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SCOTUS Issues Split Decision in Two Vaccine Mandate Cases

WASHINGTON — The Supreme Court issued a split decision Thursday in two cases involving COVID-19 vaccine mandates issued by the federal government, ruling against a mandate for larger employers from the Occupational Safety and Health Administration (OSHA) while upholding a mandate for healthcare workers issued by the Centers for Medicare & Medicaid Services (CMS).

In the OSHA case, the high court wrote in an unsigned 6-3 opinion that “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. 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.”

Conversely, in the CMS case, “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it,” the court wrote in an unsigned 5-4 opinion. “At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have. Because the latter principle governs in these cases, the applications for a stay [on an injunction barring the mandate] … referred to the Court are granted.”

Sharp Questions at Oral Arguments

The OSHA case involved a lawsuit by the National Federation of Independent Business (NFIB) and other organizations seeking an injunction against the OSHA rule — known as an Emergency Temporary Standard, or ETS — requiring that all workers at firms with 100 or more employees either get vaccinated against COVID-19 or be tested weekly and wear a mask to work. The CMS case involved a lawsuit by the state of Missouri and others who were seeking to stop enforcement of a vaccine mandate issued by CMS that will apply to healthcare workers at any facility that accepts Medicare or Medicaid payment.

At oral arguments on the two lawsuits, Supreme Court Justice Stephen Breyer asked Ohio Solicitor General Benjamin Flowers — whose state is a plaintiff in the OSHA case — why, if OSHA can regulate things like fire risks, it can’t impose a ‘vaccine or test’ mandate. “The difference with the fire is that there’s something about the workplace, for example, not providing safety equipment to put out the fire,” said Flowers. He added, however, that “simply the fact that a risk exists outside the workplace, doesn’t mean you can’t address it when it’s inside the workplace. What we dispute is the idea that a risk that is ever-present in all places can be regulated simply because it’s also in the workplace.”

On the CMS case, Justice Elena Kagan asked Jesus Osete, the deputy attorney general of Missouri who was seeking to stop the mandate’s enforcement, why the Health and Human Services secretary didn’t have the authority to institute a vaccine mandate in healthcare facilities as a basic infection control measure. “All the secretary is doing here is to say to providers, ‘You know what? The one thing you can’t do is kill your patients. You have to get vaccinated so that you are not transmitting the disease that can kill elderly Medicare patients, that can kill sick Medicaid patients,'” Kagan said. “That seems like a pretty basic infection prevention measure.”

“You’re dealing specifically with the vaccine requirement that has historically been in the state’s province,” Osete responded. “And if Congress wants to give that authority to CMS, it has to do so in exceedingly clear language.”

Ideological Split — Mostly

The rulings appeared to be split mostly along ideological lines, with the exception of Justice Brett Kavanaugh, who was nominated by President Trump and is generally considered to be a conservative; he sided with the court’s three liberals on the CMS case but not on the OSHA case. Chief Justice John Roberts, who is generally seen as more middle-of-the-road, also sided with the majority in both cases. These rulings are not the end of the road for either of the mandates, which will both head back down to lower courts for more rulings; however, the CMS mandate will be able to take effect while it is being further adjudicated.

Healthcare groups and think tanks expressed a variety of opinions on the rulings. American Medical Association President Gerald Harmon, MD, in a statement applauded the decision on the CMS case but said he was “deeply disappointed” with the OSHA decision. “Workplace transmission has been a major factor in the spread of COVID-19,” Harmon said. “Now more than ever, workers in all settings across the country need commonsense, evidence-based protections against COVID-19 infection, hospitalization, and death — particularly those who are immunocompromised or cannot get vaccinated due to a medical condition.”

The American Hospital Association (AHA) was pointedly neutral about the ruling in the CMS case, with AHA president and CEO Rick Pollack noting in a statement that although the association has consistently supported vaccination for healthcare workers, “we also recognize that a vaccine requirement has the potential to create additional workforce staffing issues, at a time when our workforce is already exhausted by the many demands of COVID-19.”

Now that the ruling has been issued, however, “the AHA will work with the hospital field to find ways to comply that balances that requirement with the need to retain a sufficient workforce to meet the needs of their patients,” Pollack said. “We appreciate the recent guidance that extended the compliance deadline and offered enforcement discretion. We expect CMS to honor those commitments and continue to work closely with us to ensure that compliance is measured in a thoughtful and careful way that recognizes current circumstances.”

Bill Dombi, president of the National Association for Home Care & Hospice, said in a statement that the CMS ruling “brings home care a step closer to the essential clarity that is needed to determine what is required for compliance … We strongly encourage both Congress and the administration to quickly reach a conclusion so that affected healthcare businesses can focus on providing care.”

Kevin Roberts, president of the Heritage Foundation, a right-leaning think tank, applauded the OSHA decision. “The federal government has no business dictating the private and personal healthcare decisions of tens of millions of Americans, nor does it have the authority to coerce employers into collecting protected healthcare data on their employees,” he said in a statement. “By striking down the Biden regime’s unlawful COVID-19 vaccine mandate, the Supreme Court has signaled its agreement with this basic tenet of a well-functioning and free society.”

President Biden Weighs In

President Biden applauded the decision in the CMS case. “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,” he said in a statement. “It will cover 10.4 million healthcare workers at 76,000 medical facilities. We will enforce it.”

The president said he was disappointed by the decision in the OSHA case, adding, “The court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy. 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.”

  • Joyce Frieden oversees MedPage Today’s Washington coverage, including stories about Congress, the White House, the Supreme Court, healthcare trade associations, and federal agencies. She has 35 years of experience covering health policy. Follow

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