Category: Supreme Court

Supreme Court of the United States.

The Bind We’re in — And How the Supreme Court Put Us There

Jennifer S. Bard Leave a comment

By Jennifer Bard

As the COVID-19 pandemic rages into its third year of global death and destruction, the Supreme Court of the United States has effectively thwarted every measure by federal or state government to implement the public health tools that for hundreds of years have been used to stop the spread of contagious disease. They have done so by operationalizing what were previously fringe and relatively harmless academic views in ways that extend their powers beyond any previous boundaries. These include, but are not limited to, extending the protection for religious exercise past any previously imagined, and limiting Congressional authority to respond to emergencies by imposing impossible standards of specificity on its delegation of authority to the agencies which it creates, funds, and directly oversees.

In so doing, the Court has not only undermined the health of the nation, and pushed millions of people into unnecessary long-term disability, which our fragmented health care and social security system is unequipped to handle. It has also threatened our national security by infecting what is already more than half of the children in the country with a virus that has the potential to damage every organ in their bodies, from heart to brain.

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Patient receives Covid-19 vaccine.

NFIB v. OSHA and Its Contradiction with the GOP’s Disability Employment Agenda

The Petrie-Flom Center Staff Leave a comment

By Doron Dorfman

The COVID-19 pandemic has highlighted the incoherence of the Republican party’s employment agenda, which, on the one hand, deifies full, in-person employment, and, on the other, makes the workplace hostile to this aim through relentless deregulation.

Throughout the pandemic, the GOP has vocally advanced the narrative that employees must physically return to the office to prevent recession.

Additionally, the conservative view frames disability law and policy in terms of its economic value: these policies are desirable insofar as they increase productivity and participation in the job market among disabled Americans.

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WASHINGTON, DC - OCT. 8, 2019: Rally for LGBTQ rights outside Supreme Court as Justices hear oral arguments in three cases dealing with discrimination in the workplace because of sexual orientation.

Affirming Nondiscrimination Rights: HHS Needs to Acknowledge a Private Right of Action for Section 1557 Violations

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By Cathy Zhang

Last week, on the heels of attacks on trans youth and their families in Texas, the Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) issued a notice and guidance expressing support for transgender and gender nonconforming youth and highlighting the civil rights and privacy laws surrounding gender affirming care.

OCR all but names the Texas attacks as unlawful under Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of race, color, national origin, sex, age, and disability by federally funded health programs or activities. It notes that for federally funded entities, restricting medically necessary care on the basis of gender — such as doctors reporting parents of patients to state authorities — “likely violates Section 1557.”

The guidance directs those who have been discriminated against on the basis of gender identity or disability in seeking access to gender-affirming health care to file a complaint through OCR. HHS can go further, however, by formally acknowledging that individuals have a legal right to enforce Section 1557 when they have experienced prohibited health care discrimination.

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U.S. Supreme Court interior.

Who ‘Deserves’ Health, Who ‘Deserves’ Freedom? A Recurrent Divide in SCOTUS Vaccine Mandate Cases

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By Wendy E. Parmet

In October 2020, Martin Kulldorff, Sunetra Gupta and Jay Bhattacharya issued what they called the Great Barrington Declaration (GBD). In it, they argued that “The most compassionate approach [to the pandemic] … is to allow those who are at minimal risk of death to live their lives normally to build up immunity to the virus through natural infection, while protecting those who are at highest risk. We call this Focused Protection.”

Eighteen months and over 600,000 additional deaths later, the Supreme Court embraced that view.  On January 13, in Missouri v. Biden (Missouri), the Court by a 5-4 vote refused to stay a Centers for Medicare and Medicaid (CMS) rule requiring health care workers in facilities that participate in Medicare or Medicaid to be vaccinated against COVID-19 (subject to legally-required exemptions) in order to protect patients. In contrast, in National Federation of Independent Business v. Department of Labor (NFIB), the Court by a 6-3 vote ruled that the Occupational Safety and Health Administration (OSHA) likely exceeded its statutory authority by requiring employers with over 100 employees to mandate vaccination (subject to required exemptions) or masking and testing.  The per curiam majority stated: “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.” Concurring, Justice Gorsuch added that a broad reading of OSHA’s authority would “enable intrusions into the private lives and freedoms of Americans.”

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NEW YORK, NEW YORK: MAY 18, 2020: A jogger runs past a banner by the Battery Park City Authority reminding park visitors to please wear face masks.

Negotiating Masks in the Workplace: When the ADA Does and Does Not Apply

Katherine Macfarlane Leave a comment

By Katherine Macfarlane

Workplaces are, by and large, no longer safe for employees who are high-risk for serious illness or death from COVID-19.

During the early months of the COVID-19 pandemic, it was common for workplaces to require masks, at least in shared spaces. Two years later, though the pandemic is still ongoing, mask requirements are now far less prevalent as a result of the politicization of masks, so-called mask fatigue, and new guidance from the U.S. Centers for Disease Control and Prevention (CDC).

This move to relax masking rules presents significant dangers to those most vulnerable to severe outcomes from COVID-19. High-risk employees still need their co-workers to wear masks. They must now negotiate for safe workplaces in a social and political climate that is increasingly indifferent (or actively hostile) to their needs.

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Washington, DC, USA - Closeup view of December, 23, 2020: COVID-19 Vaccination Record Card by CDC on blurred documents background.

