Crafting successful public health measures depends on the ability of top scientists to gather data and report their findings unrestricted to policymakers.
State of play: But concern has spiked among health experts and physicians over what they see as an assault on key science protections, particularly during a raging pandemic. And a move last week by President Trump, via an executive order, is triggering even more worries.
What’s happening: If implemented, the order creates a “Schedule F” class of federal employees who are policymakers from certain agencies who would no longer have protection against being easily fired— and would likely include some veteran civil service scientists who offer key guidance to Congress and the White House.
- Those agencies might handle the order differently, and it is unclear how many positions could fall under Schedule F — but some say possibly thousands.
- “This much-needed reform will increase accountability in essential policymaking positions within the government,” OMB director Russ Vought tells Axios in a statement.
What they’re saying: Several medical associations, including the Infectious Diseases Society of America, strongly condemned the action, and Democrats on the House oversight panel demanded the administration “immediately cease” implementation.
- “If you take how it’s written at face value, it has the potential to turn every government employee into a political appointee, who can be hired and fired at the whim of a political appointee or even the president,” says University of Colorado Boulder’s Roger Pielke Jr.
- Protections for members of civil service allow them to argue for evidence-based decision-making and enable them to provide the best advice, says CRDF Global’s Julie Fischer, adding that “federal decision-makers really need access to that expertise — quickly and ideally in house.”
Between the lines: Politics plays some role in science, via funding, policymaking and national security issues.
- The public health system is a mix of agency leaders who are political appointees, like HHS Secretary Alex Azar, and career civil servants not dependent on the president’s approval, like NIAID director Anthony Fauci.
- “Public health is inherently political because it has to do with controlling the way human beings move around,” says University of Pennsylvania’s Jonathan Moreno.
Yes, but: The norm is to have a robust discussion — and what has been happening under the Trump administration is not the norm, some say.
- “Schedule F is just remarkable,” Pielke says. “It’s not like political appointees editing a report, [who are] working within the system to kind of subvert the system. This is an effort to completely redefine the system.”
- The Center for Strategic and International Studies’ Stephen Morrison says that the administration has been defying normative practices, including statements denigrating scientists, the CDC and FDA.
The big picture: Public trust in scientists,which tends to be high, is taking a hit, not only due to messaging from the administration but also from public confusion over changes in guidance, which vacillated over masks and other suggestions.
- Public health institutions “need to have the trust of the American people. In order to have the trust of the American people, they can’t have their autonomy and their credibility compromised, and they have to have a voice,” Morrison says.
- “If you deny CDC the ability to have briefings for the public, and you take away control over authoring their guidance, and you attack them and discredit them so public perceptions of them are negative, you are taking them out of the game and leaving the stage completely open for falsehoods,” he adds.
- “All scientists don’t agree on all the evidence, every time. But what we do agree on is that there’s a process. We look at what we know, we decide what we can clearly recommend based on what we know, sometimes when we learn more, we change our recommendations, and that’s the scientific process,” Fischer says.
What’s next: The scientific community is going to need to be proactive on rebuilding public trust in how the scientific process works and being clear when guidance changes and why it has changed, Fischer says.
Justice Ruth Bader Ginsburg died on Friday, the Supreme Court announced.
Chief Justice John Roberts said in a statement that “Our nation has lost a jurist of historic stature.”
Even before her appointment, she had reshaped American law. When he nominated Ginsburg to the Supreme Court, President Bill Clinton compared her legal work on behalf of women to the epochal work of Thurgood Marshall on behalf of African-Americans.
The comparison was entirely appropriate: As Marshall oversaw the legal strategy that culminated in Brown v. Board of Education, the 1954 case that outlawed segregated schools, Ginsburg coordinated a similar effort against sex discrimination.
Decades before she joined the court, Ginsburg’s work as an attorney in the 1970s fundamentally changed the Supreme Court’s approach to women’s rights, and the modern skepticism about sex-based policies stems in no small way from her lawyering. Ginsburg’s work helped to change the way we all think about women – and men, for that matter.
I’m a legal scholar who studies social reform movements and I served as a law clerk to Ginsburg when she was an appeals court judge. In my opinion – as remarkable as Marshall’s work on behalf of African-Americans was – in some ways Ginsburg faced more daunting prospects when she started.
Starting at zero
When Marshall began challenging segregation in the 1930s, the Supreme Court had rejected some forms of racial discrimination even though it had upheld segregation.
When Ginsburg started her work in the 1960s, the Supreme Court had never invalidated any type of sex-based rule. Worse, it had rejected every challenge to laws that treated women worse than men.
For instance, in 1873, the court allowed Illinois authorities to ban Myra Bradwell from becoming a lawyer because she was a woman. Justice Joseph P. Bradley, widely viewed as a progressive, wrote that women were too fragile to be lawyers: “The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.”
