The Sweeping Impacts of the Supreme Court’s Mandate Rulings

Last week’s split U.S. Supreme Court rulings on the OSHA and CMS vaccination mandate rules will have a sweeping impact on how businesses and in particular healthcare facilities conduct business in the United States. 

The Court’s decision on the OSHA rule is pretty straightforward. The court has resoundingly stated, with a 6-3 majority, that the federal agency does not have the authority to mandate vaccinations of millions of employees by private companies. However, the Medicare ruling is as troubling as it is confusing.

Clearly, the practical results of the Court’s position overturning the lower courts’ stay on the vaccine mandate using Medicare rules will force millions of healthcare professionals to make the tough decision over whether to lose their jobs or get vaccinated. Just as importantly, the decision will now result in tens of thousands leaving the already strapped healthcare industry in search of employment elsewhere. It is truly ironic that individuals who were heroes just a few months ago, are now being fired because of their concern over receiving a COVID-19 vaccination, never mind that in some cases, that COVID-19 vaccination is prohibited by their physician and that most of them probably have natural immunity.

But what does the ruling mean to the legal standing of healthcare vaccination mandates moving forward? First, the legal battle is not yet settled. The Court did not make a final ruling on the matter. It merely maintained the lower courts’ stay of the rule. Thus, the Court has said that the rule can continue to govern healthcare facilities while the case plays itself out in the courts. Although practically, the ruling will mean that the hospitals will now become free to reinstate their vaccine mandates on healthcare practitioners, including physicians.

What did the Court do?

The lawsuit over the validity of a CMS-directed vaccination mandate is being played out in the courts. Technically, it has not even been decided fully in the trial courts. Thus far, the only thing that has happened is that the lower courts, the trial courts and their appellate circuit courts, have decided that the chances of the plaintiffs, that is healthcare workers, being able to succeed in their overall effort to invalidate a rule will likely prevail. However the Supreme Court did not see it that way and merely said that the rule could continue until such time as the lower courts are able to make definitive conclusions on the validity of the rule.

To deny the stay, CMS had to show that there is a reasonable probability that 1) their case would prevail would be granted, 2) a fair prospect that the judgment would be reversed, and 3) that irreparable harm would result from denying that stay.

The only thing the court said last week about the CMS vaccination mandate is that it did not feel that it was overwhelmingly likely that the plaintiffs, namely healthcare workers, would prevail in the lawsuit. That does not mean that they would not prevail at all, merely that it was not overwhelmingly likely that they would. 

The Supreme Court has taken this position in the past with other controversies for at least two reasons. First, they may actually believe that the case would not prevail. Or, quite often, they merely want the arguments to play out in the lower courts and mature before they make a decision. The reality, however, is that on many occasions, the Court uses its denial of a stay as a signal of how it will rule in the final case. As such, although it is still possible for the healthcare providers to prevail, the road has become a lot more difficult, and importantly, a lot more protracted.

In support of the hope that the case will ultimately prevail, is the fact that it makes no sense for two supposedly conservative members of the court, namely Chief Justice John Roberts and Justice Brett Cavanaugh,  to believe that one federal agency, CMS, has the authority to pass such a rule under vaguely worded statutory premises, while OSHA does not.

In short, as noted by Justice Clarence Thomas in his dissent: The government is relying on its power to “publish such rules and regulations...as may be necessary to the efficient administration of the [agency’s] functions.”

To show that the rule is necessary to the administration, it must be shown that the rule has “an actual and discernible nexus” in the practical management of its programs. However, it is nearly impossible, as Thomas pointed out, that such a necessary and discernible nexus exists in a mandate that compels millions of people to undergo procedures that cannot be removed at the end of the shift.

EMS argues that it has the authority to mandate these vaccinations because one of its functions is to ensure the implementation of infection control programs, which the government argues that the COVID-19 vaccination program is. However, as just as Thomas points out, the infection control programs focus on sanitizing the facilities not the personnel.

Ultimately, the chances that the vaccine mandate for healthcare workers will be overturned is now a lot less likely. Already, the consequences of the government’s actions and the Court’s decision are starting to be felt. The Mayo Clinic has announced that it is preparing to fire thousands of employees because of the refusal to obtain the vaccination. Locally, many of us are observing scores of hospitals re-implementing the vaccination programs they had previously abandoned.

The implications for future relations between physicians and hospitals is equally daunting. 

Essentially, what his rule does and what the Court’s ruling upheld, is a hospital’s ability to determine which doctors can access hospitals based on decisions made in the deepest levels of America‘s federal bureaucracy, and not by the experts — physicians. Recall that prior to the COVID-19 vaccine mandates, physician staff members already had to deal with mandatory flu vaccinations with uncertain efficacy, hepatitis vaccinations and the like. The road is also now open for privileges and access to hospitals by physicians being dependent on booster status and on predictable future vaccination needs that may be perceived to be necessary by the government.

How this ultimately plays out is yet to be determined. However, one thing is sure, no matter what the outcome may be, the waves will definitely impact the relationships between physicians and government, and physicians and hospitals.

The United States Medical Association is a group of physicians and others who have seen firsthand the shifting medical landscape and the lack of any real representation — often time even representation working against our interests by major organizations that are supposed to be watching out for us — such as the AMA. Those organizations are not watching out for physicians, but the USMA will.

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