The court – during nearly four hours of oral argument in two very urgent cases – appeared to fully understand the seriousness of the moment for American public health, but many judges expressed reservations about the power of the federal government to impose such policies at the national level.
The problem is a pair of emergency regulations issued late last year by the Biden administration and challenged by a coalition of states and Republican-led business groups.
A rule, set by the Occupational Safety and Health Administration and due to go into effect Monday, requires private employers with 100 or more employees to ensure they are vaccinated or to subject unvaccinated persons to a mandatory mask and mask policy. test, at the expense of the company.
The Department of Health and Human Services has separately ordered all healthcare facilities that treat Medicare and Medicaid patients with federal funding to require immunizations for all workers and staff, with limited exemptions allowed for reasons religious or health. The policy is in effect in about half of the country after a federal appeals court ruled it in other areas.
Combined, the two policies would cover about 100 million Americans, officials said.
“Traditionally, states have been responsible for overseeing immunization warrants. I just dismissed a challenge in New Mexico,” Judge Neil Gorsuch said. “Why isn’t this a major issue left to States and Congress? “
Chief Justice John Roberts shared the concern: “This sounds like the sort of thing that states will respond to or should be or – and Congress should respond or should be, rather than agency by agency, the federal government. , the executive power, acting alone.
Twenty-two states already mandate COVID-19 vaccination for healthcare workers while six states explicitly ban them, according to the National Academy for State Health Policy. No state has a similar requirement for private companies.
“Small business owners have told us that they value their freedom to do business their own way, and they feel it really is an infringement of that right and that freedom,” Karen Harned, executive director of the National Federation of Independents. Business, ABC News Live told. “It is Congress that is accountable to the people, not the heads of agencies that are not elected.”
All three of the court’s liberal judges have expressed their strong support for the rules.
“Almost a million people have died,” Judge Elena Kagan said. “I don’t want to be dramatic here. I’m just stating the facts. And this is the best policy to stop it all.”
More than 205 million Americans have been fully vaccinated against COVID-19, but tens of millions more eligible have not received their first vaccine, 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 that decision, ”said Justice Stephen Breyer. “Are you doing this now, to say that it is in the public interest in this situation to stop this vaccination rule with almost a million new cases every day? I mean, to me, I would find that incredible. “
Judge Sonia Sotomayor, who joined the arguments remotely from her apartments inside the building over concerns related to Omicron, dismissed the challengers’ concerns about labor shortages, noting that the virus is already sidelining workers in key industries.
“Catching COVID keeps people out of the workplace for a long time,” she said.
“And, by the way, there is no mandate here for vaccines,” she added, alluding to the option of masking and testing for those who refuse an injection.
Lawyer Scott Keller, representing the National Federation of Independent Businesses, which opposes the rule, replied: “States can act, private companies have acted at historic levels. This will cause massive economic change in the country, billions upon billions of non – recoverable costs. “
The arguments have unfolded as omicron cases soar and hospitals nationwide fill up – conditions that have also rocked court operations.
For the first time, all but one of the judges – Gorsuch – wore masks when they entered the chamber. Most kept their faces covered when not speaking. And in another first for the court, two attorneys presenting arguments in the joined cases by telephone, at least one of whom was recently diagnosed with COVID positive.
Solicitor General Elizabeth Prelogar has made a strong case that the government has a moral and legal obligation to protect vulnerable workers and patients from Medicare and Medicaid in facilities that receive federal funds.
“Workplace exposure to COVID-19 is the greatest threat to workers in OSHA history,” she said. The agency estimated that its vaccine or test rule would save 6,500 lives and avoid 250,000 hospitalizations in the first six months alone.
Several Conservative justices, including Justice Amy Coney Barrett, have suggested that the policy, if well-intentioned, was just too broad. Barrett questioned aloud about landscaping companies, for example, that work entirely outdoors and face a significantly lower risk of virus transmission. She also asked how long the agency’s emergency authority would last given that COVID could become rampant.
Prelogar argued that there are exceptions for employees who work alone or from home and that Congress has explicitly authorized OSHA to protect the health and safety of workers in the face of “serious danger.” But many court conservatives did not believe it.
“It was 50 years ago that you say Congress acted. I don’t think you were thinking about COVID,” Roberts said of the 1970 Occupational Safety and Health Act. “It was almost closer to the Spanish flu than it is to today’s problem.”
Judge Samuel Alito argued that unvaccinated Americans, who face the most serious threat of COVID infection, have chosen to accept the risk and should be allowed to do so. He said the vaccine warrants force Americans to take a potential risk to their health that may be unwanted.
“I am not saying that vaccines are dangerous. I am not contesting it in any way,” he insisted. “[But] there is a risk, isn’t it? … Has OSHA ever imposed any other safety regulations that impose additional risk on the employee? “
Justices Brett Kavanaugh and Barrett seemed slightly more receptive to the mandate of the HHS vaccine for healthcare workers. Kavanaugh noted that it is the states that challenge the rule, not the facilities or the workers themselves that raise the objections. “Where do regulated parties complain about regulation? ” He asked.
Barrett suggested that the legal requirements for HHS to ensure long-term care facilities have infection control programs appear to explicitly authorize the mandate, but she was less secure from other types of facilities.
“There is an expectation on the part of patients if they come into a healthcare system for treatment, whether for COVID or some other underlying disease, that they are surrounded by those who are vaccinated. We don’t want to create more risk for vulnerable people and in hospital settings, ”said Dr. John Brownstein, epidemiologist and medical contributor to ABC News.
The group of states contesting the requirement say the rule will wipe out rural health centers that already have limited staff.
“All the secretary does here is tell providers the only thing you can’t do is kill your patients,” Kagan told Jesus Osete, a lawyer representing states challenging the agents rule. health.
“We’re dealing specifically with a vaccine requirement that, again, has always been in the state province,” Osete responded. “And if Congress is to give that authority 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 that judges need to see concerns all of us, but does it mean that they are ready – at least a majority of them are ready – to give the federal government the power to act here?” , I think that’s a separate issue, “said Kate Shaw, law professor at Cardozo and legal analyst at ABC News.” This is a very conservative, newly formed tribunal that is quite skeptical of the federal power as a whole, so I think there’s a good chance one or both of those policies will be overturned. “