person to person when you get too close.
Ironically, when government does get it right, and no one dies, it all suddenly starts to look like overkill.
In his dissent, Chief Justice Roberts stated that: “[I]t is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic”.
His Honour wrote: “I do not regard my dissenting colleagues as “cutting the Constitution lose during a pandemic” or “shelter[ing] in place when the Constitution is under attack”.
Chief Justice Roberts then paraphrased Jacobson v Massachusetts (197 U.S. 11 (1905), 38, writing that “[o]ur Constitution principally entrusts [t]he safety and the health of the people to the politically accountable officials of the States to ‘guard and protect’.
It’s not clear, he says, which part of this phrase is so discomfiting to the majority justices.
Justice Breyer, in dissent, joined by Justices Sotomayor and Kagan, expressed similar sentiments (p 27/33).
What does seem clear, when you read the Cuomo decision, is that the new majority on the US Supreme Court will be far less likely to defer to expert opinion (however well founded) or to politically accountable State officials when it comes to scrutinising emergency regulations. It doesn’t bode well for elected officials seeking to discharge the one public duty that most libertarians would grudgingly concede: keeping the body count down during outbreaks of a deadly, contagious disease.
*Indeed, congregational singing was an interesting footnote in a subsequent case in which the Supreme Court struck down a Californian ban on indoor worship services. In South Bay United Pentecostal Church v Newsom, Justice Gorsuch wrote: “Of course we are not scientists, but….[e]ven in times of crisis – perhaps especially in times of crisis – we have a duty to hold governments to the Constitution” (p 5/15). It was left to Justice Kagan, dissenting with Justices Breyer and Sotomayor, to respond: “Justices of this court are not scientists. Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging epidemic. The court orders California to weaken its restrictions on public gatherings by making a special exception for worship services….Under the Court’s injunction, the State must instead treat worship services like secular activities that pose a much lesser danger…” (p 10/15).
Sydney Law School will be offering Critical Issues in Public Health Law, a postgraduate unit that explores Australian and international responses to infectious disease, as part of its Master of Health Law, in semester 1, 2022. See here or here for more information.
Sydney Health Law 