Opinion | A Supreme Court Ruling Against Vaccine Mandates Could Be Disastrous for Public Health

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By Wendy Parmet

Ms. Parmet is a professor of law and the faculty co-director of the Center for Health Policy and Law at Northeastern University.

On Friday, the Supreme Court will hear oral arguments about two of the Biden administration’s emergency Covid-19 regulations, including a vaccine or test mandate for large employers and a vaccine requirement for some health workers. At stake in the cases, brought by business groups and Republican-led states, is not only the future of the pandemic but also the federal government’s capacity to respond to continuing and future health threats.

The chief legal question before the court is whether the Occupational Safety and Health Administration, or OSHA, and the Centers for Medicare and Medicaid Services have the authority to issue the vaccine regulations. The answer should be easy. The Biden administration carefully tied the mandates, which include exceptions for people with religious or medical exemptions, to sectors over which the federal government has clear constitutional authority. In addition, Congress granted OSHA and the C.M.S. explicit authority to issue regulations to protect health and safety in their respective spheres. And the ability of vaccines to reduce coronavirus transmission and lessen severe disease is well documented.

Although the legal case for the regulations seems strong, as several appellate courts have found, the government’s victory is not assured. Over the past year, the Supreme Court’s conservative majority has shown little inclination to sustain Covid mitigation measures. Most relevant, in Alabama Association of Realtors v. Department of Health and Human Services, the court struck down the Centers for Disease Control and Prevention’s eviction moratorium, stating, “We expect Congress to speak clearly when authorizing an agency to exert powers of ‘vast economic and political significance.’”

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