Supreme Court rulings on Biden administration vaccine mandates — explanation

Biden administration vaccine mandates

This article about recent US Supreme Court rulings on the Biden administration’s proposed vaccine mandates was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.

On January 13, 2022, the US Supreme Court, in two different decisions, struck down the Biden administration’s Occupational Safety and Health Administration (OSHA)’s Emergency Temporary Standard (ETS) requiring employers to create a plan that requires employees to vaccinate or test and mask in the workplace and upheld a rule by the Centers for Medicaid and Medicare (CMS) requiring 15 different types of healthcare providers to vaccine mandates for their employees (subject to required medical and religious accommodations).

This post explains and analyzes both decisions regarding the Biden administration’s proposed vaccine mandates.

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What would a time traveler from 2019 think about the COVID pandemic

COVID-19 pandemic

I was thinking about the COVID-19 pandemic recently, and I wondered how we would communicate with a time traveler from just two years ago. I had to do this thought exercise a few years ago when I had to create a paragraph in modern English that would make no sense to a time traveler from 1965. Think about the words that we use in common conversation that would make no sense to them — gigabytes, smartphones, internet, WiFi, gluten-free, and so many more.

While at my local coffee joint drinking my favorite and writing my previous blog post, someone said to me, “cool mask.” It’s a Star Trek mask — yes, I am a Trek nerd, don’t get me started. I then realized back in 2019, there is no way someone would put those two words together and make sense.

So, just to have fun on this Friday afternoon, I thought I’d list out some of the terms we use today that would be foreign to someone from 2019. Just a caveat first — some of these terms would be known by scientists and those who were involved with vaccines. But most would not have been said or understood in normal conversations.

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Medicaid and Medicare vaccine mandates legal review

brown wooden gavel on brown wooden table

This Medicaid and Medicare vaccine mandates legal review was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.

Over the past weeks, several courts around the country have stayed the Medicare and Medicaid vaccine mandates. As of today, December 20, 2021, the mandate is stayed in 25 states, and in force in 25.

Staying this mandate is more surprising than staying the OSHA mandate we have discussed before because while a vaccine mandate is new (but not other broad workplace regulations), and OSHA Emergency Temporary Standards require a high bar rarely met, there is a long history of extensive, broad funding conditions under Medicaid and Medicare.

I have decided to do this as an overview rather than a full analysis of each of the Medicare and Medicaid vaccine mandates decisions, simply because I want to get it out promptly. I will say that my view is that the strongest argument against the rule is that it was enacted without notice and comment, and that, itself, is not a very strong argument. 

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Court stays the Biden OSHA COVID vaccine mandate — an analysis

OSHA COVID-19 vaccine mandate

This article about the Court of Appeals stay of President Biden’s OSHA COVID vaccine mandate was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.

On November 6, 2021, the US Fifth Circuit Court of Appeals stayed President Biden’s Emergency Temporary Standard (ETS) – the emergency temporary standard by which OSHA required large employers to adopt a COVID-19 vaccine or test mandate – citing grave constitutional and statutory concerns.

On November 12, 2021, the Fifth Circuit published a decision keeping in place its stay and elaborating on the reasons. The decision is concerning — first, the legal analysis does not follow established law in several ways, and the innovations (or misapplications) are not well reasoned. Second, the decision suggests a lack of close reading of the Emergency Temporary Standard the decision is putting on hold. And third, and perhaps most concerning, the decision suggests the panel attributes little to no importance to halting COVID-19, or to the fact that over a thousand people in the United States are dying from COVID-19 every day, or to the fact that the ETS is estimated to save thousands of workers lives and prevent a quarter of a million hospitalizations, under conservative assumptions.

All of these give cause for concern if the Fifth Circuit is the one chosen under the lottery to hear the cases against the mandate. A panel that clearly ascribes little importance to protecting employees from COVID-19 is unlikely to consider the need for a mandate carefully. 

To be clear, the bar for putting out an ETS is high. Another panel may end up not upholding the ETS for not meeting that high bar, and that would be well within the lines of existing jurisprudence. But this decision isn’t it. 

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COVID vaccinated are NOT as likely to spread the virus as unvaccinated

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I keep seeing the anti-vax claim that those who have received the COVID-19 vaccinated are just as likely to spread the virus as unvaccinated individuals. Another day, another myth from anti-vaxxers that must be debunked, because this is utterly ridiculous.

