By Michelle Hazekamp
January 18, 2022
Wednesday, January 12, the Supreme Court of the United States ruled opposite "stays" concerning the OSHA vaccine mandate for companies with 100 employees or more and health care facilities receiving federal Medicare and Medicaid funding. Businesses were handed a victory while employees in health care were awarded a grave disappointment in our constitutional process. The opinion put forth against OSHA's ETS (emergency temporary standard) in a 6-4 decision, stated that the Covid vaccine mandate is unconstitutional, while health care facilities that receive Medicare and Medicaid funding was issued a constitutional mandate pass. What does this mean? It means SCOTUS just betrayed the American people and opened the door for Congress to enact future laws enabling vaccine mandates. The SCOTUS ruling has greatly expanded the power of the Federal Government into an area where they previously have had no authority; the government can own your body.
How Does SCOTUS Base Their Opinions?
Under our federal system of separation of powers, Congress gets to make laws that are within the authority of the federal government. The executive branch enforces these laws, and the judiciary decides whether they are constitutional. The judiciary also decides whether Congress authorized the executive branch to make certain decisions. In the case for OSHA's ETS, it was determined that Congress did not grant broad authority to the Executive branch regarding the OSHA laws, but, they also left out a very important distinction; that your body belongs to you! SCOTUS then determined that Congress has given broad authority to institutions who receive federal funding.
What is a "Stay?"
A stay is the act of temporarily stopping or suspending a court case. In the 6-4 decision, (with Chief Justice Roberts and Justice Kavanaugh voting with the majority against the three "liberal" justices) the Supreme Court stay against the ETS is a temporary suspension at this time. The case will go back to the Sixth Circuit Court to consider the merits of those objecting to the mandate. The court will undoubtedly take into consideration the Supreme Courts opinion while the stay will remain in place until the Sixth Circuit court review is complete and/or any second appeal comes to the Supreme Court.
With a mandate that would have effected over 80 million people, the Supreme Court in this case recognized the ETS to be unconstitutional per the Occupational Health and Safety Act, which limits OSHA's authority to work place safety standards only. The Covid vaccine mandate is a "broad public health measure," and is not an occupational hazard, which exceeds outside the realm of OSHA. For instance, employee's are exposed to Covid outside the workplace as well, such as the stores, family members, etc., and OSHA lacks the authority over all public health. OSHA most likely will not continue their litigation in front of the Sixth Circuit Court because doing so would be futile in light of the Supreme Courts opinion. It is most likely OSHA will withdraw the ETS.
Medicare and Medicaid Recipients Remain Under the Mandate
In a 5-4 decision, (Chief Justice Roberts and Justice Kavanaugh voted with the "liberal" justices this time) the Supreme Court made its opposing opinion for facilities receiving federal funding because tax dollars are involved. This allows the government authority to require health care providers enforcement of the mandate. The Court majority concluded Secretary of State, Becerra “did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID-19.”
Important provisions of the CMS (Central Medicare and Medicaid Service) interim rule include:
Covered providers and suppliers must implement mandatory vaccination policies that include a process by which staff may request an exemption from the vaccination requirement for medical or religious reasons in accordance with applicable federal law;
There is no “test out” option;
Only religious or medical exemptions are permitted;
Covered providers and suppliers must track and securely document the vaccination status of each staff member, including those for whom there was a temporary delay in vaccination;
Covered providers and suppliers must implement a process for ensuring additional precautions intended to prevent the transmission and spread of COVID-19 for all staff who are not fully vaccinated for COVID-19; and
Facilities that do not comply with the rule risk loss of funding.
Phase 1 – January 27, 2022: All covered staff must receive their first dose of a multi-dose COVID-19 vaccine, unless they have pending requests for, or have been granted, medical or religious exemptions, or for whom COVID-19 vaccination must be temporarily delayed, as recommended by the Centers for Disease Control and Prevention, due to clinical precautions and considerations.
