Opinion | Dr. SCOTUS Will Now See Your Next Patient

In this video, healthcare marketing consultant Ron Harman King, JD, MS, explores the Supreme Court’s troubling trend of overriding scientific and medical expertise in recent decisions, raising serious concerns about the future of evidence-based healthcare and public trust in medical professionals.

Following is a transcript of his remarks:

For anyone looking for evidence of declining trust in healthcare expertise and the body of scientific knowledge in general, they need look no further than today’s Supreme Court of the United States (SCOTUS).

I’m certainly not the first to knock the nation’s highest judiciary lately. Nevertheless, the current court’s habit of usurping scientific and evidence-based decision making from medical professionals and scientists deserves continued questioning, if not reproach.

Consider a trio of court decisions in just the last few weeks. In late June, a six-justice majority in Loper Bright Enterprises v. Raimondo overruled the principles of the 40-year-old Chevron doctrine.

This doctrine sprang from a 1984 Supreme Court holding that whenever federal laws were silent or ambiguous on certain issues, courts should generally defer to administrative agencies staffed with subject-matter experts. The ruling has reportedly been cited in more than 7,000 legal cases.

Much has been written about the potentially far-reaching consequences of the Loper decision in healthcare. Bottom line, Loper stands to open the floodgates to legal challenges to longstanding consumer protections implemented by the U.S. Department of Health and Human Services.

For the everyday health practitioner, the outcome may create perpetual confusion over which government branch now controls healthcare rules. How long before today’s standard of care succumbs to tomorrow’s court edict?

Interestingly, when the court had the chance in the latest term to defer to credentialed scientific experts, it punted twice — perhaps for some with an eye toward an upcoming election.

In FDA v. Alliance for Hippocratic Medicine, decided June 13, all nine justices rejected an attempt by conservative physicians to ban the abortion drug mifepristone [Mifeprex] only because the doctor plaintiffs suffered no harm from the drug and thus didn’t have legal standing. The jurists made no ruling on the medical aspects of the case — that is, whether it was safe for women to receive the drug by mail.

However, Justice Kavanaugh opened the door to other challenges, writing in the unanimous opinion, “it is not clear that no one else would have standing” to challenge the FDA’s relaxed regulation of mifepristone.

Likewise, in Moyle v. United States, decided June 27, the state of Idaho asserted a right to ignore the Emergency Medical Treatment and Labor Act (EMTALA) requiring hospitals to perform emergency abortions not to just preserve a woman’s life but also to prevent serious harm to her health.

Before the court was a constitutional question over Idaho’s law banning abortion except in instances to save the mother’s life. In the spirit of EMTALA, the court might have yielded to the judgment of thoroughly trained and experienced clinicians treating individual patients at high risk and held that federal law preempts state law here (as it generally does). Instead, the divided justices dismissed the dispute out of hand, essentially saying, “Whoops, our mistake, we should have never taken this case.”

The justices’ written reasons for the dismissal were varied and somewhat conflicting. Regardless, cynics noted the timing of the dodge a mere 4 months before a national election in which abortion is due to play a significant role.

For historical context, the seeds of these kinds of decisions may have been sown 31 years ago.

The 1993 case Daubert v. Merrell Dow Pharmaceuticals, Inc. involved a baby born with birth defects allegedly caused by the mother’s use of an anti-nausea drug. In its holding, the Supreme Court established a five-part test for determining whether an expert witness is qualified based on the witness’s scientific methodology.

Advocates of the Daubert standard say it thwarts lawyers from exaggerating medical malpractice claims for plaintiffs out of a pecuniary, contingency-fee motivation. Additionally, it purportedly blocks baseless trial testimony proffered by “white coats and PhDs” whose testimony may be admitted mainly due to professional credentials.

On the other hand, Daubert critics say it favors deep-pocketed corporate defendants in mass tort suits who can afford to out-lawyer injured plaintiffs to keep out bona fide expert opinion. Either way, Daubert and two later court decisions invited judges to make scientific discernments well beyond their competency level in some instances.

Flash forward to 2022 and Dobbs v. Jackson Women’s Health Organization. This landmark case drew more than 140 amicus briefs, of which only two medical associations opposed the 49-year-old Roe v. Wade viability rule – the politically conservative American College of Pediatricians and the Association of American Physicians and Surgeons.

In contrast, two dozen other major medical groups representing nearly 1 million physicians and nursing midwives filed friend-of-the-court briefs supporting the clinical and scientific underpinnings of Roe. The list included the American Medical Association, the American Society for Reproductive Medicine, the American Academy of Family Physicians, and the American College of Obstetricians and Gynecologists.

Their position was that abortion is an overwhelmingly safe procedure and that ending Roe would place clinicians in an “untenable position” of choosing between exercising sound medical judgment and risking loss of their medical licenses.

Despite overwhelming support for Roe from the healthcare professional community, six conservative justices overturned it and kicked abortion decision making away from patients and their physicians toward state legislatures.

The result is that 14 states have mostly criminalized abortion, while another 11 have moved toward greater restrictions imposed by lawmakers. One consequence: a 2023 survey of graduating obstetrics and gynecology residents found that more than 17% said Dobbs changed their plans as to where they would practice.

In the end, it all comes down to whom you trust more. For more than a few legal scholars, that call goes to science geeks over legal wonks.

An example is Wendy E. Parmet, Northeastern University law professor and Director of the Center for Health Policy and Law. In the article “Inside the U.S. Supreme Court’s War on Science,” by veteran science and technology journalist Jeff Tollefson, Parmet says the Supreme Court is “dismissive of science and the real-world impact of their decisions.”

Our constitution’s brilliance rests on the foundation of checks and balances of the three branches of government. But popular sentiment suggests widespread perception of an imbalance. From a high of 80% in 1999, public trust in our nation’s judicial branch has dropped to barely half that, at 41% as of September 2023.

I have a hunch as to one reason. It’s likely because more of us are fearing that our healthcare lies in the hands of those not wearing white coats but black robes.

Ron Harman King, JD, MS, is CEO of Vanguard Communications, a healthcare marketing and practice management consulting firm, and the author of The Totally Wired Doctor: Social Media, the Internet & Marketing Technology for Medical Practices. He blogs for MedPage Today on the topics of technology, the law, and the patient experience.

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