Supreme Court will hear arguments on vaccine mandate: Questions and answers

The U.S. Supreme Court has long been expected to weigh in on the federal government’s COVID-19 vaccine order for healthcare workers.

But even some legal experts are surprised at how quickly it’s happening.

The nation’s highest court said it would hear arguments on Jan. 7 on the Biden administration’s vaccine mandate for healthcare workers. The order from the Centers for Medicare and Medicaid Services covers employees at all healthcare facilities getting federal funds. The mandate covers 17 million workers.

The court will also hear arguments on a separate order from the Occupational Health and Safety Administration requiring tens of millions of workers to get vaccinated or submit to regular COVID-19 testing. This order covers all employers with 100 or more workers.

The mandate for healthcare workers carries one significant difference: there is no testing option. It does allow for limited exemptions for medical or religious reasons. Otherwise, healthcare workers must get vaccinated or they'll lose their jobs.

The justices received emergency petitions last week to hear arguments on the vaccine orders. Now that the Supreme Court has set a date for arguments, here’s a quick summary of the legal action.

Why is it unusual?

Amy Howe, a reporter who covers the high court for SCOTUSBlog, described the Supreme Court’s decision to hear arguments on the orders in such fashion as “somewhat of a surprise.”

Howe wrote that it seemed likely the justices would rule on the emergency requests in what is sometimes called the “shadow docket,” when the court issues an order without lengthy debate or arguments.

“Instead, and perhaps in response to criticism of the increased use of the shadow docket to litigate major policy disputes, the justices fast-tracked the cases for oral argument,” Howe wrote.

Last week, the Supreme Court asked the legal parties to submit arguments by Dec. 30. Some analysts speculated the court was going to review those responses and make a decision without a hearing.

What’s the status of the orders?

The Biden administration issued the vaccine orders for healthcare workers and the business sector in November. They were initially slated to take effect Jan. 4, but both orders have been the subject of intense legal battles in lower federal courts.

Federal court rulings have blocked the vaccine mandate for healthcare workers in about half the states of the country.

Last week, a federal appeals court ruled the Biden administration could move forward with the vaccine order covering private employers. That prompted opponents to quickly appeal to the Supreme Court to block it.

What’s the White House reaction?

After the justices agreed to hear arguments, Jen Psaki, the White House press secretary, said President Biden’s orders covering healthcare workers and employers represent the necessary steps to protect Americans.

“At a critical moment for the nation’s health, the OSHA vaccination or testing rule ensures that employers are protecting their employees and the CMS health care vaccination requirement ensures that providers are protecting their patients. We are confident in the legal authority for both policies and DOJ will vigorously defend both at the Supreme Court,” she said in a statement Wednesday night.

What’s the government’s position?

The Biden administration said it has the authority to issue the vaccine order covering healthcare workers and that it simply makes sense in a pandemic that has killed more than 800,000 Americans.

Last week, the Biden administration filed a petition with the Supreme Court seeking permission to move forward with the vaccine mandate for healthcare workers. The administration said the mandate is needed before COVID-19 cases worsen. The petition noted the rise in cases in recent weeks and the rapid spread of the Omicron variant.

The White House argues it has the legal authority to issue the mandate for healthcare workers to protect Medicare and Medicaid patients. The order specifies that it covers workers in facilities getting funds from Medicare and Medicaid.

What do opponents of the mandates argue?

Opponents, including a host of states and some business groups, said it’s unfair to workers who have served throughout the pandemic to face losing their jobs. Some also said it would exacerbate staffing shortages that are already hampering healthcare organizations. And some critics said it's simply a question of individual liberty and constitutional rights.

In a lower court ruling blocking the vaccine order on healthcare workers, a federal judge wrote that such a requirment should come in the form of legislation from Congress, and even then, he wasn't certain such a law would be constitutional.

Healthcare advocacy groups, including the American Medical Association, have urged businesses to follow the vaccine orders to curb the spread of COVID-19. They argued vaccine mandates are effective in getting more people to get the shots.

What is happening at the state level?

Some states have imposed their own orders requiring healthcare workers to be vaccinated.

California was the first state in the country to require all healthcare workers to be vaccinated, issuing an order in August. New York, Illinois, New Mexico, Rhode Island and Connecticut, among others, have also issued vaccine requirements for healthcare workers.

California and New Mexico have also required healthcare workers to get booster shots.

However, some states have taken legal action to block the vaccine order for healthcare workers.

How many hospitals have COVID-19 vaccination policies?

More than 2,500 hospitals - 40% of the nation's hospitals - have imposed a vaccine requirement, according to the White House.

Some healthcare systems, including the Cleveland Clinic, HCA Healthcare and Intermountain Healthcare, said they were holding off on the vaccine requirement for their workers until the legal challenges are resolved, The New York Times reported earlier this month.

What is the vaccination rate among healthcare workers?

Most healthcare workers have been vaccinated, but some workers have resisted.

Last month, the American Journal of Infection Control published a study that found 70% of healthcare personnel were fully vaccinated as of Sept. 15. It’s likely that number has changed somewhat. Nationwide, about 73% of all American adults are fully vaccinated, according to the U.S. Centers for Disease Control and Prevention.