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Supreme Court blocks Biden’s vaccine-or-test mandate for large private companies

By: Nina Totenberg | NPR
Posted on: Thursday, January 13, 2022

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WASHINGTON, D.C. (NPR) — The U.S. Supreme Court struck down the Biden administration’s vaccine-or-test rule Thursday, declaring that the Occupational Safety and Health Administration had exceeded its authority.

But at the same time, the court upheld a regulation issued by the Centers for Medicare and Medicaid Services that mandates vaccines for almost all employees at hospitals, nursing homes and other health care providers that receive federal funds.

The vote to invalidate the vaccine-or-test regulation was 6 to 3, along ideological lines.

“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 majority said in an unsigned opinion. “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.”

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, the court’s three liberals, dissented. In an opinion written by Breyer, they said the conservative majority “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.”

The regulation struck down by the court would have applied to some 84 million private sector employees and would have required all businesses with 100 or more workers to either be vaccinated, with the federal government footing the bill, or be tested weekly.

The decision to invalidate the regulation comes as COVID-19 cases soar. Earlier this week, a record 1.4 million new cases were reported in one day. Hospitals across the country have been swamped — mainly with unvaccinated patients. The situation has been serious enough to prompt some governors to call out the National Guard to help, even as governors in some other, Republican-dominated states have made vaccine mandates illegal.

In stark contrast to the decision in the OSHA case, the court voted 5 to 4 in the CMS case to uphold mandatory vaccinations for Medicare and Medicaid providers. The court’s three liberals were joined by Chief Justice John Roberts and Justice Brett Kavanaugh.

The court said that the vaccine mandate for health care workers was, unlike the OSHA regulation, justified as just the kind of detailed regulations that the Centers for Medicare and Medicaid Services has long imposed as a condition for health care providers getting federal funds.

In addition, the court said the regulation serves to protect patients from being exposed to greater risks when they are in hospitals, nursing homes, rehabilitation facilities, ambulatory surgical care centers and other such medical providers.

“The rule thus fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm,” the court wrote in a separate the unsigned opinion. “It would be the very opposite … for a facility that is supposed to make people well to make them sick with COVID–19,” the majority said, noting that in many facilities without a vaccine mandate, “35 per cent or more of staff remain unvaccinated.”

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett dissented. All four signed two separate dissents, one by Thomas and one by Alito.

“These cases are not about the efficacy or importance of COVID–19 vaccines. 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,” Thomas wrote in his dissent.