Missouri asks Supreme Court to keep pause on hospital vaccine mandate while Omicron surges
Missouri’s Deputy Attorney General argued before the U.S. Supreme Court Friday, urging the justices to continue to block a Biden administration order that healthcare workers get vaccinated as the country faces its highest surge of COVID-19 cases since the pandemic began nearly two years ago.
Missouri Attorney General Eric Schmitt led 11 states in asking the federal government to toss a rule from the U.S. Department of Health and Human Services that requires every employee, volunteer and contractor working at a healthcare facility that accepts Medicaid and Medicare to get the COVID-19 vaccine unless they have a medical or religious exemption.
The rule was set to go into effect on December 6, 2021 but was paused in the lower courts for several states. The arguments before the Supreme Court Friday dealt with whether the pause should remain.
Missouri Deputy Attorney General Jesus Osete argued that the Center for Medicare and Medicaid Services did not have authority from Congress to levy a vaccine mandate, which he said could cause workers quit their jobs and exacerbate existing healthcare staffing shortages in rural communities.
“It’s going to devastate local towns,” Osete told the court. He referenced a situation where if the only anesthesiologist in rural Nebraska declined to get vaccinated, it could force people to travel long distances to get healthcare.
But Justice Brett Kavanaugh pointed out that the healthcare organizations that would be affected by the rule were not before the court arguing, and added they overwhelmingly appear to support the regulation.
The oral arguments took place at a time when COVID-19 is surging across the country, spurred by the highly contagious Omicron variant of the disease which has led to record-breaking levels of newly reported cases.
The daily number of new cases reported in the Kansas City region are the most ever, according to data compiled by the Mid-America Regional Council. The running average of new COVID-19 hospitalizations in the metro is also the highest ever, at more than 200 earlier this week.
Much like last winter, hospitals are warning they are being pushed to the breaking point. Even though evidence suggests omicron causes milder infections than past variants, the number of people requiring hospitalization is still surging because of the sheer volume of those infected. The vast majority who become severely ill are unvaccinated.
Opposition to the mandate by Schmitt, who is running for the U.S. Senate, is in line with attitudes across much of Missouri. Many officials have largely given up on efforts to constrain the spread of the virus beyond mild encouragement to get vaccinated. As January began, Gov. Mike Parson allowed Missouri’s state of emergency to lapse, signaling his administration’s move away from a crisis footing.
Osete argued that it should have been left to the states to decide whether vaccines should be required and that the federal government had overstepped its authority.
That argument met resistance from some of the judges, who asked how requiring vaccination to protect the health of patients was different than requiring hand sanitizer or gloves. Osete said it is different because masks and gloves can come off.
Justice Sonia Sotomayor emphasized that she saw the case as a question of how the government decides to spend money on hospitals using Medicare and Medicaid, saying they were allowed to set terms and conditions for whether hospitals could receive federal funding.
“This is not an issue of power between the states and the federal government, this is an issue of what right does the federal government have to dictate what it wants to buy,” Sotomayor said
Missouri remains last among states in the percentage of nursing home staff who are vaccinated, at 64%, the according to the Centers for Medicare and Medicaid Services.
The case was one of two vaccine matters heard by the Supreme Court Friday morning. It followed nearly two hours of oral arguments on whether the court should pause the Biden administration’s regulations requiring businesses that employ more than 100 people to require their employees get vaccinated or test weekly.
While the courts are limited to just deciding whether to pause the vaccine regulations, their decisions could foreshadow how they will ultimately rule on the legality of the Biden administration’s effort to increase the vaccinated population.
About 56% of Missourians eligible to get vaccinated are fully vaccinated, and only 34% of the population has received a booster, according to data from the Centers for Disease Control and Prevention.
While the case was argued by Osete, it is part of a larger legal effort Schmitt has waged against public health measures imposed to prevent the spread of COVID-19. Schmitt appeared on Fox and Friends Friday morning to talk about the case, saying he liked the state’s chances in court.
This story was originally published January 7, 2022 at 2:12 PM.