I know, it’s been debunked so many times, it seems fruitless to do it again, but it’s being used as one of the excuses to not get the vaccine. Among all of the dumb claims of the COVID-19 vaccine deniers, this is one of the dumbest.

This claim about those vaccinated against COVID-19 are as likely (or sometimes more likely) to spread the SARS-CoV-2 virus as unvaccinated is not supported by any scientific evidence. Yet, your local Twitter or Facebook anti-vaxxer loves to spread this inane trope, mainly because they can. And because people seem to believe any outlandish claim made about the vaccine.

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COVID vaccine mandates are working

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I know we keep reading about lawsuits and protest about COVID-19 vaccine mandates, but I think we (pro-science, pro-vaxxers) are too focused on the negative. Actual data is showing us that these mandates are working and they are substantially increasing vaccination rates.

There have been a ton of court rulings and public protests about COVID-19 vaccine mandates. Dorit Rubinstein Reiss has written about a few of them, but she is barely keeping up with them. I’m on a mailing list from her, and I swear that it appears that there is a new lawsuit against these mandates every single day. And court rulings have been both positive and negative.

But, as I said above, there is good news. The mandates are actually working. So, let’s take a look at what we know.

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Supreme Court and Religious Freedom from vaccine mandates – why we should worry

supreme court vaccine mandates

This article about the Supreme Court and how it may use religious freedom against vaccine mandates was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law. Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.

On 29 October 2021, the Supreme Court rejected a request to stay – put on hold – Maine’s vaccine mandates for healthcare workers, which did not include a religious exemption. Many people in the immunization community are excited and happy about this decision.

Without wanting to be a downer, I want to explain why this decision – though certainly better than the alternative, staying the mandate – should cause us concern. Basically, three justices on the Court signed onto an opinion that essentially says that public health writ large is not a compelling state interest (in the middle of a deadly pandemic), that thinks that the right comparison is one religious exemption to one medical exemption (rather than consider aggregate effects) and that if other states are less protective of their citizens’ health, a state can’t limit religion to protect its citizens better.

What was not in the decision is any concern about the effects of COVID-19, a disease that is still killing over 1,000 Americans a day. That is highly problematic. But more concerning is the fact that two other justices were not willing to stay the mandate via emergency proceedings, but saying no more, implying that they are open to considering requiring a religious exemption (though they are certainly not saying they would – and these justices probably could use more information on why requiring a religious exemption from vaccines mandates is problematic). 

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My body my choice – another awful anti-vaccine trope

my body my choice

A common trope being pushed by COVID-19 vaccine deniers is “my body, my choice.” What they are saying is that they have a fundamental right to decide whether to get the COVID-19 vaccine (or any vaccine, for that matter).

Ironically, “my body, my choice” is a feminine slogan that was used in the abortion argument – it meant that it’s the woman’s body and it was her choice about abortion. Since much of the anti-vaccine movement, at least in the USA, is on the far right, I can bet most of these people would decry the pro-abortion meaning of “my body, my choice” – they don’t think women have a right to choose anything about their body. Except for vaccines, of course.

Despite their attempt to co-opt the actual meaning of “my body, my choice,” these anti-vaxxers are trying to push the narrative that there should be freedom of choice for vaccines.

But like most tropes in the anti-vax world, this one is a solid no – it does not make sense.

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Vaccine mandate history – USA owes its existence to one

snow wood landscape vacation

The American vaccine mandate history goes all the way back to the American Revolutionary War when General George Washington ordered smallpox vaccinations for all soldiers in 1777. I bet most people don’t know the history of the vaccine mandate, but I was amazed to read how far back it went in US history.

However, vaccine mandates history includes a lot of other events that tell us that not only have mandates been a part of the fabric of American history, it’s also constitutional. And I’m briefly going to cover it in this article.

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Vaccine informed consent – is it in tension with school mandates?

vaccine informed consent

This article about vaccine informed consent was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.

Several people have asked me whether having school mandates is in tension with the idea of vaccine informed consent. The answer is no. While school mandates have some effect on parental autonomy, the doctrine of informed consent should not be conflated with autonomy.

For a somewhat different reason, imposing sanctions on those who do not vaccinate is also not a violation of informed consent.

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