By David G. Bjornstrom

Supreme Court Opens Pandora’s Box on Vaccine Mandates

January 21, 2022
Column: Catching Air
The Supreme Court has rebuffed, for now, the government’s OSHA vaccine mandate that would have affected 80 million American workers. While that was good news, the Court unfortunately failed to address some of the biggest problems with that mandate, and a second case decided the same day, Biden v. Missouri, approved a different mandate that was imposed by the Department of Health and Human Services affecting 10 million health care workers. These decisions have implications for future cases that should be very concerning to those who oppose government intrusions into our personal medical decisions. 
The Court rejected the OSHA mandate on the grounds that Congress had not authorized OSHA to mandate vaccinations, but the Court seemed to assume that Congress could have given that authority to OSHA if it wanted to. In other words, the Court assumed that it is within Congress’ power under the Constitution to impose vaccine mandates directly or through federal agencies.
The Court in Biden v. Missouri felt that Congress did, in fact, authorize the Department of Health and Human Services to require vaccination of health care workers in order to protect their patients at facilities that receive federal money. It was even suggested during oral argument that the federal government can put whatever conditions it wants on the recipients of federal funds. The Justices did not seem to know or care much that Covid vaccines are not stopping the spread of the current Omicron variant. Nor did they seem interested in medical evidence presented to them in detailed legal briefs suggesting that the vaccines can have serious adverse medical side effects.
The Court’s opinion in Biden v. Missouri does not provide any clear limiting principle to keep the agency from extending its mandate in the future to all patients at those facilities, and the Court’s decision may be cited as precedent in future cases arguing for mandates by other federal agencies as well. The Court’s opinion may even be cited as legal precedent for a federal vaccine mandate on all Americans if Congress attempts to enact such a law.
In limiting the Court’s inquiry to whether or not Congress has given an agency the power to mandate vaccines, the Court assumed that federal vaccine mandates are allowable in the first place. Unfortunately, the Court did not address critical legal and Constitutional issues that suggest otherwise:
1.  What is the government’s legal authority? While there are some limited (and rather questionable) precedents for state and local vaccine mandates, there is no solid legal precedent for a broad-based federal government mandate, whether Congress imposes it directly or by delegation to a federal agency. What the federal government cannot do directly it should not be allowed to do indirectly as a “work-around” by making it a condition for hospitals or other organizations to receive needed government funds.
2.  Right to refuse medical treatments. Vaccine mandates violate important Constitutional principles, including recent Supreme Court cases supporting the right to refuse unwanted invasive medical procedures. Remember the right to die cases and “my body, my choice”?
3.  Right to refuse participation in medical experiments. Covid vaccines are still experimental, authorized only for “emergency use” until there is full FDA approval which will require more testing. Vaccine mandates would seem to violate federal law and the Nuremberg Code which prohibit governments from subjecting people to medical experiments.
4.  Is there no limit? Limited government is a basic principle under our Constitution. If the government is allowed to mandate vaccines for doctors and nurses in order to keep patients “safe,” why can’t it mandate vaccines for all of the patients and their visitors in the hospital? If the government is allowed to put whatever conditions it wants on the receipt of government money, could it cut off Medicare for unvaccinated older Americans?
In all fairness to the Court, they were not considering the full merits of the vaccine mandates, just whether those mandates should be enforceable on a temporary basis while more detailed litigation continues in the lower courts. So there is some possibility that the big legal and Constitutional issues will be addressed in the future. Unfortunately, the Justices do not seem very concerned about those big issues judging from their willingness to subject millions of Americans to an irreversible, still-experimental medical treatment in the meantime.
The Court’s decision in Biden v. Missouri opens the door wide open for the federal government to order more vaccine mandates or other intrusions into our personal medical decisions. Where is the limit on our federal government?

David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »

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