The Supreme Court on Thursday has blocked the Biden administration vaccine-or-testing rule for large businesses, but allowed the vaccine mandate for employees at federally funded health care facilities to go into effect nationwide.
The result is somewhat of a mixed bag for President Joe Biden and his administration as they aim to get more Americans vaccinated against COVID-19, especially in the wake of the highly contagious omicron variant.
In a statement, President Joe Biden hailed the court's ruling on health care workers, but said he was "disappointed" in the decision on large companies and urged businesses to make their own choices in terms of the health and safety of their employees.
"Today’s decision by the Supreme Court to uphold the requirement for health care workers will save lives: the lives of patients who seek care in medical facilities, as well as the lives of doctors, nurses, and others who work there," Biden said. "It will cover 10.4 million health care workers at 76,000 medical facilities. We will enforce it."
"At the same time, I am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law," the president continued. "This emergency standard allowed employers to require vaccinations or to permit workers to refuse to be vaccinated, so long as they were tested once a week and wore a mask at work: a very modest burden."
"As a result of the Court’s decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated," Biden wrote, adding: "I call on business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities."
The high court's conservative majority determined in a 6-3 ruling that the Occupational Safety and Health Administration’s vaccine-or-test rule on businesses with at least 100 employees was an overstep in federal authority.
"OSHA has never before imposed such a mandate," the opinion reads. "Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here."
The rule would have impacted about 84 million workers nationwide.
"Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly," the opinion says. "Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category."
Liberal Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented from the vaccine-or-testing ruling for large businesses, saying the rule "falls within the core of the agency’s mission: to 'protect employees' from 'grave danger' that comes from 'new hazards' or exposure to harmful agents" and noting that OSHA estimates the rule would have saved 6,5000 lives and prevented more than 250,000 hospitalizations in six months.
"Yet today the Court issues a stay that prevents the Standard from taking effect," they continued. "In our view, the Court’s order seriously misapplies the applicable legal standards. And in so doing, it stymies the Federal Government’s ability to counter the unparalleled threat that COVID–19 poses to our Nation’s workers. Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies."
"When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions," the court's liberals wrote in their blistering dissent. "Today, we are not wise. In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible."
Lawrence Gostin, faculty director of the O'Neill Institute for National and Global Health Law and Georgetown University Law Center, agreed with the liberal justices' assessment, telling Spectrum News that the court's decision "will prolong the pandemic in the United States."
"The OSHA employer mandate was the single most effective policy for getting people vaccinated. Without a wide-reaching federal mandate, it's unlikely the national vaccination rate of just over 60% will improve," Gostin said. "We are way behind our peer nations. This Supreme Court's decision makes it hard to see how we will effectively combat Omicron, and future COVID variants."
"Even more concerning is that the Court is eviscerating the very ability of the federal government to protect Americans," Gostin continued. "The justices are overturning decades of precedent upholding federal public health powers."
Gostin said that "the conservative majority is willfully trying to make it hard, if not impossible, for the federal government to safeguard the public's health and safety, including worker safety, safe food and drugs, and environmental protection."
"COVID has taught us that the major risks Americans face, from infectious diseases to pollution, know no state boundaries. They are national problems requiring federal solutions," he added. "Especially in a crisis, states and citizens all turn to the federal government for solutions and resources. Those federal solutions have just been severely curtailed — not just for the current pandemic, but for future public health crises."
On the other hand, the court ruled that a vaccine requirement for employees at health care facilities that receive federal funding can go into effect. This mandate will cover nearly every health care worker in the country.
"Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella," the per curiam opinion reads. "As [Health and Human Services Secretary Xavier Becerra] explained, these pre-existing state requirements are a major reason the agency has not previously adopted vaccine mandates as a condition of participation."
"All this is perhaps why healthcare workers and publichealth organizations overwhelmingly support the Secretary’s rule," the justices continued. "Indeed, their support suggests that a vaccination requirement under these circumstances is a straightforward and predictable example of the 'health and safety' regulations that Congress has authorized the Secretary to impose."
Conservative Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett dissented from the ruling on the mandate for health care workers.
"If Congress had wanted to grant [the Centers for Medicare and Medicaid Services] authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly," Thomas wrote in his dissent. "It did not."
"These cases are not about the efficacy or importance of COVID–19 vaccines," he argued. "They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo."
As of Wednesday, more than 247 million Americans (nearly 75%) have received at least one dose of a COVID-19 vaccine, with more than 208 million (62.7%) fully vaccinated, according to data from the Centers for Disease Control and Prevention.
This is not the first time the Supreme Court has waded into the issue of vaccine mandates. In the 1905 ruling in the landmark case of Jacobson v. Massachusetts – in which a man sued over a $5 fine after refusing to get a smallpox vaccine when such vaccinations was mandated by the Cambridge, Massachuetts, board of health during an outbreak – the high court upheld states' authority to enforce mandatory vaccination laws, determining that individual liberty is not absolute.
"The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State," the court wrote in its decision.