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SCOTUS hearings: What Judge Barrett’s addition to Supreme Court could mean

October 16, 2020

ASU law scholars explain the impact the confirmation could have on existing public health, health care and reproductive laws

Judge Amy Coney Barrett’s confirmation hearings came to a close this week, and the public is getting an opportunity to hear her stance on multiple key issues.

The conservative judge, if confirmed, would sway the court to the right and could have a potential impact in the areas of health care, abortion rights and Second Amendment rights, to name a few.

What does it all mean?

To explain the impact the confirmation could have on existing public health, health care and reproductive laws, we spoke to ASU Sandra Day O’Connor College of Law professors Kaiponanea Matsumura, a legal expert in gay and reproductive rights, and James Hodge, a national public health law and policy expert, whose responses include contributions by ASU Law research scholar Jennifer Piatt.

Question: The Affordable Care Act has been a topic of discussion. What could happen to the act if Barrett is confirmed?

Hodge: There are manifold political concerns that Judge Barrett’s ascension to the Supreme Court could lead to the nullification of the entire ACA. However, this is highly unlikely. The sole basis for the court’s determination that the entire ACA is void rests on a speculative argument that the court would see the entire act as inseverable from its questionable individual mandate provision. 

When the Tax Cuts and Jobs Act of 2017 zeroed out the penalty for the individual mandate, the argument surfaced that the ACA’s original mandate provision is unconstitutional because it no longer results in direct revenue collection. Collecting revenue, noted Chief Justice Roberts in NFIB v. Sebelius, is a necessity to Congress’ use of tax powers. The claim that a subsequent zeroing out of the tax penalty via Congress invalidates the individual mandate provision is shaky on its own. Yet, even if the mandate is declared unconstitutional, the notion that it is inseverable from the massive array of other provisions of the ACA is far-fetched. Even the lower federal court of appeals could not agree the ACA in its entirety was inseverable. It chastised the federal district in Texas for a hasty conclusion to this effect.

Plain and simple, for the U.S. Supreme Court to declare the entire ACA as unconstitutional based on a single, potentially unconstitutional provision would represent an overextension of the court’s authority under principles of separation of powers. Multiple, conservative-minded justices on the court have disdained such an approach recently in prior decisions.

Q: Has Barrett offered definitive guidance on her views of Second Amendment rights to gun possession?

Hodge: According to the gun violence archive, 33,703 Americans have died so far in 2020 as victims of gun violence. Rates of violence are increasing during the COVID-19 pandemic. Public health legal interventions are pivotal to curbing these alarming trends but must be constructed within Supreme Court jurisprudence on the scope of Second Amendment rights to gun possession.

In District of Columbia v. Heller, the late Justice Antonin Scalia, a mentor of Judge Barrett, led the court’s decision preventing governments from issuing broad handgun bans or requirements that guns be kept unloaded and disassembled at home. During her Supreme Court confirmation hearings, Judge Barrett declined to provide detailed information on her views of gun control despite direct questioning. In her dissent in the 7th Circuit Court of Appeals case, Kanter v. Barr, however, Judge Barrett opined that states cannot restrict all felons from possessing guns, suggesting only dangerous felons can be deprived of their Second Amendment rights. Views like these may expand the court’s interpretation of the breadth of Second Amendment rights to the detriment of public health legal interventions designed to limit morbidity and mortality.

Q: With Barrett being conservative, what changes could we see in the areas of LGBT rights?

Matsumura: LGBT rights are significantly at risk. Remember that Obergefell v. Hodges, the case that legalized same-sex marriage, was decided by a 5-4 vote. Two of the five justices in the majority, Justices Anthony Kennedy and Ruth Bader Ginsburg, are no longer on the court. Just last week, Justices Clarence Thomas and Samuel Alito criticized the “ruinous consequences” of Obergefell for religious liberty. Chief Justice John Roberts has shown a reluctance to overrule precedent, but that still leaves five justices who likely disfavor a constitutional right to marry for same-sex couples.

Earlier this year, the Supreme Court decided, by a vote of 6-3, that Title VII, which prohibits employment discrimination on the basis of sex, also prohibits discrimination on the basis of sexual orientation and gender identity. This was an important victory for the LGBT community. Given the margin of the decision, the outcome is safe for now, as only Justice Ginsburg’s vote would switch. But even as he delivered a win for LGBT individuals, Justice Gorsuch noted that Title VII’s anti-discrimination protections might be trumped by religious liberties in certain situations, either because of the Free Exercise Clause of the First Amendment, or the Religious Freedom Restoration Act, which Justice Gorsuch described as “a kind of super statute.”

The most imminent challenge to the LGBT community’s recently won rights is likely to come from religious carve-outs; for instance, exemptions for business owners who do not want to offer their services to gay couples. Judge Barrett’s confirmation would virtually guarantee that religious liberty claims would prevail over LGBT rights claims when the two come into conflict.

Q: How might a more conservative court’s view of reproductive rights, including access to abortion, impact women’s health access and choices?

Hodge: Among other critical reproductive rights, the fundamental right to an abortion has been constitutionally enshrined since the Court decided Roe v. Wade in 1973. The late Justice Ruth Bader Ginsburg was a staunch supporter of women’s reproductive rights, notably including access to abortions.

Some speculate that the federally recognized right to abortion may be overturned if Judge Barrett is appointed to the court. Yet, even if the right remains, approval by the court of governmental limitations on abortions may greatly curb women’s access and reproductive freedom.

The Center for Reproductive Rights has identified at least 24 states classed already as “hostile” towards abortion rights. Without strong constitutional protections, access to abortions in these and other jurisdictions could become severely restricted, inhibiting access to care and directly impacting rates of maternal mortality/morbidity. 

