The Supreme Court has blocked OSHA’s COVID–19 vaccination and testing mandate but allowed most healthcare workers to remain subject to such mandates. The Court ruled 6-3 in National Federation of Independent Business v. Department of Labor, effectively blocking the OSHA mandate, and 5-4 in Biden v. Missouri, with Chief Justice Roberts and Justice Kavanaugh joining the Court’s left bloc solidifying the mandate against many healthcare workers.
In regards to the OSHA mandate, Justice Neil Gorsuch delivered an opinion, joined by Justices Thomas and Alito, affirming that OSHA does not possess the power to order the broad mandate:
“The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA. In saying this much, we do not impugn the intentions behind the agency’s mandate. Instead, we only discharge our duty to enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans. Respecting those demands may be trying in times of stress. But if this Court were to abide them only in more tranquil conditions, declarations of emergencies would never end and the liberties our Constitution’s separation of powers seeks to preserve would amount to little.“
Justice Breyer delivered a dramatic dissenting opinion, joined by Justices Sotomayor and Kagan, arguing that the Court’s lack of healthcare expertise disqualifies them from making a decision on the case:
“Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID-19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes? … When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions. Today, we are not wise.“
In Biden v. Missouri, the issue of whether the Centers for Medicare and Medicaid Services (CMS), which fall under the Department of Health and Human Services, can require vaccine/testing mandates for their healthcare providers was in question. Five justices (Roberts, Breyer, Sotomayor, Kagan, and Kavanaugh) agreed that CMS does possess that authority. The mandates under CMS do allow for medical and religious exemptions.
Justice Thomas issued a dissenting opinion joined by Justices Alito, Gorsuch, and Berrett.
“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. Because the Government has not made a strong showing that Congress gave CMS that broad authority, I would deny the stays pending appeal. I respectfully dissent.”
In the OSHA case, the dissenting trio of justices erected a waving strawman argument paired with an emotional appeal and a red herring. This rich fallacy-saturated concoction of an opinion shouldn’t be shocking though, considering the slew of misinformation projectiled from the high bench during oral arguments earlier this month. By making this decision about their experience in healthcare, or lack thereof, they suggest that their experience in healthcare was even in dispute. But it wasn’t. Of course they aren’t healthcare experts, nor did anyone suggest anything about that. They weren’t called upon to make a healthcare decision, they were called upon to make a constitutional decision. They were making a call as referees in the constitutional arena to determine the limits of OSHA’s power.
It is dishonest for the minority to suggest that this was about making a healthcare decision. Especially considering that the majority opinion stated that the power to make such a decision perhaps does exist but through different federal venues.
If the Court’s lack of healthcare experience disqualifies them from ruling on healthcare, as the minority suggests, it is interesting that the three justices in the minority did not consider themselves unqualified when they ruled in favor of Obamacare in 2011.
Personal autonomy is just that — personal and autonomous. The fact that a vaccine that has largely been breached by variants of COVID-19 and has no integrity with preventing transmission is still being forced on citizens is appalling. Whether you receive a vaccination or not is far from this matter. There are solid arguments on both sides of the argument of whether the vaccine is effective in reducing the risk of death from COVID-19, and that nuance alone should cause both sides of this fight to be charitable and respectful of the opposing position.
But this is about breaching the sacred nature of bodily autonomy and personal conscience. This is about the fact that courts are torn on whether the federal government has the authority to force someone to inject themselves. Unvaccinated and vaccinated alike have come out in droves against these mandates, because just as the vaccinated made a personal choice to receive their vaccines, such a choice should be rendered fairly towards everyone despite private or government capacities.