The U.S. Supreme Court on Friday heard nearly four hours of oral arguments about two Biden administration emergency mandates that would require, with few exceptions, COVID-19 vaccination of employees of large businesses and hospitals and clinics that receive federal funding.
Montana is part of the coalition of states and businesses challenging both federal actions. The first, enforced by the Occupational Health and Safety Administration, directs businesses of 100 employees or more to implement a vaccination or regular testing requirement for workers. The second would implement a nearly universal COVID-19 vaccination requirement for employees at health institutions that receive federal funding, and would be regulated by the Centers for Medicare and Medicaid.
The OSHA requirement is estimated to apply to 84 million employees. The CMS mandate applies to approximately 17 million workers.
Friday’s hearing hinged on whether Congress has permitted the executive branch to enforce such health requirements for workers, or if the Biden administration overstepped its authority.
Regarding the mandate for health care employees, Missouri Deputy Attorney General Jesus Osete said the new rule is unique from other safety requirements set by the federal government.
“Masks can come off. Gloves can come off … taking a vaccine is a permanent medical procedure that cannot come off after work is over,” Osete said. “They’re materially different conditions, materially different procedures at stake.”
Osete also argued that the health care worker mandate would be “devastating” to the public interest, saying some providers would resign their positions rather than be vaccinated, leaving medical patients with limited access to treatment.
Attorneys for the government said both measures were appropriately drafted and critical to protecting the health of large swaths of the nation’s workforce. U.S. Principal Deputy Solicitor General Brian Fletcher also rebutted the argument that vaccines are distinct from other safety requirements.
“I just don’t think that can be squared with the context of the health care industry,” Fletcher said. “Vaccination requirements are common throughout our society. They’re particularly common for health care workers … you have virtually the uniform view of the medical community telling you that this is the best way to protect patient health and safety.”
In questioning, the court’s three liberal justices seemed to agree with the government’s presentation, suggesting that such requirements are appropriate to protect workers during a deadly pandemic.
“All the [Department of Health and Human Services] is doing here is to say to providers, ‘You know what? Basically the one thing you can’t do is to kill your patients,’” said Justice Elena Kagan. “‘You have to get vaccinated so that you’re not transmitting the disease that can kill elderly Medicare patients, that can kill sick Medicaid patients.’ I mean, that seems like a pretty basic infection prevention measure.”
But Chief Justice John Roberts pressed the government’s lawyers to explain why individual executive agencies should be responsible for implementing precautions against a virus that impacts most of society.
“It seems to me that the government is trying to work across the waterfront and it’s just going agency by agency,” said Roberts. “It sounds like the sort of thing that states will be responding to, or should be, and that Congress will be responding to, or should be, rather than agency by agency … the executive branch acting alone.”
Montana Attorney General Austin Knudsen and Gov. Greg Gianforte have stressed that the federal mandates run counter to the Montana Legislature’s 2021 law, House Bill 702, prohibiting employers from requiring employee vaccination. That law is being challenged in state and federal courts by plaintiffs including the Montana Medical Association.
“Our course out of this virus doesn’t come from federal mandates. It will come from people and communities throughout our country exercising personal responsibility and sound judgment,” Gianforte said in a Tuesday press conference. “We will continue to defend the rights of Montanans against the heavy-handed federal government.”
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