The US Supreme Court heard arguments on Friday in the case of the National Federation of Independent Business v. Department of Labor, wherein the counsel for the NFIB argued that the federal government cannot impose vaccine mandates on employees because it is not essentially a workplace issue.
Justices seemed insistent on weighing the legality of the vaccine mandates against the number of COVID cases in the US, and in some cases, on provably false medical evidence. Justice Sotomayor cited numbers about hospitalizations for children.
Counsel for the independent businesses spoke about the vaccine mandate coming while the Delta variant of COVID was most prevalent in the US, saying that the current variant, Omicron, is of far less worry in terms of serious illness or death.
But Justice Sotomayor interrupted, saying "Counsel, those numbers show that Omicron is as deadly and causes as much serious disease in the unvaccinated as Delta did," despite this being entirely false.
"The numbers," she said, "look at the hospitalization rates that are going on. We have more affected people in the country today than we had a year ago in January. We have hospitals that are almost at full capacity with people severely ill on ventilators."
"We have over 100,000 children," she said, "which we've never had before, in serious condition and many on ventilators. So saying it's a workplace variant just underscores the fact that without some workplace rules with respect to vaccines or encouraging vaccines, because this is not a vaccine mandate."
She asked what is irrational about the "rules of that nature," despite using falsehoods to bolster her question. To date, per the CDC, 694 children between the ages of 0-17 have died with COVID. As to hospitalizations, many children are hospitalized who are found to have COVID, but are not admitted with COVID symptoms as a cause.
Dr. Anthony Fauci recently noted that many of these were not hospitalizations due to COVID, but instead were with COVID. He said that children who were admitted to the hospital for any reason were tested for COVID, meaning that many children who seek medical treatment for other reasons are found to have COVID.
This is a very different metric, and Fauci felt compelled to correct the claim made by many outlets that COVID hospitalizations among children were on the rise.
"The other important thing is that if you look at the children are hospitalized many of them are hospitalized with COVID as opposed to because of COVID," Fauci said
"What we mean by that is that if a child goes in the hospital they automatically get tested for COVID and they get counted as a COVID hospitalized individual, when in fact they may go in for a broken leg or appendicitis or something like that. So it's over counting the number of children who are 'hospitalized' with COVID as opposed to because of COVID."
The Court's questions skewed toward weighing the social impact of COVID, rather than delving into the legality of OSHA's right to enforce the vaccine. Justices Kagan, Sotomayor, and Breyer seemed primarily concerned with the impacts of COVID rather than the impact or legality of the mandates. As Sotomayor previously stated during emergency hearings on the closure of houses of worship, her issue was with the spreadability of the virus, and not with the legal implications. Sotomayor was hearing the arguments remotely.
Justice Thomas, as the oral arguments came to a close, asked counsel for the government "Is a vaccine the only way to treat COVID?"
Counsel responded that it "is certainly the single most effective way to target all of the hazards OSHA identified both the chances of contracted the virus in the first place the risk of infecting other workers on the worksite and with respect to the negative health consequences that vaccination provides protection on all of those fronts."
Chief Justice Roberts, mitigating his comments by saying that he fully believes the vaccines are safe and effective, asked if OSHA has the authority to require protections in the workplace that also impact employees' non-work life. He was also interested as to who would take on the liability in the event that an employee's compliance with the mandate led to adverse health reactions.
Justice Gorsuch asked why OSHA hasn't previously mandated vaccines, to which the government counsel replied that COVID is more dangerous. Gorsuch noted that polio was arguably far more dangerous.
While the goal of the counsel opposing vaccine mandates on behalf of independent businesses was to request a stay of the vaccine mandates imposed by the Biden administration and pushed under the auspices of the Occupational Health and Safety Association, many of the Justices seemed less concerned with the legality of the mandates than the current COVID case count in the US.
Justices Breyer and Kagan were concerned that the mandates were not earlier implemented, and that this could be a cause of increased cases. However, it has been shown over and over again that those who are vaccinated, and those who have received booster shots, are also susceptible to both infection and spreading that infection to others.
The mandate for which counsel was asking for a stay is per OSHA, and it's slated to go into effect Jan. 10, with enforcement coming on Feb. 9. If the Court does not issue a stay, employees who are not vaccinated at facilities that fall under OSHA's mandate will be required to mask and test.