Despite the fact we are currently in the midst a deadly and unprecedented pandemic, the majority of the Supreme Court’s right-leaning justices seems unlikely to stop it. The reactionary “justices” seem more inclined to shield corporate profits and red states’ rights than to protect the health and safety of the people.
Scientists agree that vaccines and masking can prevent COVID infections. However, the high court is being asked by Biden to block rules that would force vaccines and/or masking. The court heard arguments in two cases on January 7 that could have a significant impact on the health and well-being of millions of Americans.
The high court will not decide whether to strike the mandates down, but instead whether to prevent them being in effect while the lower courts review their constitutionality. This could take many months. Untold numbers of people are dying and getting sick in the meantime.
Stephen Breyer observed that three-quarters million COVID cases had been added the day before the arguments. “Can you ask us to say it’s in the public interest in this situation to stop this vaccination rule? … To me, I would find that unbelievable,” Breyer remarked to Scott Keller, attorney for the business associations challenging Biden’s vaccine-or-mask mandate.
Six right-wingers propose to stop the rule protecting workers
The court’s first set of cases are listed under the name National Federation of Independent Business v. OSHA. Twenty-six business associationsAttorneys general from 27 states (mostly red) are suing the Occupational Safety and Health Administration to stop it from mandating that all companies with more than 100 employees get vaccinated. Or Wear masks and submit for weekly COVID tests. Sonia Sotomayor pointed out that this is not a mandate for vaccines, as it offers a choice between vaccinations and masking/testing. OSHA estimates that 40 percent of employers will choose the masking-and-test policy.
Attorney Keller argued that the vaccine-or-mask mandate was “not a necessary, indispensable use of OSHA’s extraordinary emergency power.” Elena Kagan retorted, “It’s an extraordinary use of emergency power occurring in an extraordinary circumstance, a circumstance that this country has never faced before.”
Keller predicted that leaving the mandate in effect would cause “a massive economic shift” leading to “billions upon billions of non-recoverable costs” for businesses. He claimed that Congress should have clearly granted OSHA the authority for establishing rules to combat COVID.
Pursuant to its authority under the Occupational Health and Safety Act, OSHA issued an “emergency temporary standard” to protect workers from viruses that pose “a grave danger.”
OSHA predicts that the rule will affect 84million workers and that approximately 22 million people will be vaccinated. According to estimates, it would prevent 250,000 people being hospitalized. This exception applies to workers who have religious objections or who don’t work outside their normal hours.
U.S. Solicitor General Elizabeth Prelogar told the court, “Workers are getting sick and dying every day because of their exposure to the virus at work. OSHA amassed substantial evidence of widespread workplace outbreaks across industries.” She said unvaccinated workers have a 1-in-14 chance of being hospitalized and a 1-in-200 chance of dying.
During argument, all six of the right-leaning members of court seemed to favor the corporations and the red state. Conservatives suggested OSHA had exceeded its authority under the statute, and that the vaccine and/or masking regulations are more appropriately within the jurisdiction of Congress or the States (even though it was Congress who enacted the statute giving OSHA such powers). They thought the rule was too broad as COVID is not a distinctly “occupational” danger.
Breyer, Kagan, and Sotomayor all favored protecting workers against the COVID-related public health crisis. Kagan said, “I would think that workplace risk is about the greatest, least controllable risk with respect to COVID that any person has.” She added, “You have to be there. You must be there at least eight hours a days. You have to be in the same environment as the workplace. And you have to be there with a bunch of people you don’t know and who might be completely irresponsible.”
Kagan queried, “Why isn’t this necessary to abate a grave risk? This pandemic has claimed the lives of nearly a million people. This is the greatest public health threat this country has faced in the past century. Everyday, more people are dying. More and more people are getting sick every day.” Kagan noted that nearly a million people have died from COVID. “We know that the best way to prevent spread is for people to get vaccinated,” she stated, “and to prevent dangerous illness and death is for people to get vaccinated. This is by far the best. The second best is to wear masks.”
Indeed, the Centers for Disease Control and Prevention found that unvaccinated people have a much higher risk of deathThey are more likely to be fully vaccinated than those who are not.
Sotomayor pointed out that some states prohibit employers from ordering vaccines, and that employers are prohibited from requiring employees to wear masks.
Breyer stated that he would allow the mandates for the litigation to continue, citing statistics about high rates of infection and death from COVID.
Chief Justice John Roberts stated that Congress did not give OSHA the power to impose vaccines or tests and that OSHA has never mandated vaccines.
Neil Gorsuch and Brett Kavanaugh — notorious opponents of deference to agencies that protect people — said the OSHA statute didn’t clearly authorize the agency to impose the mandate, considering the economic ramifications.