Private Employer Vaccine Mandates in the Courts

Kaitlynn Milvert Leave a comment

By Kaitlynn Milvert

After the Occupational Safety and Health Administration (OSHA) COVID-19 vaccine mandate for large employers was withdrawn last month, many pronounced private employers to be “on their own” to make decisions about vaccine requirements for their employees.

Until one outlier Fifth Circuit decision last week, federal courts have largely agreed. In lawsuits challenging private employers’ COVID-19 vaccine mandates, federal district courts have routinely denied requests for preliminary injunctions to halt private employers’ vaccination policies from taking effect.

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U.S. Supreme Court

The Supreme Court’s Rulings on COVID-19 Vaccine Mandates, Explained

Kaitlynn Milvert Leave a comment

By Kaitlynn Milvert

In a pair of rulings issued January 13, the Supreme Court put on hold the federal vaccine-or-test requirements for large employers, but allowed federal vaccination requirements for health care workers to take effect while they are litigated in the lower federal courts.

The Court decisions each addressed questions of whether federal agencies — the Occupational Safety and Health Administration (OSHA) and the Centers for Medicare and Medicaid Services (CMS) — have authority to set these vaccination-related requirements.

In doing so, the Court drew new and unprecedented lines between the kinds of risks that agencies operating outside of the health care context — such as OSHA — have power to address through federal regulations. The Court’s decisions on these issues are likely to loom large in future litigation as federal vaccine requirements continue to be litigated in the lower courts.

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Person filling syringe from vial.

The Beginning of the End of Federalism

Jennifer S. Bard Leave a comment

By Jennifer Bard

Friday’s emergency hearing by the Supreme Court regarding the Occupational Safety and Health Administration’s (OSHA) vaccine-or-test mandate was extraordinary both in that it happened at all and what took place.

The hearing came in a response to a petition by a coalition of states and the National Federation of Independent Business (NFIB) to halt an Emergency Temporary Standard (ETS) issued by OSHA mandating that all employers with over 100 employees “establish minimum vaccination standards” including “vaccination verification, face covering, and testing requirements.”

That the Court heard the case on an emergency basis signaled their concern that OSHA, in issuing the ETS, was overreaching its authority, as they ruled the Centers for Disease Control and Prevention had done in issuing an eviction moratorium.

But what made the colloquies particularly unsettling is that the ETS was carefully crafted to be, as Professors Larry Gostin and Dorit Rubinstein Reiss explain lucidly, well within contemporary standards for an exercise of federal power affecting a health matter usually within the jurisdiction of a state. It applies only to employers already obligated to follow OSHA workplace standards and fell far short of a vaccine mandate. Moreover, however severe the risk of COVID when this was drafted six months ago, the risk from the Omicron variant is many times greater.

Yet the sympathetic ear given by the majority of the Justices to the arguments made by the lawyers seeking a stay made it possible to wonder if the whole thing was happening in either one of DC or the MCU’s multiverse. This is because the questioning, directly and by implication, calls into doubt what past Courts have identified as the framework of federalism — a nickname for the Constitution’s balancing of a strong federal government against the rights of individual states. We cannot know the extent to which the Justices will adopt any of the arguments offered them for limiting federal agency power, but from this hearing we can anticipate substantial strengthening of an individual state’s ability to resist federal regulation.

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Desolate winter scene.

A Timeline of Biden’s Pandemic Response, Part 4: Winter of Death (December 2021 – Present)

Justin Feldman Leave a comment

This series, which will run in four parts, has been adapted from “A year in, how has Biden done on pandemic response?” which was originally published on January 5, 2022 on Medium. Read the first, second, and third parts here.

By Justin Feldman

On December 1, 2021, the CDC issued a press release announcing that it had identified a case of the Omicron variant in the U.S. for the first time.

White House insiders admit that they were unprepared for Omicron, just as they were unprepared for Delta. Vice President Harris recently told an interviewer that the administration was caught flatfooted because their scientific advisors never warned that such variants could crop up (at least two of these advisors, Rick Bright and Celine Gounder, begged to differ).

While vaccination still provides powerful protection against hospitalization and death due to infection from Omicron, protection against symptomatic illness is weaker than before, particularly among those who have not received boosters. And though evidence is mounting that the risk of hospitalization and death is lower for each person infected compared to Delta, Omicron’s extremely high transmissibility means that a large fraction of the population will become infected in a short time period, particularly in the absence of additional public health measures.

On December 21, as the highly contagious variant started to sweep the country, President Biden delivered remarks about the new threat. For the hundred million Americans who remain unvaccinated, the president’s speech warned of the imminent risk of hospitalization and death. For the vaccinated and boosted, Biden’s message was: Keep Calm and Carry On, all will likely be fine. And for Wall Street, the speech was meant to provide a crucial piece of reassurance: There would be no federal support for public health measures that restrict commerce.

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BETHESDA, MD - JUNE 29, 2019: NIH NATIONAL INSTITUTES OF HEALTH sign emblem seal on gateway center entrance building at NIH campus. The NIH is the US's medical research agency.

Will NIH Learn from Myriad when Settling Its mRNA Inventorship Dispute with Moderna?

Jorge Contreras 7 Comments

By Jorge L. Contreras

The National Institutes of Health (NIH) is currently embroiled in a dispute over the ownership of patent rights to Moderna’s flagship mRNA COVID-19 vaccine (mRNA-1273).

The NIH, which funded much of Moderna’s research on the COVID-19 vaccine, should be assertive in exerting control over the results of this taxpayer-funded research. Failing to do so would be a missed opportunity for the public sector to have a say in the distribution and pricing of this critical medical technology.

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