Supreme Court Uphold CMS Vaccine Mandate for Healthcare Workers. Huge Loss for Freedom in the United States  

On the same day that many celebrated the Supreme Court striking down a vaccine mandate issued by the Occupational Safety and Health Admin. (OSHA), the Court issued a second Opinion upholding a smaller mandate. While it has drawn less immediate ire, it has set the stage for an unending wave of encroachments on the U.S. citizen’s right to bodily autonomy.

In a 5-4 per curium Opinion, the Supreme Court has upheld a vaccine mandate issued by the Centers for Medicare & Medicaid Services (CMS) under the promptings of the Secretary of Health and Human Services (HHS). The rule covers an estimated 17 million workers, including clinical and non-clinical employees who work at health care facilities that receive federal funding via Medicare or Medicaid.

Under this stringent mandate, employees are not given an alternative testing option. It’s get vaxxed, or get lost. An option for medical or religious exemptions does exist, but as the behavior of Ascension Sacred Heart proved over the past months, these exemptions may prove hard to obtain.

The Opinion…

Supreme Court. Image from CNN.

The ten-page Opinion was agreed upon by Chief Justice Roberts and the Justices Breyer, Sotomayor, Kagan, and Kavanaugh.

It began (and frankly continued) not as an exploration of the law, but rather as an exploration of the nature of Covid-19 and the potential benefits of vaccines. It then took an abrupt turn, as the majority asserted the rule fell within the agency’s statutory authority.  

“First, we agree with the Government that the Secretary’s rule falls within the authorities that Congress has conferred upon him…”

Biden v. Missouri, 595 U. S. __ (2022) at 4.

The majority found that Congress “has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.’” (Combining 42 U. S. C. §1302(a) and the Medicare Act. §1395hh(a)(1)).

Thus, because the Secretary determined (1) that a vaccine mandate would “substantially reduce the likelihood that healthcare workers will contract [Covid-19] and transmit it to their patients,” the Court found it naturally followed that (2) the Secretary had concluded such a mandate was “necessary to promote and protect patient health and safety.”

“The rule thus fits neatly within the language of the statute.”

Id. at 5.

The majority went on to state that healthcare facilities wishing to participate in Medicare and Medicaid “have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare…”

The majority compared a vaccine mandate to required training and practices that span hundreds of hours and to rules around which doctors can use radiological equipment. They also indicated it was equivalent to the requirement that employees “wear gloves, sterilize instruments, [or] wash their hands…” Because obviously hand washing rituals and an irreversible medical procedure are exactly the same.  

“Of course, the vaccine mandate goes further than what the Secretary has done in the past to implement infection control. But he has never had to address an infection problem of this scale and scope before.”

Id. at 7. The majority ominously and nonchalantly discuss the infringement on health care worker’s right to make independent decisions on voluntary medical procedures.

The majority goes on to claim that vaccination requirements from the state are a common feature of healthcare provision.

Of course, they do not discuss the fact that the definition of “vaccine” literally had to be reworked by the CDC to include the Covid-19 mRNA shots. They also do not discuss the fact that the “vaccines” are only authorized under emergency use (despite much propaganda to deceive the American people into thinking otherwise). They completely ignore the first principle of the Nuremberg Code that “the voluntary consent of the human subject is absolutely essential.” And they fail to explore the right to bodily autonomy implied in the 4th Amendment.

The majority does however state that healthcare workers and public health organizations “overwhelmingly support the Secretary’s rule.” They allege this supposed support suggests that a vaccine mandate is a “straightforward and predicable” example of acceptable regulations that Congress has authorized the Secretary to impose.

And here I was thinking that in 1803 Marbury v. Madison gave the Supreme Court the authority to analyze the constitutionality of an issue due to its legal expertise. Turns out all the expertise one needs is a Doodle poll maker.

Based on these interesting connections, the majority concludes that the mandate did not exceed the Secretary’s statutory authority.

The majority then takes two pages to make short order of three of the minority’s protests, finding:

1. The interim rule is not arbitrary and capricious despite the fact:
  • It does not allow for testing as an alternative
    • Thus, a sick vaccinated employee is ranked safer than an unvaccinated employee who is healthy
  • It makes no exceptions for employees with “natural immunity” despite 146 research studies suggesting natural immunity is far more robust than any immunity provided by the available Covid-19 “vaccines”  
  • It is a complete departure from the agency’s prior approach to merely encourage vaccines in infection-control regulations/programs
  • It may very well cause staffing shortages, especially in rural areas.

Why? Because the Secretary thought of all those things… so, even if his data might be flawed, and his solutions nonexistent, he thought about it, which according to the majority falls within the allowable “zone of reasonableness.”

2. The Secretary had good cause to delay notice and comment.

Why? Because flu season. Apparently, this “good cause” loophole also allowed the Secretary to promulgate the rule without discussing potential rural staff shortages with the States before springing the trap, because why in the hell would they need to know, it’s an emergency!

3. The rule does not run afoul of the directive in §1395 “that federal officials may not ‘exercise any supervision or control over [the] manner in which medical services are provided, or over selection [or] tenure … of any officer or employee of’ any facility.”

Why? Because IF IT DOES… which it does… then “nearly every condition of participation the Secretary has long insisted upon is unlawful.” Let that sink in.

With all that squared away, the majority concluded its opinion as if it all made perfect sense.

“The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.

Id. at 9.

Biden v. Missouri effectively cements a violation of the Nuremberg Code into the U.S. legal landscape and seems to dash any hope citizens had that the Supreme Court would step up to protect the right to bodily autonomy and the citizen’s ability to make voluntary informed medical decisions.

Ultimately, this case combined with language from the OSHA decision (for a breakdown click here) suggests that if the Biden administration can find the right tools in its toolbox, it can continue to deliver punishing vaccine mandates that erode the nation’s founding principles of life, liberty, and the pursuit of happiness.  

Thus, while it is tempting to simply celebrate the OSHA victory and write this case off as a great tragedy for the doctors and nurses, I am once again reminded of the famous poem by Martin Niemöller.  

Post by: CJ Fisher

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