On Friday, January 7, 2022, the Supreme Court heard arguments for and against the provision the Biden administration used to impose mandatory vaccination on all federal employees, healthcare workers, and businesses with more than 100 workers-a total of more than 100 million people nationwide. Based on the challenges raised by the conservative justices, the Supreme Court could well overturn mandatory vaccination before it goes into effect.
Last November 4, Biden announced the implementation of mandatory vaccination through a ‘emergency temporary standard’ from the Occupational Safety and Health Administration (OSHA) that would cover all healthcare employees working in clinics that participate in the Medicaid and Medicare public health programs—about 84 million employees, and all those businesses including the private sector that have more than 100 employees—an estimated 17 million people in this group.
Those who were not vaccinated would have to submit a negative test weekly starting Jan. 4.
The measure was met with resistance from both the private sector and health care workers, and there were dozens of lawsuits to overturn it.
The federal court of the Fifth Circuit annulled the rule, but the government appealed and the Sixth Circuit Court of Appeals reinstated it, and now it is all in the hands of the Supreme Court.
Liberal judges uphold the Biden administration’s decision
While the hearing in which the justices hear arguments is not a conclusive definition of what the ruling will be, based on the questions or challenges they ask for, it can be inferred what the outcome might be, especially when there is a majority that has opinions in the same direction.
Of the nine justices on the Court, the three considered liberal or progressive, Elena Kagan, Sonia Sotomayor and Stephen Breyer, made it clear that the Biden administration’s decision to use the OSHA rule to force people to get vaccinated was justified given the severity of the pandemic in recent times.
Judge Sotomayor even said that a ‘national regulation’ was needed with authority to override those states that banned mandatory vaccination, such as Florida and Texas, and as an argument she cited some pandemic figures.
“We have hospitals that are almost at full capacity with people severely ill on ventilators. We have over 100,000 children, which we’ve never had before, in serious condition, many on ventilators,” the judge said.
However, Sotomayor’s statements were quickly ‘fact checked’ by social media pundits who clarified that according to CDC data, there are only 3700 children hospitalized for Covid nationwide and as with other strains of the virus, children continue to show greater resistance to the disease and none have had severe symptoms.
Justice Breyer also took a much more radical stance in favor of the OSHA rule, saying he found it ‘unbelievable’ that vaccination is not mandatory given the number of deaths and hospitalizations caused by the pandemic.
When asked about the number of employees who would leave their jobs rather than get vaccinated or have to be tested every week, the liberal judges said it was a bigger gain to force everyone to get vaccinated than to lose a third of the affected workers.
But one of the lawyers leading the lawsuits against the OSHA rule, Dr. Kobach, refuted the data presented by the progressive judges by claiming that the number of workers willing to quit is nearly 50 percent.
Conservative judges prefer that Congress or the states decide for themselves
The conservative justices’ arguments revolved around the OSHA rule not being necessary when the states themselves have—and already have—the authority to dictate measures to mitigate the pandemic, and both the private sector and healthcare employees would be covered in this way.
Justice Samuel Alito noted that protecting the vaccinated was not the starting point of the measure, but rather, what the government is seeking with the rule is to protect the unvaccinated.
If that is the case, the OSHA rule is difficult to justify, since those unvaccinated workers have already analyzed the risks and are willing to bear them.
He also emphasized that mandatory vaccination “imposes a risk” because of the potential adverse health consequences that many people suffer after receiving the Covid vaccine.
Judge Gorsuch implied that regulating vaccination nationwide was more the role of Congress and not the federal government. He also asserted that OSHA standards were traditionally never used to regulate mandatory vaccination.
For his part, Kavanaugh also reinforced the idea that it is Congress that has usually designed laws related to mass vaccination and that OSHA therefore never had the authority that the Biden administration has granted it.
The opinion of Chief Justice Roberts, who in many instances set aside his conservative views to opine in favor of the liberal justices, was almost blunt.
“I don’t think you can say that [the OSHA statute] was specifically addressed to the problem. That was fifty years ago when Congress acted. I don’t think it had COVID in mind.” He also asserted that it was more appropriate to let Congress and the states self-determine on the matter rather than the federal bureaucracy.
Roberts’ opinion is especially important because if he decides to overturn the measure, both Justice Amy Coney Barrett, who was one of those unsure which way to go, and the other conservative justices will support his decision, leaving the three liberal justices in favor, isolated.