Gorsuch, the only member of the court present during arguments without a mask, said “the flu kills people every year,” and OSHA doesn’t regulate in that area. He misrepresented the flu’s annual death toll of hundreds of thousands. The flu is actually a seasonal illness. kills between 12,000 and 52,000 Americans each yearAccording to the CDC, it is a staggering 9%.
Samuel Alito, who, like all of his colleagues on the court, is fully vaccinated, pointed out that there are “risks [of … adverse consequences” from the vaccines. “Serious side effects that could cause a long-term health problem are extremely unusual following any vaccination, including COVID-19 vaccination,” the CDC says, however. “The benefits of COVID-19 vaccination outweigh the known and potential risks.”
Alito derisively described OSHA’s interpretation as “squeezing an elephant into a mousehole,” strongly indicating he would refuse to allow the protective rule to go into effect.
Amy Coney Barrett thought that OSHA should have adopted a more targeted rule, saying this rule was too broad as it covered both dental employees and landscapers.
Clarence Thomas was not convinced that the mandate was “necessary.”
Right-Wing Majority May Well Halt Rule Protecting Medicare and Medicaid Patients
The second bloc of cases the court considered is Biden v. Missouri and Becerra v. Louisiana. They involve the fate of a directive promulgated by the secretary of the Department of Health and Human Services (HHS), which requires vaccinations for more than 17 million health care workers in facilities that accept Medicare and Medicaid. The rule contains an exemption for medical and religious reasons.
In these cases, a right-wing majority of the court may well strike down the mandate which would affect nearly half the country. But the votes are not as predictable as they are in the OSHA case.
Lawyers for the states challenging the rule argued that requiring vaccinations would cause health workers to resign from their jobs. “Rural America will face an imminent crisis,” stated Jesus Osete, Missouri’s deputy attorney general.
But Kagan responded that HHS had considered that eventuality before issuing the mandate. “I don’t know very much about the rural market,” Kagan acknowledged. “But the secretary” of Health and Human Services, “that’s his job.” Kagan added that many workers would feel safer coming to work if their coworkers were vaccinated. She noted that some people aren’t going to the hospital for mammograms and colonoscopies for fear of contracting COVID.
“The one thing you can’t do is to kill your patients. So you have to get vaccinated so that you’re not transmitting the disease that can kill elderly Medicare patients, that can kill sick Medicaid patients,” Kagan said. She called the elderly on Medicare and the poor who receive Medicaid “the most vulnerable patients there are,” adding, “Poverty has a great deal to do with medical outcome.”
Sotomayor noted that this rule was promulgated under the Spending Clause, affording the government wide latitude to impose conditions on the monies it disburses. Roberts appeared persuaded by this argument.
In a likely attempt to appear fair and balanced to protect the legitimacy of the Roberts Court, the chief justice seemed prepared to uphold the Medicare-Medicaid health care mandate. He maintained that it is closely related to COVID’s threat to health so it could be justified in an emergency.
Gorsuch appeared unmoved in his intention to strike down the mandate aimed at protecting Medicare and Medicaid patients. He echoed the states’ argument that the regulation “effectively controls the employment of individuals at these healthcare facilities in a way that Congress specifically prohibited.” Gorsuch characterized this use of money “as a weapon to control these things,” and suggested that it “should be left to the states to regulate.”
Kavanaugh also leaned toward blocking the rule, although he wondered aloud why “the people who are regulated are not here complaining about the regulation, — the hospitals and healthcare organizations. A very unusual situation. They, in fact, overwhelmingly appear to support the … regulation.”
Barrett objected that this was an “omnibus” rule covering ambulatory surgical centers as well as skilled nursing facilities. But she may have been swayed by the argument that Congress explicitly made provisions that the courts found objectionable severable, so those sections could be struck down without dooming the entire mandate. As Sotomayor pointed out, “the vast majority of the regulations across all facilities relate to health and safety.”
Thomas expressed worry about whether the vaccine “could have significant health consequences” and was troubled that the rule could preempt the issue in some states. Alito was concerned about prior notice to the states about the mandate.
Although Thomas and Alito seemed unsympathetic to the mandate, they questioned whether the states of Missouri and Louisiana had “standing” to sue on behalf of their citizens.
The Supreme Court Should Not Play Politics With Our Health
It is essential that the Biden administration’s mandates become operable to protect millions of people in the United States from illness and death. The response to the pandemic has fallen largely along political lines, so we cannot rely on the states to safeguard their residents.
Seven of the 10 states that have the highest number of deaths per 100,000 residents as a result of COVID are led by Republican governors.
Unvaccinated people tend to focus on their personal choice and not on the good of the whole. “But the point is that it’s not the risk to the individual that’s at question; it’s that risk plus the risk to others,” Sotomayor noted. “When you remain unmasked or unvaccinated, you put yourself at risk, but you put others” at risk as well.