And in 1908, the court upheld an Oregon law that limited the number of hours that women – but not men – could work. The opinion relied heavily on a famous brief submitted by Louis Brandeis to support the notion that women needed protection to avoid harming their reproductive function.
As late as 1961, the court upheld a Florida law that for all practical purposes kept women from serving on juries because they were “the center of the home and family life” and therefore need not incur the burden of jury service.
Challenging paternalistic notions
Ginsburg followed Marshall’s approach to promote women’s rights – despite some important differences between segregation and gender discrimination.
Segregation rested on the racist notion that Black people were less than fully human and deserved to be treated like animals. Gender discrimination reflected paternalistic notions of female frailty. Those notions placed women on a pedestal – but also denied them opportunities.
Either way, though, Black Americans and women got the short end of the stick.
Ginsburg started with a seemingly inconsequential case. Reed v. Reed challenged an Idaho law requiring probate courts to appoint men to administer estates, even if there were a qualified woman who could perform that task.
Sally and Cecil Reed, the long-divorced parents of a teenage son who committed suicide while in his father’s custody, both applied to administer the boy’s tiny estate.
The probate judge appointed the father as required by state law. Sally Reed appealed the case all the way to the Supreme Court.
Ginsburg did not argue the case, but wrote the brief that persuaded a unanimous court in 1971 to invalidate the state’s preference for males. As the court’s decision stated, that preference was “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the 14th Amendment.”
Two years later, Ginsburg won in her first appearance before the Supreme Court. She appeared on behalf of Air Force Lt. Sharron Frontiero. Frontiero was required by federal law to prove that her husband, Joseph, was dependent on her for at least half his economic support in order to qualify for housing, medical and dental benefits.
If Joseph Frontiero had been the soldier, the couple would have automatically qualified for those benefits. Ginsburg argued that sex-based classifications such as the one Sharron Frontiero challenged should be treated the same as the now-discredited race-based policies.
By an 8–1 vote, the court in Frontiero v. Richardson agreed that this sex-based rule was unconstitutional. But the justices could not agree on the legal test to use for evaluating the constitutionality of sex-based policies.
Strategy: Represent men
In 1974, Ginsburg suffered her only loss in the Supreme Court, in a case that she entered at the last minute.
Mel Kahn, a Florida widower, asked for the property tax exemption that state law allowed only to widows. The Florida courts ruled against him.
Ginsburg, working with the national ACLU, stepped in after the local affiliate brought the case to the Supreme Court. But a closely divided court upheld the exemption as compensation for women who had suffered economic discrimination over the years.
Despite the unfavorable result, the Kahn case showed an important aspect of Ginsburg’s approach: her willingness to work on behalf of men challenging gender discrimination. She reasoned that rigid attitudes about sex roles could harm everyone and that the all-male Supreme Court might more easily get the point in cases involving male plaintiffs.
She turned out to be correct, just not in the Kahn case.
Ginsburg represented widower Stephen Wiesenfeld in challenging a Social Security Act provision that provided parental benefits only to widows with minor children.
Wiesenfeld’s wife had died in childbirth, so he was denied benefits even though he faced all of the challenges of single parenthood that a mother would have faced. The Supreme Court gave Wiesenfeld and Ginsburg a win in 1975, unanimously ruling that sex-based distinction unconstitutional.
And two years later, Ginsburg successfully represented Leon Goldfarb in his challenge to another sex-based provision of the Social Security Act: Widows automatically received survivor’s benefits on the death of their husbands. But widowers could receive such benefits only if the men could prove that they were financially dependent on their wives’ earnings.
Ginsburg also wrote an influential brief in Craig v. Boren, the 1976 case that established the current standard for evaluating the constitutionality of sex-based laws.
Like Wiesenfeld and Goldfarb, the challengers in the Craig case were men. Their claim seemed trivial: They objected to an Oklahoma law that allowed women to buy low-alcohol beer at age 18 but required men to be 21 to buy the same product.
But this deceptively simple case illustrated the vices of sex stereotypes: Aggressive men (and boys) drink and drive, women (and girls) are demure passengers. And those stereotypes affected everyone’s behavior, including the enforcement decisions of police officers.
Under the standard delineated by the justices in the Boren case, such a law can be justified only if it is substantially related to an important governmental interest.
Among the few laws that satisfied this test was a California law that punished sex with an underage female but not with an underage male as a way to reduce the risk of teen pregnancy.
These are only some of the Supreme Court cases in which Ginsburg played a prominent part as a lawyer. She handled many lower-court cases as well. She had plenty of help along the way, but everyone recognized her as the key strategist.
In the century before Ginsburg won the Reed case, the Supreme Court never met a gender classification that it didn’t like. Since then, sex-based policies usually have been struck down.
I believe President Clinton was absolutely right in comparing Ruth Bader Ginsburg’s efforts to those of Thurgood Marshall, and in appointing her to the Supreme Court.