The Courts and Public Health: Caught in a Pincer Movement by Peter D. Jacobson, Wendy E. Parmet :: SSRN

Faced with a conservative judiciary the FDA
has given up its plan for images like this on cigaret packs.

Conservative originalism is hostile to regulation and national authority (unlike the historical Federalists who favored national authority but settled low to get a slavery-reserving compromise in 1787)  It embraces an expansive first amendment when that appears to serve the acquisition or preservation of property which Burkeans see as the foundation of liberty.  One result of their ascendancy in the federal judiciary: the FDA has withdrawn its proposed graphic warnings on cigarette packs. - GWC

The Courts and Public Health: Caught in a Pincer Movement by Peter D. Jacobson, Wendy E. Parmet :: SSRN:

Public health practitioners are familiar with the general outlines of legal authority and with judicial standards for reviewing public health regulations. What may not be as familiar are three emerging judicial doctrines that pose considerable risks to public health initiatives. 
We explain the contentious series of judicial rulings that now place health departments’ broad grant of authority in jeopardy. One doctrine invokes the First Amendment to limit regulatory authority. The second involves the Supreme Court’s reinterpretation of federalism to limit both federal and state public health interventions. The third redefines the standard of evidence required to support regulations. 
Together, these judicial trends create a pincer movement that places substantial new burdens on the ability of health departments to protect health.

Accepted Paper Series 



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