Justices appear likely to narrowly uphold CMS vaccine mandate on hold in half of US

The Supreme Court appears likely to narrowly uphold the Biden administration’s health worker vaccine mandate but may limit which facilities are affected.

Justices heard oral arguments Friday on the vaccine mandate, which has been put on hold by a lower court’s ruling that affected half of the country. The Biden administration appealed to the Supreme Court for an emergency ruling to lift the stay and let the Centers for Medicare & Medicaid Services (CMS) enforce the mandate.

Several of the court’s six conservative justices appeared to be amenable to the mandate alongside enthusiastic support among the court’s liberal wing. Several other conservatives questioned the agency’s authority to install the mandate as a condition for participation in Medicare and Medicaid.

Chief Justice John Roberts said that a mandate for healthcare workers appears necessary but seemed skeptical of a wider mandate the Occupational Safety and Health Administration (OSHA) is aiming to apply to certain businesses that calls for workers to either be vaccinated or face weekly testing. The court heard oral arguments on the OSHA mandate Friday.

“What could be closer to addressing the COVID-19 problem to health than healthcare?” Roberts said. “People already get sick when they go to the hospital, but if they go and face COVID-19 concerns that is much worse.”

Justice Brett Kavanaugh also noted that provider groups were not against the facility mandate, which he said appeared odd as they are the ones facing the mandate. Several states are challenging the mandate, and officials said they were worried about rural facilities losing staff when they are already under a labor shortage.

“This mandate will close the door of many of these rural facilities and deprive our residents of healthcare,” said Jesus Osete, deputy attorney general for Missouri.

Kavanaugh asked Osete why CMS could mandate as a condition of participation infection control procedures like washing hands or putting on gloves but not a vaccine. Osete responded that unlike those measures, a vaccine is a “permanent medical procedure that cannot come off after work is over.”

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Osete added that it has traditionally been up to the states to install vaccine mandates, and Congress needs to be clear if it is taking that power away.

But several justices shot back that the mandate appeared to be within the Department of Health and Human Services’ (HHS') secretary’s authority to protect the health and safety of patients in Medicare and Medicaid.

“All they are doing to providers is saying the one thing you can’t do is kill your patients,” said Justice Elena Kagan. “You have to get vaccinated to ensure you are not transmitting the disease that can kill your patients.”

Justice Stephen Breyer added that the secretary also has some discretionary power and that the pandemic has created an extraordinary circumstance.

“It seems to me that every minute these things are not in effect thousands more people are getting this disease and we have some discretionary power,” he said. “Therefore, you tell me I can’t take that into account is fairly unbelievable.”

Kagan said any labor shortages need to be weighed against the importance of ensuring the health and safety of Medicare and Medicaid patients, which the HHS secretary is “obligated to protect.”

But some conservative justices appeared to be more skeptical of the mandate. Justice Neil Gorsuch said CMS could also implement regulations about exercise regimens or sleeping habits in the name of health and safety.

Justice Amy Coney Barrett also had questions about the authority CMS has over the facilities, namely that the secretary can impose conditions to ensure the health and safety of patients. A small subset of providers, such as end-stage renal disease treatment providers, doesn’t have that provision in the statute.

Brian Fletcher, the U.S. principal deputy solicitor general, responded that the statute still gives the secretary broad authority to set conditions for participation even if the statute for those don’t specifically say health and safety.

However, if the court believes that some of the provisions should be lopped off, that doesn’t mean the rest of the mandate shouldn’t stand.

He added that most of the statutes HHS is relying on cover 97% of the workers affected by the mandate.

“When you look at it in that context, it is clear this is a health and safety requirement,” he said.