‘What pandemic?’ SCOTUS downplays Covid-19

FFRF Supreme Court Building

The Freedom From Religion Foundation is calling attention to extreme positions taken by vaccination opponents as well as by some of the justices on the Supreme Court, who heard oral arguments today in two pivotal cases involving federal vaccine policies.

“Some businesses and many states, largely led by individuals with religious agendas, have made great efforts to undercut science and our nation’s promotion of vaccinations to fight against the pandemic,” warns Annie Laurie Gaylor, FFRF Co-President. 

The first case heard by the court involves an OSHA rule that requires employers with 100 or more employees to implement vaccine-or-test workplace policies. The U.S. 6th Circuit Court of Appeals sided with the Biden Administration by lifting a prior court decision blocking the federal rule. A group of business associations and states filed an emergency petition with the Supreme Court to again block the rule. 

Justice Elana Kagan began the hearing by pointing out the necessity for the OSHA rule, noting, “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.” 

Unfortunately, some of the justices demonstrated a lack of concern for the extreme public health risks posed by the Covid-19 pandemic. At some points, conservative justices questioned why the pandemic would justify OSHA taking action. Justice Neil Gorsuch, for instance, noted that OSHA does not mandate a flu vaccine each year, despite hundreds of thousands of annual deaths attributed to the flu. (Note: Typically tens of thousands of vulnerable Americans die from flu each year, not hundreds of thousands.) Justice Samuel Alito brought up the supposed “risks” to people receiving vaccinations and asked whether OSHA has ever imposed a safety measure that imposes a “risk.”

The second case involves a vaccine requirement by the Centers for Medicare and Medicaid for health facilities receiving funding under its programs. The justices seemed more inclined to allow the vaccination rules in the health care context. 

Kagan again asked tough questions. She surmised that the agency was telling providers, “Basically, the one thing you can’t do is to kill your patients.” She trenchantly added that such a statement “seems like a pretty basic infection prevention measure.”

Chief Justice John Roberts asked the attorney for Louisiana whether she agreed with the district court’s statement that “Covid no longer imposes the dire emergency it once did?” Without answering the question, she replied, “Those are shifting sands.” Ironically, she was calling in remotely for the argument because she had tested positive for Covid-19, as had the attorney for Ohio, who also called in to the court. 

It is more than dismaying that reason and science may not prevail in a situation with such high stakes for our nation’s recovery. The ultraconservative court majority appears poised to block OSHA’s vaccine-or-test regulation, possibly as soon as tonight. It is hoped that the healthcare worker vaccination requirement may survive. 

Freedom From Religion Foundation

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