Supreme Court appears open to CMS COVID-19 vaccination mandate: 10 things to know

Kelly Gooch and Marissa Plescia -

After about four hours of arguments Jan. 7, the Supreme Court's conservative majority appeared skeptical about vaccine-or-testing requirements for large businesses, while the court seemed more open to a vaccination mandate for certain healthcare workers, CNN and The New York Times reported.

A partial ruling could materialize quickly, as the vaccine-or-testing requirements for large businesses are set to take effect Jan. 10.

10 things to know:

1. At issue during oral arguments were challenges to the Biden administration's authority to impose the Occupational Safety and Health Administration's vaccinate-or-test mandate for businesses with 100 or more employees. The nation's highest court also considered CMS' vaccination mandate for eligible staff at healthcare facilities participating in the Medicare and Medicaid programs.

2. Justices seemed more likely to sustain the CMS mandate, with some justices saying it was aligned with other kinds of federal oversight and was supported by healthcare organizations across the country, The New York Times reported. 

3. Justice Brett Kavanaugh pointed out it is the states in opposition to vaccination mandates, not healthcare facilities, which he added are overwhelmingly in support of the mandate. "There's a missing element here," he said.

4. The more liberal justices questioned Jesus Osete, Missouri's deputy attorney general, about whether HHS could require handwashing, sanitation of equipment or preventing people with diphtheria entering hospitals. Mr. Osete said HHS could require it and Mr. Bryer responded: "Why can they say the one and not the other?" in reference to the CMS vaccination mandate.

5. Justice Sonia Sotomayor made a key distinction between the vaccination mandate for healthcare workers versus the vaccine-or-testing requirements for large businesses. For the vaccination mandate, healthcare workers would be required to get vaccinated for the facilities to receive federal funding, such as through Medicare and Medicaid. This distinction makes it a Spending Clause case, she said, which could give the federal government more authority on where it spends its money.

6. Conservative justices appeared more wary of vaccine-or-test rules for businesses, according to CNN. In a podcast released by the American Hospital Association, Sean Marotta, a partner at Hogan Lovells and AHA outside counsel, noted, "The court had concerns that the OSHA mandate was not targeted at workplace dangers but was rather a backdoor way to require most Americans to become vaccinated. And the court seemed to feel that was a power that was reserved to the states or maybe to Congress, but it shouldn't be given to an unelected federal agency." However, the court signaled it might be more willing to uphold a more targeted OSHA mandate, Mr. Golder said. 

7. Justice John Roberts hinted at a possible support of the vaccination mandate, according to CNN. "Why wouldn't OSHA have the authority to do the best approach possible to address what — I guess you would agree — is a special workplace problem?" he said.

8. Justice Elena Kagan was overwhelmingly in support of vaccination mandates for businesses. "This is the policy that is most geared to stopping all of this," Ms. Kagan said. "There is nothing else that will perform that function better,” to incentivize workers to “vaccinate themselves." Ms. Sotomayor also expressed being in favor of the mandate for businesses: “Why is a human being not like a machine if it’s spewing bloodborne viruses,” she said of OSHA's authority.

9. With both mandates, challengers raise questions over federal agencies' authority to issue the rules. They argue that the Labor Department and HHS never received authority from Congress to impose the mandates and that the CMS mandate will worsen healthcare staffing shortages, according to The Wall Street Journal.

10. President Joe Biden's administration is defending the mandates. According to the Journal, the federal government contends it is within its authority to impose vaccination requirements on facilities that accept Medicare and Medicaid funds. The Hill reported that the Justice Department argues that the 1970 law that established OSHA is clear that the policy "falls squarely within OSHA's statutory authority."

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