Categories: News, Newsletter, Newsletter Issue 2023:3

Summary of the 2023 ASHEcon Opening Plenary on the U.S. Constitution and Health Equity

By Brandyn F. Churchill

ASHEcon 2023 started with a discussion on the U.S. Constitution and Health Equity. The plenary was moderated by Marcella Alsan (Professor of Public Policy at Harvard Kennedy School) and included Sam Halabi (Director of the Center for Transformational Health Law at Georgetown Law), Caitlin Myers (John G. McCullough Professor at Middlebury College), and Christopher Carpenter (E. Bronson Ingram University Distinguished Professor at Vanderbilt University). Panelists spoke broadly about how the U.S. Constitution shapes access to healthcare and offered insights on the implications of recent judicial decisions regarding abortion access, protections for LGBTQ+ individuals, and gun regulations. The topics and themes are summarized below.

The U.S. Constitution and Abortion Access

Until June 2022, every U.S. state had an abortion facility in it. As a result, Myers pointed out that the average American woman of reproductive age lived approximately 25 miles from a facility, and fewer than 1% of these women lived more than 200 miles from the nearest facility. However, after the United States Supreme Court’s landmark ruling in Dobbs v. Jackson Women’s Health Org. (2022)overturned the precedent set in Roe v. Wade (1973) and affirmed in Casey v. Planned Parenthood (1992), states regained substantial regulatory power over abortion access. By June 2023, 13 states were enforcing total abortion bans with a dozen more expected to follow suit. As a result, the average woman in states with these bans now lives over 300 miles from the nearest abortion facility. Based on prior literature on the role of distance, and the fact that most women seeking an abortion (i) are already parenting, (ii) live near the poverty threshold, and (iii) are credit constrained, Myers estimates that 25% of these affected women will be unable to go elsewhere to have an abortion. While she does not anticipate that this will be a large demographic shock – she projects a 1.5% increase in births nationally – Myers instead worries that the Dobbs decision will exacerbate inequality and increase poverty among already disadvantaged women, and she urged researchers and policymakers to be on the lookout for these issues.

The U.S. Constitution and LGBTQ+ Rights

Carpenter discussed recent rulings affecting the health and welfare of sexual and gender minority individuals. One of the most well-studied cases on this topic is Obergefell v. Hodges (2015), in which the Supreme Court granted legal access to same-sex marriage nationwide. According to Carpenter, existing research clearly shows that sexual minority people took up marriage and received tangible benefits associated with marriage, including changes in federal tax treatment, immigration rights enabling them to sponsor their spouses for residency, and access to health insurance coverage through their spouses’ plan. Carpenter also stressed that absolutely nothing happened to different-sex marriages. Carpenter also pointed out that the more recent Supreme Court ruling in Bostock v. Clayton Cty. (2020), which designated sexual and gender minority identity as protected classes for the purposes of employment non-discrimination, has been shown to have plausibly causal effects on health. Notably, though, this decision did nothing for LGBTQ+ discrimination for housing, public accommodations, or medical care. Finally, Carpenter pointed out that much of the recent legislative activity in this space has been targeted toward transgender individuals, including bans on gender affirming care for minors and – in the case of Missouri where ASHEcon 2023 and this plenary occurred – some adults. Yet because these are not yet constitutional questions, transgender individuals and their families have been left in legal limbo.

The U.S. Constitution and Gun Violence

Given the ongoing gun violence crisis in U.S., Halabi provided an overview of recent cases on the right to bear arms. He pointed out that the Second Amendment in fact has two prefatory clauses that raised a question over whether individuals not connected to service in a militia possessed a right to bear arms. While the Supreme Court ruled in District of Columbia v. Heller (2008) that the right to bear arms belongs to the individual, Halabi stated that he felt Judge Henderson’s dissenting opinion when the case was before the U.S. Court of Appeals for the D.C. Circuit convincingly detailed how the right to bear arms originated as an obligation and responsibility to come to the defense of the community. Similarly, Halabi stated that the Supreme Court’s more recent opinion in NYSPRA v. Bruen (2022) has further diminished efforts to restrict access to firearms. This ruling found that while states can enforce laws providing a checklist of requirements to obtain a concealed carry permit, they cannot provide local authorities discretion to deny these permits if all the conditions have been met. Importantly, he stressed that while a world with increasing mass shootings might make it easy to conclude that we need greater restrictions on gun ownership, it is important to keep in mind the groups which are often hurt by such policies. He reminded audiences that approximately 96% of arrests and convictions for offenses related to gun ownership were against people of color.

What Comes Next?

Discussing which issues continue to worry them, Carpenter pointed to Justice Thomas’s concurring opinion in the Dobbs decision calling on the Court to revisit other legal decisions relying on substantive due process. In addition to Obergefell v. Hodges (2015), Carpenter noted that Thomas explicitly referenced Lawrence v. Texas (2003)which found that states cannot prohibit consensual non-procreative sexual relations between adults. Limiting or overturning these two cases would have catastrophic repercussions for LGTBQ+ people. Myers added that Thomas’s opinion also called on the Court to reconsider Griswold v. Connecticut (1965) which established a right to buy and use contraception. Despite these worries, Halabi stressed that audience members should not give up hope, because a group of people committed to the principles of diversity can still accomplish a lot, including changing the law.