Matsumura: The real question is whether the court will continue to chip away at what constitutes an “undue burden” on that right under the current framework established by Planned Parenthood v. Casey, or whether it will reverse Roe entirely.

To put it another way: Reproductive freedom can suffer a “death by a thousand cuts” even if Roe is not overturned. That seems like Chief Justice Roberts’ preferred approach. Justice Thomas would prefer to overturn Roe. The approach that the conservative majority takes will depend on how President Trump’s appointees want to proceed.

Q: What are the other legal changes we could see that may impact the public’s health?

Hodge: It cannot be forgotten that a substantial change in composition of the members of the U.S. Supreme Court is occurring in the throes of the COVID-19 pandemic, which has raised substantial constitutional claims and issues at the intersection of the role of governments in preventing its spread contrasted with the rights, freedoms and interests of individuals.

The addition of a prospective new, more conservatively minded justice to the court may directly impact the gamut and scope of forthcoming COVID-19 constitutional challenges on topics as wide-ranging as religious freedoms, rights to associate, free expression and privacy rights extending from testing, screening and vaccination protocols or mandates.

Future cases likely to appear before the court may shape the scope of public health legal interventions for decades to come, all of which may be heavily influenced by the prospective Justice Barrett.

Top photo courtesy of

Meenah Rincon

Public Relations Manager , ASU Online

How rain can move mountains

Study reveals how even the mightiest of mountain ranges — the Himalaya — bends to the will of raindrops

October 16, 2020

Scientists have long thought that rainfall has a dramatic effect on the evolution of mountainous landscapes, but the reasons for how and why have been elusive. This seemingly logical concept has never been quantitatively demonstrated until now, thanks to a new technique that captures precisely how even the mightiest of mountain ranges — the Himalaya — bends to the will of raindrops.

The research, recently published in Science Advances with Arizona State University co-authors Kelin Whipple, Arjun Heimsath and Kip Hodges of the School of Earth and Space Exploration, not only improves our understanding of how mountain ranges evolve over millions of years, but also paves the way for understanding natural hazards associated with climate-driven erosion and, in turn, human life. The Bhutan Himalaya is a land of extremes with rugged topography, dissecting low-relief uplands, rainfall that ranges from 0.7 to 6 m/year and erosion rates that vary by more than 2 orders of magnitude. Photo by A. Heimsath/ASU Download Full Image

“These findings are the latest outcome from a collaborative study that began several years ago at ASU of the distinct tectonic, topographic, and erosional evolution of the Bhutan Himalaya,” Whipple said. “Our major motivation was to achieve an improved understanding of how current and past rainfall patterns sculpt topography and potentially influence the pattern and rate of tectonic uplift.”

Although there is no shortage of scientific models aiming to explain how the Earth works, the greater challenge can be making enough good observations to test which are most accurate.

The study was based in the central and eastern Himalaya of Bhutan and Nepal, because this region of the world has become one of the most sampled landscapes for erosion-rate studies.

Lead author Byron Adams of the University of Bristol, with ASU collaborators Whipple, Heimsath and Hodges, and with Adam Forte of Louisiana State University, used cosmic clocks within sand grains to measure the speed at which rivers erode the rocks beneath them. Adams and Forte were both formerly at ASU.

“When a cosmic particle from outer space reaches Earth, it is likely to hit sand grains on hillslopes as they are transported toward rivers. When this happens, some atoms within each grain of sand can transform into a rare element. By counting how many atoms of this element are present in a bag of sand, we can calculate how long the sand has been there, and therefore how quickly the landscape has been eroding,” Adams said.

“Once we have erosion rates from all over the mountain range, we can compare them with variations in river steepness and rainfall. However, such a comparison is hugely problematic because each data point is very difficult to produce and the statistical interpretation of all the data together is complicated.”

Adams and his team overcame this challenge by combining regression techniques with numerical models of how rivers erode.

“We tested a wide variety of numerical models to reproduce the observed erosion-rate pattern across Bhutan and Nepal. Ultimately only one model was able to accurately predict the measured erosion rates,” Adams said. “This model allows us for the first time to quantify how rainfall influences river incision and hillslope erosion rates in mountainous landscapes.”

“Our findings show how critical it is to account for rainfall when assessing patterns of tectonic activity using topography, and also provide an essential step forward in addressing how much the slip rate on tectonic faults may be controlled by climate-driven erosion at the surface,” Whipple said.

The findings of this study also carry important implications for land-use management, infrastructure maintenance and hazards in the Himalaya.

Rainfall-driven variations in erosion rates can lead to important differences in landscape instabilities and hazards. In the Himalaya, there is the ever-present risk that high erosion rates can drastically increase sedimentation rates behind dams, jeopardizing critical hydropower projects.

Furthermore, enhanced river incision can undermine hillslopes, elevating the risk of debris flows or landslides, some of which may be large enough to dam the river, creating a new hazard — lake outburst floods. 

“Our data and analysis provide an effective tool for estimating patterns of erosion in mountainous landscapes such as the Himalaya, and thus, can provide invaluable insight into the hazards that influence the hundreds of millions of people who live within and at the foot of these mountains,” Adams said.

Building on these findings, Whipple is leading the team in an effort to extend this analysis in an application to the full length of the Himalaya.

“This study will test our model against additional data sets from the central and western Himalaya and apply the results to estimate patterns of erosion rate across the entire range,” Whipple said. “Erosional patterns will allow us to differentiate among competing models of the mountain-building process and help refine estimates of seismic and erosional hazards.”

This article was written by Byron Adams and Victoria Tagg of Bristol University (UK) with contributions by Karin Valentine of ASU’s School of Earth and Space Exploration.