![]() ![]() Some people can’t get vaccinations for medical reasons. “I think it’s wrong to say that everyone who’s unvaccinated is just assuming the risk. “Well, one small factual correction, if I could, and then a broader legal point,” Prelogar replied. Read The New Yorker’s complete news coverage and analysis of the coronavirus pandemic.Īlito, after his self-pitying prelude, asked Prelogar to confirm that the vaccines have some risks, unlike, he said, “wearing a hard hat,” which has no “adverse health consequences.” When she noted that what risks there might be were smaller than those associated with COVID-19 “by an order of magnitude,” and that, in any event, the OSHA mandate offers a testing-and-masking alternative, Alito hardly seemed to listen-not even when Kagan jumped in to help Prelogar by noting that “regulators think of risk/risk trade-offs constantly.” When Prelogar mentioned unvaccinated workers who might be older or have comorbidities, Alito interrupted to say, “All of whom have balanced the risk differently, maybe very foolishly, but they want to balance the risks presented to their health in a different way. Elizabeth Murrill, the Louisiana Solicitor General, described what was being asked of workers at Medicare and Medicaid providers as “an invasive, irrevocable, forced medical procedure” being imposed in an unprecedented “bureaucratic power move.” That is a lot to lay on a simple shot that protects against a disease that has taken more than eight hundred thousand American lives. These are not fringe-group lawyers but the representatives of multiple states. As Justice Sonia Sotomayor put it, speaking from the government’s perspective, “If you want my money, your facility has to do this.” Justice Elena Kagan summed up the message to providers, in the context of controlling COVID-19, even more bluntly: “The one thing you can’t do is kill your patients.” Second, even though, like Alito, the lawyers challenging the mandates protested that they had nothing against COVID-19 vaccines, the thrust of their arguments was that getting vaccinated is a terrible imposition that reasonable people might be compelled to quit their jobs rather than endure. First, while the supposed problem with the OSHA mandate is that it is federal overreach, the federal interest in the context of Medicare and Medicaid is fairly clear. But that outcome is hardly a sure thing, and that is remarkable on a couple of levels. Missouri, which combines cases initiated by the attorneys general of multiple states, immediately followed the first. ![]() The oral arguments in that case, Biden v. The prospects look better for a second mandate, which applies only to workers in health-care facilities that receive Medicare and Medicaid funds, and would affect about ten million people. The tenor of the questions asked by other Justices-notably Chief Justice John Roberts-similarly suggested that the mandate, which would apply to about eighty million people, has little chance of going into effect in its present form. What was hard to miss, if not to misunderstand, was Alito’s hostility to the mandate. I’m sure I will be misunderstood.” Alito uttered those lines in a sour, singsong tone, as if he were speaking to a recalcitrant child and not, as he was, to Elizabeth Prelogar, the United States Solicitor General, who was defending OSHA in the case, which was brought by the N.F.I.B., an industry group, and twenty-seven states, all with Republican governors or attorneys general. the Occupational Safety and Health Administration, which involves OSHA’s test-or-vaccine mandate for firms with a hundred or more employees, other than those who work at home or outdoors. “I’m not saying the vaccines are unsafe,” Justice Samuel Alito said, on Friday, during oral arguments at the Supreme Court in the case of National Federation of Independent Businesses v.
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