Medical, legal experts weigh in on whether SCOTUS will keep gov’t in its place concerning mandates

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(Video: Fox News)

The Omicron COVID-19 variant may have rendered the U.S. Occupational Safety and Health Administration vaccine mandate case currently pending before the U.S. Supreme Court moot, a Fox News panelist has implied, given that the jab apparently no longer prevents the spread of the infection.

Justices are working with “outdated data,” Dr. Nicole Saphier insisted in the segment embedded above, adding that as a practical matter, the country needs to live “and dance” with the virus just like it deals with the flu.

“Omicron has really forced everyone to rethink COVID and especially when we’re talking about the OSHA mandate,” Saphier told “Fox News @Night” host Shannon Bream, who played soundbites from CDC Director Rochelle Walensky and Dr. Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases, talking about the current transmissibility of the variant.

“That’s based on old data, pre-omicron data, at a time when vaccines had over 90 percent ability to prevent symptomatic illness.

“At that time, yes, the majority of the people transmitting the virus were unvaccinated, but that is not the case anymore. Now that has dropped to less than 30%, and while you can have a boost from getting a booster, that is short-lived, so right now you have vaccinated-boosted and unvaccinated transmitting the virus, and as we have heard, and finally I’m glad to hear people saying, everyone is going to be exposed to this virus at some time, and thankfully, Omicron is proving to be much less severe, more mild cases,” the physician and Fox News medical contributor explained.

Dr. Saphier then seemed to pivot to warning against coercion as well as emphasizing personal responsibility.

“And, as a physician, we have never talked about punishing people for making decisions that are not good health decisions for them: Sedentary lifestyles, smoking, drinking alcohol.

“The best we can do from a public health standpoint is educate patients on the benefit and risks of vaccines, of boosting, and make sure that it is readily available and affordable for them to get it, but at that point, it should be their decision, and when this vaccine is not preventing transmission anymore, not preventing symptomatic illness, at this point, it’s more punitive,” Saphier said.

“You would never send a loved one diagnosed with cancer to a physician who is only working on outdated data. That’s what’s being discussed amongst the justices right now: Outdated data. It is not relevant, and when we have a worker shortage, a testing shortage, this is more punitive than anything. Maximum risk and minimum benefit,” Saphier added.

Bream recalled how the three liberal justices were super-spreaders — of misinformation — during the fast-tracked oral arguments and then tossed it to First Liberty Institute president Kelly Shackelford, who has filed several cases challenging mandates, including one on behalf of Navy SEALS, to provide context.

“Well, I think what most people don’t understand is, this is not about whether you agree or disagree with the vaccine, with masking, with testing once a week at your employment. This is about who has the power to make these decisions. Is it an individual and their doctor?” the attorney wondered rhetorically.

“Is it the state which has certain police powers? Is it the federal government which I think has even less ability, but that would have to go through Congress. Or is it one executive office person or maybe a couple of agency bureaucrats who were never elected in a back office that can do this?” he added.

Noting this is also a religious liberty issue, Shackleford asserted that “We’re a country; we’re not a dictatorship where a president can issue an edict and take over every major company in the country and all the health decisions of their employees.”

“So I think the justices were clear that this seems to be a pretty heavy overreach…So I’m hopeful that if a decision comes down, the justices will issue one that keeps the federal government in its proper role,” he said.

“Vaccines and boosters are what we are going to be doing moving forward to make sure that we have less hospitalizations so our already-stretched hospital systems are not overwhelmed, but I can tell you are going to need to learn to live and dance with this virus,” Dr. Saphier concluded.

“We’re going to have flu and COVID season, and at this point, we have to move forward as a nation, and accept that it will be a part of us, and start targeting the high-risk and vulnerable who will wind up hospitalized if they get COVID-19, and not the younger, healthier populations,” she added.

It’s difficult to predict the outcome of the incrementalism of the Roberts court, particularly given the many narrow unanimous or near-unanimous decisions the court issued in the previous term.

Time will tell, but many legal observers predict that the high court will toss out the OSHA mandate on large employees, but leave the mandate in the companion case, the litigation covering medical facilities that receive federal funding, in place. Chief Justice Roberts even alluded to the funding issue as a  distinction between the two cases during the hearing.

If the OSHA mandate is overruled, blue states may seek to implement a similar rule on their own, which will likely also wind up in court.

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Robert Jonathan

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