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Supreme Court should put law, public health first in ruling on vaccine mandate

The COVID-19 vaccine mandate applies to millions of health care workers in facilities that participate in Medicare and Medicaid.

In this photo from December 2020, a health care worker at Mount Sinai Hospital receives one of the hospital’s first 975 doses of the Pfizer-BioNTech vaccine.
In this photo from December 2020, a health care worker at Mount Sinai Hospital receives one of the hospital’s first 975 doses of the Pfizer-BioNTech vaccine.
Ashlee Rezin/Sun-Times file

If there is any single group in our society that surely should be vaccinated against COVID-19, it’s the nation’s 18 million health care workers.

That’s not just the view of this editorial board, though we have made our case previously that vaccine mandates in the workplace are necessary to get this pandemic under control and society back to normal.

It is also the view of dozens of major medical associations that issued a joint statement in July calling for mandatory vaccinations of all health care employees, including those in long-term care facilities. These workers have an ethical obligation to get vaccinated, the groups said.

Yet according to the best estimates available, from a Centers for Disease Control and Prevention analysis, 30% of health care workers were unvaccinated as of September.

That’s unacceptable. Yes, more workers may have gotten vaccinated in the past two months. Yes, some people are medically ineligible to be vaccinated, though experts say that number is small. But neither point is a solid argument against a mandate for workers in places where people are at high risk of contracting, or passing on, COVID-19.

If you’re thinking “Vaccination is a personal choice” right now, ask yourself this: If you or a loved one were in the hospital or a long-term care facility, would you want the nurse, doctor, aide or anyone else who is caring for you or that loved one to be unvaccinated?

The 24 states that sued in November to stop the Biden administration’s federal vaccine mandate for health care workers are, it seems, OK with that.

The Biden administration is not. So on Thursday, the administration appealed two lower court rulings against its mandate to the U.S. Supreme Court. In the meantime, the mandate remains in place in the 26 states that have not sued.

Now the Court will decide the matter nationwide.

No place for politics

As experts have repeatedly pointed out, over 90% of people now flooding hospitals with COVID-19 are unvaccinated. Vaccination is the best way to prevent an outbreak that could occur because unvaccinated patients come in close contact with unvaccinated health care workers. It’s also a way to prevent outbreaks in long-term care facilities that have been hard-hit by the coronavirus.

The Biden administration surely had all of that in mind when, on Nov. 4, the Centers for Medicare & Medicaid Services imposed the vaccine requirement on workers in the 76,000 facilities that participate in Medicare and Medicaid. Altogether, those facilities employ more than 17 million workers.

Employees would have to receive their first shot by Dec. 6 and be fully vaccinated by Jan. 4, 2022. Facilities that didn’t comply with the requirement put their federal funding at risk.

Some health care employers balked at the idea, saying a mandate would aggravate long-standing staffing shortages, especially in rural communities. In short order, the 24 states sued.

Two federal judges swiftly sided with them. In the latest ruling on Nov. 30, Judge Terry A. Doughty — a Donald Trump appointee to the Western District of Louisiana — said the Biden administration overstepped its bounds and that only Congress, not a government agency such as CMS, could impose such a sweeping mandate.

In its appeal to the Supreme Court, the administration argues the opposite: The head of the Department of Health and Human Services — the parent agency of CMS — has the authority, the administration says, to impose requirements that are “necessary in the interest of the health and safety” of patients, including programs to “prevent and control” infectious disease.

However the conservative-dominated Court rules — and in fairness, it has declined recently to hear cases challenging vaccine mandates in New York and Massachusetts — it must be clear that its decision is based solely on the law and public health.

Only 40% of Americans currently approve of the job the Court is doing, according to a September Gallup poll, and that’s down 9 percentage points from July.

Public perceptions of the Court, as well as public health, are at stake.

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