Judges squabble over vaccine mandates as COVID opposes Supreme Court

The court – during nearly four hours of oral arguments in two urgent cases – seemed to fully understand the importance of the present moment for American public health, but many judges were reticent about the matter. the federal government. authority to impose policies nationwide.

At issue is a pair of emergency regulations enacted late last year by the Biden administration and challenged by a coalition Republican-led states and business groups.

One rule, by Occupational Safety and Health Administration and scheduled to take effect on Monday, requires private employers of 100 or more employees to ensure they are vaccinated or follow a mandatory masking and testing policy, at their own expense. of the company.

The Department of Health and Human Services separately ordered all health care facilities that treat Medicare and Medicaid patients with federal funding to require all workers and employees to be vaccinated, with limited exemptions allowed for religious or health reasons. The policy went into effect in nearly half the country after a federal appeals court halted it in other regions.

Officials said a combination of the two policies would cover about 100 million Americans.

“Traditionally, states have been responsible for overseeing immunization missions. I just turned down a challenge to a challenge in New Mexico,” Justice Neil Gorsuch said. “Why isn’t this a key question posed to the states and Congress?”

Chief Justice John Roberts shared the concern: “It looks like something like the states will either react or – and Congress should react or should have, rather than by the regulator, the federal government, executive branch, acting alone.”

22 states have authorized COVID-19 Vaccination for healthcare workers while six states explicitly ban them, according to the National Academy of State Health Policy. No state has made similar requirements for private enterprises.

Karen Harned, executive director of the National Federation of Independent Business, told ABC News Live. “It is the National Assembly that should be held accountable to the people, not unelected agency officials.”

The court’s three liberal judges have voiced strong support for the rules.

“Nearly a million people have died,” said Justice Elena Kagan. “I don’t mean drama here. I just want to make it clear. And this is the policy to stop all of this.”

More than 205 million Americans have been fully vaccinated against COVID-19, but tens of millions more are eligible yet to receive their first shot, according to the Centers for Disease Control and Prevention.

“Three-quarters of a million new cases yesterday! That’s 10 times more than when OSHA made this ruling,” said Justice Stephen Breyer. “Is that what you’re doing now, in the public interest in this situation, to stop this vaccination regulation with almost a million new cases a day? I mean, to me, I would find that hard to believe.”

Justice Sonia Sotomayor, who participated in the debate remotely from rooms inside the building over concerns about omicrons, dismissed challengers’ concerns about labor shortages, noting that the virus has eliminated work employees in key industries.

“The catch of COVID keeps people out of the workplace for a long time,” she said.

“And, by the way, there’s no mandate here for vaccines,” she added, alluding to the face covering option and testing for people who refuse to get vaccinated.

Attorney Scott Keller, representing the National Federation of Independent Businesses, opposes the regulation, replying: “States can act, private businesses have acted on historic levels. This will cause a major economic shift in the country, billions upon billions of costs cannot be recovered. “

The arguments come as omicron cases are skyrocketing and hospitals are filling up across the country – conditions that also confound court operations.

For the first time, all but one of the judges – Gorsuch – put on masks as they entered the room. Most cover their faces when not speaking. And in another first for the Court, two attorneys presenting arguments in cases joined by phone, with at least one person recently receiving a positive COVID diagnosis.

Solicitor General Elizabeth Prelogar strongly argued that the government has a moral and legal obligation to protect vulnerable Medicare and Medicaid workers and patients in federally funded facilities.

“Exposure to COVID-19 on the job is the single biggest threat to workers in OSHA’s history,” she said. The agency has estimated that the trial or vaccine rule would save 6,500 lives and prevent 250,000 hospitalizations in the first six months alone.

Some conservative judges, including Justice Amy Coney Barrett, argued that the policy, if well-intentioned, was simply too broad. For example, Barrett wondered about landscaping businesses that operate entirely outside and face a significantly lower risk of virus transmission. She also questioned how long the agency’s emergency department would last that COVID could become endemic.

Prelogar argues that there are exceptions for employees working alone or from home, and that Congress has explicitly authorized OSHA to protect worker health and safety from “serious hazards. ” But many court conservatives didn’t buy it.

“It was 50 years ago when you said that Congress acted. I don’t think you were thinking about COVID,” Roberts said of the Occupational Safety and Health Act of 1970. “That’s pretty close to the Flu Pandemic. Spain than with today’s problem.”

Justice Samuel Alito argued that unvaccinated Americans, facing the most serious threat of contracting COVID, chose to take the risk and should be allowed to do so. Vaccine mandates that force Americans to accept potential risks to their health may not be desirable, he said.

“I’m not saying vaccines are unsafe. I’m not against that in any way,” he insisted. “[But] risky, right? … Has OSHA ever imposed any other safety regulations that pose an additional risk to employees? “

Justice Brett Kavanaugh and Barrett seem more receptive to the task of administering HHS vaccines to healthcare workers. Kavanaugh noted that it is the states that are challenging the rule, not the establishments or the workers themselves that are making the objections. “Where are regulated parties complaining about regulation?” he asks.

Barrett suggests that the legal requirements that HHS ensure long-term care facilities have infection control programs appear to allow for explicit authorization, but she is more uncertain about other types of facilities. .

“There’s an expectation on the part of patients if they come to the health care system for treatment, whether it’s COVID or some other underlying condition, that they’re surrounded by people who have been vaccinated. I don’t want to create any more Dr. John Brownstein, an epidemiologist and medical associate for ABC News, said.

The group of states challenging the requirement said the rule would eliminate rural health care centers that already have limited staff.

“All the secretary is doing here is telling the providers that one thing you can’t do is kill your patients,” bluntly Kagan told Jesus Osete, an attorney representing the states that challenge the medical staff’s rule.

“We are specifically addressing a request for a vaccine that was previously available in the province of the state,” Osete replied. “And if Congress wants to give that power to… the federal agency here, it has to do so in extremely clear language.”

Both sides urged the judges to act quickly.

“This is an issue the judges must see that touches all of us, but does that mean they are willing – at least most of them are willing – to let the federal government act. Here, I think, that’s a separate question,” said Kate Shaw, a Cardozo Law professor and ABC News legal analyst. “This is a very conservative, newly established court that is fairly skeptical of great federal power, so I think it’s highly likely that one or both of these policies could be scrapped.”

https://abcnews.go.com/Politics/justices-spar-vaccine-mandates-covid-jolts-supreme-court/story?id=82143525 Judges squabble over vaccine mandates as COVID opposes Supreme Court

Emma Bowman

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