In hearings on Friday, the Supreme Court appeared to lean toward blocking the Biden administration's vaccine mandate for businesses with at least 100 employees, but it seemed more likely to allow a separate mandate for health care workers.

The Covid-19 vaccine mandate: Here's what's in CMS' new rule

Background

In November, the Occupational Health and Safety Administration (OSHA) issued an interim final rule that would require U.S. employers with 100 or more employees to mandate Covid-19 vaccination for their workers.

Separately, CMS released its own rule that would require Covid-19 vaccinations for health care workers in facilities participating in Medicare and Medicaid.

Resource library: How health care organizations can navigate vaccine mandates and other issues

Since the rules were first published, both have faced several legal challenges, particularly from businesses, religious institutions, and GOP-led states, and both have been blocked by federal appeals courts in different states. Now, these legal challenges have been appealed to the Supreme Court.

Supreme Court weighs in on OSHA mandate

During a hearing Friday, Ohio Solicitor General Benjamin Flowers argued that OSHA lacked the authority to enact a Covid-19 vaccine requirement because Covid-19 isn't exclusively a workplace problem.

"Simply the fact that a risk exists outside the workplace doesn't mean you can't address it when it's inside the workplace," Flowers said. "What we dispute is that a risk that is ever present in all places can be regulated simply because it's also in the workplace."

However, U.S. Solicitor General Elizabeth Prelogar argued the statute that authorized OSHA specifically mentions vaccines, and she added that there is an urgent need for action. "We think that there are lives being lost every day," Prelogar said.

The Court's more liberal justices appeared sympathetic to that argument. Justice Stephen Breyer, an appointee of President Bill Clinton, appeared in favor of OSHA's mandate and noted the burden Covid-19 cases are placing on hospitals throughout the country.

"There are three quarters of a million new cases yesterday. … That's ten times as many as when OSHA put this rule in," he said. "The hospitals are today, yesterday, full almost to the point of the maximum they've ever been with this disease. … I would find it unbelievable that it could be in the public interest to suddenly stop these vaccinations."

"This is a pandemic in which nearly a million people have died. It is by far the greatest public health danger that this country has faced in the last century," said Justice Elena Kagan, an appointee of President Barack Obama. "More and more people are dying every day. … There's nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves."

However, the Court's more conservative justices—who make up a majority of the court—were more skeptical.

Justice Clarence Thomas, an appointee of President George H.W. Bush, questioned whether the danger posed by Covid-19 was the type of crisis necessary for OSHA to use an expedited process to issue an "emergency temporary standard" mandating vaccines.

"The vaccine's been around quite some time. Covid's been around even longer," Thomas said. "The government could have had notice and comment."

Chief Justice John Roberts, an appointee of President George W. Bush, suggested that states and Congress are better suited to address Covid-19 in the workplace than a federal agency is. "This is something that federal government has never done before," he said, adding that the mandates were "a workaround" to congressional action.

Conservative justices appear more open to CMS mandate

In arguing against CMS' mandate, Missouri Deputy Solicitor General Jesus Osete said that, without an injunction, "rural America will face an imminent crisis. This mandate will close the doors of many of these rural facilities. … That is going to be devastating."

Osete said he does not believe the mandates "met their burden of showing a likelihood of success on the merits that those were lawful exercises of authority. Even in situations where [HHS Secretary Xavier Becerra] desires to prevent the spread of Covid, it cannot act unlawfully."

Justices Kagan and Breyer said the power to mandate vaccinations among health care workers seemed to fit within CMS' power to implement infection control measures.

"All the secretary is doing here is to say to providers, 'You know what? The one thing you can't do is kill your patients. You have to get vaccinated so that you are not transmitting the disease that can kill elderly Medicare patients, that can kill sick Medicaid patients,'" Kagan said. "That seems like a pretty basic infection prevention measure."

The Court's more conservative members also appeared sympathetic to that reasoning. Justice Roberts said he believed Becerra was entitled to determine what controls HHS imposes on providers.

"I'm not saying there's not some limit there. I don't know why a provision addressing an infectious disease of this scope is beyond the secretary's determination that the mandate at issue here is necessary," Roberts said.

Meanwhile, Justice Brett Kavanaugh, an appointee of President Donald Trump, suggested it was odd that the lawsuit against the CMS requirement was filed by states, rather than by the hospitals and nursing homes covered by the rule.

"The people who are regulated are not here complaining about the regulation," Kavanaugh said, adding that hospitals and health care groups "overwhelmingly appear to support" the mandate. "What are we to make of that?" (Gerstein/Mueller, Politico, 1/7; Frieden, MedPage Today, 1/7; Baker, Axios, 1/7; Liptak, New York Times, 1/7; Sherman/Gresko, Associated Press, 1/7)