John O'Connor illustration
McKnight’s Editorial Director John O’Connor
John O'Connor
John O’Connor

The Supreme Court made two recent rulings that just might have a major impact on senior living’s future.

The first is a no-brainer: reversing Roe v. Wade. That decision overturned the constitutional right to an abortion. But the ruling has another fateful implication as well, one I’ll address shortly.

More recently, the court agreed that Colorado cannot enforce a state anti-discrimination law against a Christian website designer. This stems from her refusal to create wedding websites for same-sex couples. The court’s justification? Making her do so would violate her First Amendment freedom of expression guarantee.

I’m not going to get into which side is right or wrong in either case. The relative talking points are well-established. I would like to address some of the odd decision-making that colored both rulings, however, as each case could affect your ability to run a senior living community in the years ahead.

Regarding the reluctant web designer: The court’s assent that the right to free speech is being impinged here is an exceptionally generous interpretation of First Amendment protections. Taken to its logical conclusion, any person can say or do — or not say or not do — anything that he or she wants. After all, it’s protected speech, right? Which begs this question: what other views — no matter how extreme or whack-a-doodle — are not just protected, but take priority?

How about the opinion that serving residents of a different skin color violates strongly held convictions?

Or referring to those of other races or ethnicities with the most degrading terms imaginable? By essentially saying any kind of expression — no matter how harmful or rights violating — is protected speech, the court has given racists and others with bad intent not just a shield, but a weapon.

Now consider some of the most disparaging things an employee or resident might say or have published about your organization. Is that protected speech as well? Under the logic applied in the web designer case, it sure seems to be.

Which brings us to the court’s Dobbs v. Jackson decision, which upends Roe v. Wade. Here, the court did something that is extremely rare: It ignored its own tradition of respecting the doctrine of stare decisis. In layman’s terms, that means honoring precedent.

As for why established precedent was expendable this time, Justice Samuel Alito served up a peculiar rationale: the “we know what’s best” justification.

“When it comes to the interpretation of the Constitution,” Alito wrote, “we place a high value on having the matter ‘settled right.'”

As it turns out, one person’s view of what’s right is often contradicted by an equally convinced opponent. But that minor technicality apparently doesn’t apply if all that matters is whether your side has the votes. Which in this case, conservatives (who oppose abortion) do, by a 6-3 majority.

But a might-makes-right attitude can have a major flaw. One is that, over time, the other side might gain the majority. What then, especially if established precedent is off the table? I think we know.

Whether by design or convenience, the nation’s highest court just gave additional protections to those who might have racism or rebellion in their hearts.

What could possibly go wrong?

John O’Connor is editorial director for McKnight’s Senior Living and its sister media brands, McKnight’s Long-Term Care News, which focuses on skilled nursing, and McKnight’s Home Care. Read more of his columns here.

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