WASHINGTON— The case could have been called OSHA v. COVID — and the Supreme Court ruled in favor of COVID.

On Jan. 13, the Court ruled 6-3 to delay the Biden administration’s temporary emergency workplace vaccine regulations indefinitely, until lawsuits challenging them can be decided. 

On strict partisan lines, it held that the Occupational Safety and Health Administration [OSHA] had overreached its authority to regulate workplace hazards when it ordered all employers with 100 or more workers to ensure that they are vaccinated against COVID-19 or get tested for it weekly. It said OSHA had the power “to set workplace safety standards, not broad public-health measures.”

Steve Wishnia at the vaccination office.

The news broke as I was returning from covering a protest at Jacobi Hospital in the Bronx, in which overloaded nurses depicted a health system on the verge of collapse after decades of disinvestment and two years of COVID, with the halls outside the emergency room filled with beds for patients waiting for rooms. New York State Nurses Association Executive Director Pat Kane said the number of workers in the city’s health and hospital system testing positive for COVID shot from 154 in November to almost 3,000 in December.

The Court’s oral arguments on the case Jan. 7 echoed those wildly disparate worlds. The three more liberal justices and OSHA’s lawyer were like “THERE’S A PANDEMIC THAT’S KILLED MORE THAN 800,000 AMERICANS!” The six far-right Justices focused on the legal question of whether OSHA’s power to issue temporary emergency standards to protect workers exposed to “grave danger” from “physically harmful substances” and “new hazards” applied, because Congress had not explicitly authorized it to ordain mass vaccinations of workers. 

They concluded that “although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” (In a separate case, the Court lifted an injunction against the Department of Health and Human Services’ emergency vaccination regulations for workers in facilities that receive Medicare or Medicaid funds — a much narrower mandate.) 

Arguing over whether COVID is a genuine workplace hazard, because unlike coal dust or toxic solvents, it does not originate in the workplace, is akin to arguing about the tuning of Emperor Nero’s lyre while Rome was burning. [Contrary to legend, Nero did not fiddle during the Great Fire of 64, because the violin wasn’t invented until the 16th century].

The counterargument by OSHA, the federal government, and Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor could be boiled down to three sentences. The 1970 law that established OSHA authorizes it to protect workers from exposure to lethal substances. Many COVID deaths have come from workplace exposure, as contagious respiratory diseases are a grave danger for people breathing in an enclosed space eight hours a day. And vaccines are the single most effective way to protect against infection.

Emergencies do not give governments unlimited power. The 9/11 attacks were the most lethal on American soil since the Civil War, but that wasn’t a valid justification for sending an undercover police officer on a rafting trip with a Muslim student group from City College, or torturing suspected terrorists and calling it “enhanced interrogation.”

OSHA has never issued such a large-scale regulation, affecting an estimated 84 million workers, in its 51-year history, Chief Justice John Roberts and others argued. But, Solicitor General Elizabeth B. Prelogar told the Court Jan. 7, the agency has never had to deal with a public-health crisis of this magnitude, the worst since the influenza epidemic of 1918-19 killed some 675,000 Americans. 

A basic principle of epidemiology is that vaccines are not just for protecting the individual who gets one, but to protect others. A large part of this is by shrinking the pool of potential hosts to deny the pathogen the opportunity to evolve into a more contagious, more virulent, or drug-resistant form.

There have been two massive failures of this with COVID. First, the lack of vaccine distribution in Africa, the least lucrative continent in the world for drug companies, means barely 7% of people there are fully vaccinated, according to World Health Organization figures. That is a pool of more than 1 billion potential hosts. South Africa, with 27% of its people vaccinated, is doing better, but that was far from sufficient to prevent the emergence of the omicron variant, contagious enough to infect some vaccinated people.

Second, the sheer number of morons — no milder word would be accurate —in the U.S. and Europe who refuse to get vaccinated, a large, loud, and occasionally violent minority that denies 225 years of medical science.

The Court appeared to carry an undercurrent of sympathy for anti-vaxxers. Justice Clarence Thomas, dissenting against letting the regulations for health-care workers go into effect, argued that they would compel millions of workers “to undergo an unwanted medical procedure that ‘cannot be removed at the end of the shift.’” In oral arguments, Justice Samuel Alito said that the regulations would force unvaccinated workers who, however foolishly, wanted to “balance the risks presented to their health” to take something that will be with them for the rest of their lives.

More explicit was what could be called “COVID denial-lite.” In oral arguments, Ohio Solicitor General Benjamin N. Flowers questioned whether there really was a “grave danger” when unvaccinated people aged 18 to 29 have a lower risk of dying of COVID than vaccinated people 50 to 64. 

Focusing on deaths exclusively excludes the danger of infecting others and of long-term COVID, and, according to Centers for Disease Control data from late November, the death rate for unvaccinated 18-to-29-year-olds was 17 times that of vaccinated people the same age. 

One of the two main legal principles in deciding whether to issue a stay is which side will suffer more damage from the delay. The Court’s majority framed it as a choice between a mandate that will force employers “to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs” versus OSHA’s projection that it would save over 6,500 lives and prevent hundreds of thousands of hospitalizations. 

“It is not our role to weigh such tradeoffs,” they concluded, ruling that Congress had not given OSHA the power to “regulate public health more broadly.” 

Which constitutes more damage? Quitting your job or getting fired because you refuse to take a simple public-health precaution, or dying an agonized choking death from a virulent respiratory disease?

“As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible,” Justices Breyer, Kagan, and Sotomayor concluded in their dissent.


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