On Jan. 7, the U.S. Supreme Court heard sound evidence why the federal government should be allowed to require employers of more than 100 to order workers to get vaccinated against COVID-19 or wear masks and take weekly tests.
It also heard weak retorts on why it shouldn't.
Last Thursday, the weak ones won.
In a related case, the court listened to why it makes sense for health care facilities getting federal Medicare and Medicaid funds to require those employees be vaccinated. And it heard lame arguments accusing the federal government of being a police state for mandating that.
In that case, the stronger ones won.
If this account sounds reductionist, I heard the arguments through a tainted filter: I was sick with COVID, lying under a blanket with my dog on the couch, scribbling notes on a Christmas card envelope. And my condition, though relatively mild, left little patience for pontification, anti-government screeds or efforts to minimize the seriousness of the pandemic, which is having its biggest surge since it began nearly two years ago.
I wanted arguments rooted in science that prioritized public health. But what I heard gave too much ground to anti-vaxxers, and championed states' and localities' rights, even when those have done little to stem the pandemic.
So when the court Thursday halted President Joe Biden's mandate to employers with 100 or more employees, it shouldn't have been a surprise.
Just a disappointment.
The president issued the emergency temporary standard on businesses in November but it was blocked from taking effect within days by an appeals court panel that called it too broad. It was reinstated in December by another appeals court, but now it's blocked three days after going into effect, by a 6-3 vote.
It would have impacted 80 million workers.
Now the administration is deploying military members to hospitals in six states that need help.
What's so frustrating is that the president wants to act to intercept the tide, and the Occupational Safety and Health Administration has broad discretion to enact safety measures for workplaces. But conservatives on the high court, casting it as government overreach, tie his hands.
If Biden cited an emergency to declare war on another country, he'd probably be cheered on.
Mandates would wreck businesses? You mean like the virus already does?
In the face of a virus that has killed 843,000 in America, Missouri's deputy attorney general warned that the vaccine requirement would cause workers to quit their jobs and would "devastate local towns” because of worker shortages.
"Isn't that what COVID itself is doing?" I muttered to the dog, who licked my hand. Almost 17,000 of the nation's COVID deaths have been in Missouri, where only 56% of eligible people are fully vaccinated. Only a third have gotten a booster.
"A single federal agency tasked with occupational standards cannot commandeer businesses economy-wide into becoming de facto public health agencies," Scott Keller, representing the National Federation of Independent Businesses, told justices.
"This is a pandemic in which nearly a million people have died," responded Justice Elena Kagan. "It is by far the greatest public health danger that this country has faced in the last century. … And this is the policy that is most geared to stopping all this."
Justice Stephen Breyer, who shared the concern, noted: "There were three-quarters of a million new cases yesterday. … That's 10 times as many as when OSHA put this rule in. The hospitals are today, yesterday, full, almost to the point of the maximum they've ever been in this disease, OK?"
Apparently not. His court colleagues preferred Keller's reasoning about a "permanent worker displacement that will ripple through the national economy," along with lost profits, lost goodwill and lost business reputations. He used words like "catastrophic," "bankrupt" and "devastating" to depict what would happen if government required vaccinations or tests and masks.
My foggy brain wasn't tracking with that. As Justice Sonia Sotomayor pointed out: "Catching COVID keeps people out of the workplace for extraordinary periods of time. … The unvaccinated worker affects other unvaccinated workers but (also) affects vaccinated workers. We have proof of that with omicron. And it's not just death, but there is illness, and for many with preexisting conditions or immunological problems, there are severe consequences even when vaccinated."
She was speaking to me. I've been doubly vaccinated. I qualified for and got the booster early thanks to my age and an immune system weakness caused by a shot I take. If I hadn't gotten the vaccine and booster, I'd probably be in the hospital.
If I were, I could have been taking up space from someone who needed the bed more. Look what happened to Dale Weeks, the retired school superintendent from Newton who developed sepsis and died in November after weeks of awaiting a hospital bed at a large medical center. Since those beds were taken up by COVID patients, he was confined to a less-equipped care center in Newton.
I guess we vaccinated people don't have a right to be protected from the careless
A wave of nausea drove me to the bathroom around the time Justice Samuel Alito said workers should be able to balance the risks for themselves and faulted OSHA for dictating what people could do on and off the job, forever. He contended vaccinations might also harm people's health. "There is a risk, right? Has OSHA ever imposed any other safety regulation that imposes some extra risk on the employee?"
The federal Food and Drug Administration calls the risks from the Moderna and Pfizer vaccines very small. But what about the risks to the rest of us from those who won't get vaccinated or wear masks? Where's our say in it? I suspect someone who wasn't taking precautions passed the virus to me. Tens of millions of Americans haven’t even taken a first shot.
From Solicitor General Elizabeth Prelogar, we heard that the OSHA statute authorized immunization, masking and testing, measures that could now save 6,500 lives and prevent 250,000 hospitalizations in six months. We were also reminded that we've all been subject to compulsory vaccinations, starting from when we entered school.
But from Keller, we heard the vaccine mandate described as "a blunderbuss rule" for requiring the same thing of all large employers, regardless of other steps they've taken to protect employees. By then I had no idea what he was talking about and blamed the fog of the virus. If they're already requiring vaccines or tests and masks, where's the problem?
And what's blunderbuss? The dictionary defines it as either "a short musket of wide bore with expanded muzzle," or "an insensitive, blundering person."
Kagan wasn't getting it, either: "I'm trying to figure out why this is a blunderbuss approach," she said, "when everybody knows from living their normal lives that every workplace has been affected by this, save for a few here and there."
From opponents we heard that state and local officials can best understand and accommodate conditions in their workplaces. (Which is of little help when they don't choose to do anything.)
We heard that the risk of COVID is everywhere, at home, at work, and elsewhere, so why single out the workplace? (Because we can control where we go and with whom we associate in other settings. At a worksite, not so much.)
Even as opponents argued, my system was having none of it. For all their posturing, here I was actually suffering through it and would have welcomed federal government protection.
Instead I got blunderbuss.
