The Supreme Court’s ruling against vaccine-or-test rules for businesses dealt a major blow to the Biden administration’s efforts to combat the pandemic, leaving them without many more tools to boost the number of people vaccinated against COVID-19.
Private businesses can decide for themselves whether to impose a mandate, but without the legal cover, it’s unlikely there will be many more doing so, especially in GOP-led states that have made mandates illegal. A federal rule would have preempted state policy, allowing businesses to keep their mandates in place.
Congressional Republicans and GOP state officials celebrated the ruling, saying the Supreme Court stood up for the freedoms of individual people.
“The Supreme Court just BLOCKED Biden’s authoritarian vaccine mandate for businesses,” tweeted House Minority Whip Rep. Steve Scalise (R-La.). “But let’s be clear: This doesn’t go far enough. Health care workers should NOT be subjected to this tyrannical mandate either.”
Health experts say there’s clear evidence that mandates work in getting more people vaccinated, and they fear that without one for nearly 80 million workers, more people will be at risk of getting hospitalized and dying.
“It is now highly unlikely that the U.S. will hit the 85-90% of Americans vaccinated to get to the other side of the pandemic,” tweeted Celine Gounder, an infectious disease specialist and former member of the Biden administration’s transition team.
President Biden has indicated he is running out of patience with Americans who refuse to get vaccinated against the coronavirus. Cash giveaways, dating app partnerships and even free college tuition were barely moving the needle, so the rules were necessary to force the issue and make workplaces safer.
But the Supreme Court said the largest stick is unconstitutional, and it’s not clear that the White House has any tools left that officials want to use.
Lawrence Gostin, a public health law professor at Georgetown University, said President Biden should mandate COVID-19 vaccines for domestic travel.
“He has wide authority over regulating the travel industry, and he’s already lawfully required masks in airports and on planes. He could do the same thing with vaccines, just like he requires it for international travelers,” Gostin said.
But airlines and other business groups oppose any vaccine and testing requirement for domestic air travel, and White House chief medical adviser Anthony Fauci recently suggested that the administration isn’t going to implement anything to get more people vaccinated.
According to Centers for Disease Control and Prevention data, about 67 percent of the eligible U.S. population is fully vaccinated. The remaining group of unvaccinated holdouts is in large part fueling the more than 1,700 deaths a day from COVID-19 occurring in the U.S.
As the omicron variant rips through the country, hospitals and health systems are being overwhelmed in many places because of unvaccinated patients.
“Public health shows that mandates are the only thing that really boost vaccination. We’ve tried encouragement and pleading, we’ve tried incentives. The only thing that works is a well-targeted mandate,” Gostin said.
An analysis from the Kaiser Family Foundation found recently there were a total of 690,000 vaccine-preventable COVID-19 hospitalizations from June through November 2021, a period that overlaps with the delta variant surge. The costs of treating these patients over that six-month period was $13.8 billion.
“That [cost] could have been prevented if people had chosen to get vaccinated. It’s hard to project how the pandemic sort of plays out. But prevention measures do reduce longer term costs. These are preventable deaths and hospitalizations,” said Krutika Amin, a KFF associate director.
Health officials stress that the more people get vaccinated who are eligible, the quicker the pandemic will end. During remarks at the White House on Thursday, President Biden continued to characterize the strain on hospitals as a “pandemic of the unvaccinated.”
“Right now, both vaccinated and unvaccinated people are testing positive,” Biden said, “but what happens after that could not be more different.”
Republicans are also attacking Biden for not getting the pandemic under control. The ruling gives them more ammo to wield after 27 Republican-led states sued along with businesses to effectively end the employer rules.
“The Supreme Court has spoken, confirming what we all knew: Biden’s disastrous mandates are unconstitutional. Biden promised to shut down the virus, not the economy but he has failed miserably on both – and mandates would have further destroyed the economy. We are proud of the Supreme Court for not backing down. No mandates!” said former President Trump in a statement Thursday.
Gostin said he wishes the Supreme Court and politicians stayed out of public health.
“The Supreme Court really handcuffed the president’s COVID response and I think that’s disgraceful. You’re in the middle of a pandemic. And I think it’ll come back to haunt us when the next crisis arises,” Gostin said.