Biden v. Missouri: The Intersection of Public Health and Individual Liberty

Two years after the COVID-19 pandemic wreaked havoc and insecurity within not only the United States but also globally, the debate surrounding the government’s authority to impose restrictive measures to protect public health has only intensified. From mask mandates to vaccination requirements, public health policies have faced both considerable praise and backlash, predominantly rooted in the ethical controversy of limiting individual freedom to favor the public good. In the midst of this moral dilemma, the Supreme Court has ruled on two cases regarding COVID-19 vaccination mandates thus far: Independent Business v. OSHA and Missouri v. Biden. While the former case deemed it unconstitutional for the Biden administration to require large businesses to either implement vaccination requirements or routine testing and mask-wearing, the court made a contradictory decision in the latter case. These differing decisions illustrate the politicization of public health throughout the pandemic on the fundamental debate of public good and individual freedom. To fully understand this dilemma and its implications, the circumstances of Biden v. Missouri must be further contextualized.

The Biden v. Missouri case was sparked by the Secretary of Health and Human Services’s (HHS) interim final rule in November 2021 to require all healthcare workers in facilities receiving Medicare and Medicaid funding to be vaccinated against COVID-19 (with exemptions for medical or religious purposes). These two programs are administered by the Secretary of the HHS and provide health insurance for a large portion of the elderly, disabled and low-income Americans. The Secretary has general statutory authority to enact regulations as deemed necessary to efficiently administer their functions, the most basic of which being the protection of patients’ health and safety. To do so, the Secretary establishes various conditions that facilities administering Medicare and Medicaid must comply to receive funding. The most recent and controversial condition passed on November 15, 2021 imposed a COVID-19 vaccination mandate with the following justifications: reducing the virus’s spread based on data demonstrating vaccine’s effectiveness, avoiding risks to patients’ health concerns with fear of exposure while seeking medical care, and preventing staffing shortages due to COVID-19-related disruptions. Despite this reasoning, the states of Louisiana and Missouri filed separate actions challenging the rule, and the government later asked the Supreme Court to stay both District Courts’ preliminary injunctions against it.

In its per curiam opinion, the Supreme Court concluded that the Secretary’s interim final rule fell within their statutory authorities that Congress bestowed upon them. The rule fell within Congress’s authorization of the Secretary establishing conditions for Medicare and Medicaid funding as “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.”  42 U. S. C. §1395x(e)(9). In imposing this rule, the Secretary determined that the COVID-19 vaccine would substantially decrease the likelihood of contagious transmission of the dangerous virus that categorizes this ongoing pandemic. Thus, the Court found that their rationale aligns with the fundamental medical principle: first, do no harm. Moreover, the Court cited longstanding precedents of HHS, notably that Medicare and Medicaid facilities were always obligated to adhere to certain conditions to receive funding. Those conditions often were directed to healthcare workers (i.e. washing hands, sterilizing equipment) and justified by the Secretary to facilitate infection control. Lastly, vaccination requirements for healthcare employees are commonplace in the nation’s health system, notably for infectious diseases like influenza. These precedents sustain a rational basis for the new vaccination mandate, which has received generous support from healthcare workers and public health organizations.

The per curiam opinion also held that issuing the interim final rule, after finding good cause that any further delay would threaten patient health and safety, was not arbitrary or capricious. The Secretary’s justification of mandating vaccines ahead of the winter flu season to significantly minimize COVID-19 infections was deemed sufficient to forgo notice and comment. Additionally, the court agrees that the good cause exception constitutes that the Secretary was not required to “consult with appropriate State agencies” 42 U. S. C. §1395z, prior to issuing the interim rule. The court also found that the directive in §1395 stating that federal officials may not control the provision of medical services or the selection of tenure for any healthcare employee was not violated by the rule, as applying this section would hold every action of the Secretary unlawful. Based on these conclusions in the context of unprecedented circumstances, the applications for a stay referred to the Court were granted.

There were two dissenting opinions delivered by Justices Thomas and Alito, joined by Justices Gorsuch and Barrett. Justice Thomas argued that the Government did not have a compelling justification demonstrating that the Center for Medicare and Medicaid Services (CMS) had statutory authority to issue the rule. He argues that the provisional reference to infection control is inadequate to authorize an omnibus vaccine mandate and that Congress could have explicitly granted CMS this authority if it wanted to, but did not. Moreover, he voices concern for healthcare employees compelled to undergo unwanted medical procedures that “cannot be removed at the end of the shift” to maintain their livelihoods. Justice Alito joined in dissent highlighting the perceived contradiction between the CMS’s claim that an emergency requires swift action and the repeated delays in implementing said action, as the vaccines were widely available ten months prior to the mandate and millions of healthcare workers were already vaccinated. This criticism renders the “good cause” justification insufficient in Alito’s opinion. Additionally, he emphasizes the absence of public feedback as the Secretary, an unelected official in the executive branch, issued the interim rule. Perhaps one of the most significant implications of the per curiam opinion is voiced by Alito in saying “the Court shifts the presumption against compliance with procedural strictures from the unelected agency to the people they regulate.”

Biden v. Missouri upheld salient public health concerns that affected some 10,000,000 healthcare workers and millions of Americans covered under Medicare and Medicaid. While the decision is a win for public health officials and others who value preventative measures against COVID-19, the dissenting opinions emphasize the ongoing reluctance and controversy with mandatory vaccinations. They voice concerns over the efficacy of the vaccination and preserving individual freedom to receive medical practices. This contrasting opinion prevailed in the Independent Business v. OSHA decision, which continues to fuel the dilemma of balancing individual freedom with public health regulations. However, Biden v. Missouri made a significant distinction in the target population of these proactive measures by specifically holding healthcare workers responsible for adhering to them. The potential impacts of this decision in healthcare facilities outside the jurisdiction of the HHS, such as privatized hospitals, remain to be seen. Another precedent was established by allowing an unelected federal official to implement vaccination mandates in medical facilities to protect the health and safety of patients and employees alike. However, the characterizing lack of notice-and-comment rulemaking also leaves room for the persistent dilemma of checks and balances to augment. This poses concerns about the potential overpowering expansion of executive authority and compromised representative democracy. These central dilemmas about the legitimacy of public health regulations and authority of executive officials will be critical in determining the United States’s continued response in navigating out of the pandemic.

Ashley Ganesh is a freshman at Brown University, concentrating in Business Economics. She is a staff writer for the Brown University Undergraduate Law Review and can be contacted at ashley_ganesh@brown.edu.