Phase 2 – February 28, 2022: All covered staff must be fully vaccinated or have received an approved medical or religious exemption.
Does the Federal Government Have Authority Outside the Workplace?
This is a good question and seems quite confusing after the decisions made by SCOTUS. When we compare the two SCOTUS opinions, one could ask how is it that OSHA lacks authority outside the workplace, but health care facilities do not? They are also places of work where employee's access the outside world once their work shift is over. Are health care workers immune to Covid while at home or at the store outside of their workplace? We understand that OSHA deals specifically in regards to workplace safety and not public safety, but does the federal government truly have authority over health care workers outside the workplace because of federal funding? Especially when the shots do not prevent Covid, nor the spreading of it. This is a great example of how we have given too much power to our government by allowing them to install programs that make us dependent upon them, and SCOTUS further expanding their potential over-reaching authority.
Health care workers still have the option of exemptions, with the exception of five states (California, Maine, W. Virginia, Mississippi, New York), that do not allow religious exemptions. The Supreme Court in Mississippi in 1979, struck down their citizens right to religious exemption in Brown vs. Stone as an equal protection violation and thus unconstitutional. Yet, the Constitution guarantees our religious liberty in the First Amendment; Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. According the the First Amendment, we have a basic right under common law, basic morality and right to live according to our religious or spiritual beliefs without interference from the Federal Government. So how can our rights for religious liberty be declared unconstitutional when the Constitution clearly says otherwise?
Additional Rights and Protections Afforded to Us
Since the end of WWII, we have been awarded even further protections, which SCOTUS also violated on Thursday. Article 7 of the 1966 International Covenant of Civil and Political Rights as put forth by the Geneva Convention states: No one shall be subjected without his free consent to medical or scientific experimentation.
As with the Covid vaccines, not all vaccines are subjected to long term safety studies, nor are they subjected to proper randomized, double-blinded, placebo-controlled studies. Some vaccines, such as the HPV Gardasil vaccine, are “fast-tracked” for immediate use without any kind of clinical trials. The flu vaccine changes from year to year, and therefore cannot undergo any kind of adequate safety and efficiency trials.
Furthermore, the Universal Declaration of Human Rights put forth by the United Nations states in Article 12: No one shall be subjected to arbitrary interference with his privacy, family, [or] home. … Everyone has the right to the protection of the law against such interference.. Mandated vaccines are a direct interference with families by forcing medical treatment without consent, and are thereby a violation of Article 12.
Similar to the First Amendment of the Constitution, Article 18 states: Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom…either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance. In addition, any law mandating vaccines that calls for the quarantine or banishment of “the unvaccinated” from a public space, such as a school or market, simply for exercising their right to practice their religious or personal beliefs through use of a vaccine exemption is a violation of Article 18 and the First Amendment.
Article 25: (1). Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care. The health and well-being of a family is determined by the family. It is not subject to the interference of the government.
And then there are the Nuremberg Codes, designed to prevent un-authorized, mass medical experiments upon the world population after the horrific acts performed on millions of Jews by the Nazi's during WWII. The very first paragraph of the Nuremberg Codes sums it up:
The Voluntary Consent of the Human Subject is Absolutely Essential.
This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved, as to enable him to make an understanding and enlightened decision. This latter element requires that, before the acceptance of an affirmative decision by the experimental
subject, there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health or person, which may possibly come from his participation in the experiment. The duty and responsibility for ascertaining the quality of the consent rests upon each individual who initiates, directs or engages in the experiment. It is a personal duty and responsibility which may not be delegated to another with impunity.
Not the End of the Battle
With or without the mandate, employers can still enforce vaccination on their employees, as it is their right to do so. However, they must except a religious or medical exemption. There is still hope as I don't see this being the end of the battle. Until Congress enacts a law, the mandates will be brought in front of the Supreme Court again. We must continue to fight for our God given freedoms guaranteed to us by the Constitution while we still can.