Overnight Health Care — Biden’s Supreme Court setback

by Peter Sullivan and Nathaniel Weixel - 01/13/22 6:22 PM ET

Welcome to Thursday’s Overnight Health Care, where we’re following the latest moves on policy and news affecting your health. Subscribe here: digital-stage.thehill.com/newsletter-signup.

The newest way to combat the COVID blues? Wordle.

Leading today: The Supreme Court blocked the federal workplace vaccine rules, a major setback for the Biden administration.

For The Hill, we’re Peter Sullivan (psullivan@digital-stage.thehill.com) and Nathaniel Weixel (nweixel@digital-stage.thehill.com). Write to us with tips and feedback, and follow us on Twitter: @PeterSullivan4 and @NateWeixel

Let’s get started.

SCOTUS blocks vaccine-or-test mandate

The Supreme Court on Thursday temporarily blocked the Biden administration’s vaccine-or-test mandate for large employers, but it allowed a separate vaccine-only mandate for health providers at federally funded facilities.

The high court ruled 6-3 against the Occupational Safety and Health Administration’s (OSHA) employer mandate, blocking it from taking effect while other legal challenges play out.

The court ruled 5-4 to keep the health care worker mandate, with Chief Justice Roberts and Justice Brett Kavanaugh joining the more liberal Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

The employer policy would have required companies with at least 100 workers to mandate all employees be vaccinated or provide weekly negative coronavirus test results and wear face coverings to work on-site.

Workplace ruling: In the case of the vaccine-or-test policy, the conservative majority ruled that OSHA did not have the authority for such a sweeping rule. COVID-19 is not a workplace hazard, they argued, but an everyday public health hazard.

“COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases,” the order said.

HEALTH WORKER MANDATE UPHELD

OSHA doesn’t have the authority to enforce the rule, but the HHS Secretary does.

“There can be no doubt that addressing infection problems in Medicare and Medicaid facilities is what [the Secretary] does.”

The practical effect of the ruling was to reinstate the federal health worker vaccine mandate in roughly half the country, where lower federal courts had blocked it while a challenge by separate groups of GOP-led states plays out.

Read more here.

BIDEN CALLS FOR EMPLOYERS TO MANDATE THEMSELVES

President Biden on Thursday appealed to states and companies to require people to get vaccinated against the coronavirus despite the Supreme Court blocking his vaccine-or-test mandate for large employers.

“As a result of the Court’s decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated,” the president said in a statement.

The president vowed to put pressure on companies to voluntarily create their own vaccine-or-test requirements.

He said the Supreme Court ruling “does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy.”

“I call on business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities,” Biden added in his statement.

Read more here.

More COVID-19 tests on the way

People wait in line to get tested for COVID-19 at a mobile testing site in Times Square

President Biden announced Thursday that his administration is purchasing another 500 million COVID-19 tests amid a surge in coronavirus cases and subsequent pressure to boost testing.

The announcement of the testing haul will add to the 500 million rapid at-home tests that Biden announced at the end of December. Those tests are slated to start being distributed later this month, and a website will be available for people to request them, for free.

The new announcement is to meet future demand after those initial tests are distributed, the White House said.

Biden made the announcement during remarks updating the public on his response to the omicron variant.

Pressure: The purchase comes as Biden has been under pressure to take stronger action on testing. Health experts have been pushing for months to make rapid tests available and say that the administration should have acted far sooner than the end of December on the announcement.

Read more here.

ALSO FROM BIDEN: NEW MASK MOVES NEXT WEEK

President Biden on Thursday said that an announcement about sending high-quality masks to Americans for free is coming next week amid a push to get people to wear more protective masks during the omicron surge.

“I know that for some Americans, a mask is not always affordable or convenient to get. So next week, we’ll announce how we’re making high-quality masks available to American people for free,” he said in remarks about the administration’s COVID-19 surge response.

Biden on Thursday also addressed the frustration among Americans with continued mask mandates and guidance.

“I know we all wish that we could finally be done with wearing masks. I get it. But there is a really important tool to stop the spread, especially the highly transmissible omicron variant. So please, please wear the mask,” he said.

Pressure here too: Sen. Bernie Sanders (I-Vt.) and over 50 Democratic lawmakers on Wednesday introduced legislation to send every person in the country a package of three N95 masks.

Read more here.

Other states eye Texas-style abortion bans

Pro-choice activists demonstrate outside the Supreme Court in Washington, D.C., Monday, November 11, 2021 as the court hears oral arguments for Whole Woman’s Health v. Jackson and United States v. Texas regarding the Texas abortion laws.

State legislators who oppose abortion rights are preparing legislation to mirror a Texas law passed last year that would allow residents to sue doctors who perform abortions, as the U.S. Supreme Court considers striking down or undermining the half-century-old decision that established a right to choose.

Bills with language similar or identical to the Texas law have been introduced in Alabama, Florida, Missouri and Ohio so far this year. In Oklahoma, state Rep. Sean Roberts (R) said this week he would file his own version.

Most of the measures allow plaintiffs to seek monetary damages against abortion providers or those who “aid and abet” an abortion that takes place more than six weeks after conception. The Ohio version would outlaw virtually all abortions.

Status update: The U.S. Supreme Court in August declined to block the Texas measure from taking effect. In December, the high court allowed one challenge to the law to move forward.

Last week, a three-judge panel from the 5th Circuit Court of Appeals suggested they might send the law to the Texas Supreme Court for review.

The point of it all: to get around the 1973 decision in Roe v. Wade, which bars a state from unduly restricting a woman’s access to an abortion. Giving residents the standing to sue an abortion provider would circumvent that restriction.

Read more here.

WHAT WE’RE READING

Obamacare is proving popular in red states that didn’t expand Medicaid (CNN)
Incidental cases and staff shortages make Covid’s next act tough for hospitals (Kaiser Health News)
A cascade of Omicron-driven shortages puts U.S. hospitals in a bind (Stat)

STATE BY STATE

Texas shows the dangers of indifference to omicron (Vox)
Less Than 10% ICU Beds Available in Illinois as COVID Hospitalizations Hit Record Levels (NBC Chicago)
1 million expired COVID tests sitting in a Florida warehouse are OK to use after FDA grants extension (ABC)