SCOTUS Ruling on Health Care Vaccine Mandate a ‘Big Mistake,’ Stanford Professor Says

Dr. Jay Bhattacharya, a professor of health policy at Stanford University, at his home in California on April 17, 2021. Tal Atzmon/The Epoch Times

The U.S. Supreme Court ruling on Thursday allowing the Biden administration to continue mandating COVID-19 vaccines for most health care workers is “really unfortunate” and a “big mistake” from a health policy perspective, said Dr. Jay Bhattacharya a professor at the Stanford University School of Medicine.

Bhattacharya, a senior scholar of Brownstone Institute, told The Epoch Times the ruling presents a situation that is “FUBAR,” a military slang term that stands for “[expletive] up beyond all repair.”

“That’s what this is, right? This is FUBAR,” he said, adding, “From a health policy perspective, from a public health perspective, it is a big mistake.”

The Supreme Court on Thursday let stand a vaccination requirement for health care workers at places that receive funding from Medicare or Medicaid—this accounts for about 10.4 million workers at 76,000 health care facilities as well as home health care providers, according to the federal government, down from the over 17 million it originally said. The mandate has medical and religious exemptions, but does not include opt-outs for people who developed natural immunity from having previously contracted COVID-19, nor opt-outs by submitting to weekly testing.

Bhattacharya said the SCOTUS ruling is “really unfortunate,” and likely to create labor shortages in American hospitals for the foreseeable future. “It’s already the case that there’s a reduction in staff hospital beds—tens of thousands—and that’s because they’ve lost so many workers in hospitals. [Health care workers] left because they didn’t want the vaccine.”

Health care workers care for a patient in Coronado, Calif., on May 7, 2020. Mario Tama/Getty Images

A ‘Real Strange Situation’

The professor said there are two aspects that amount to what he calls a “real strange situation.”

Firstly, many health care workers who left due to the vaccine mandates are “COVID-recovered, because they’ve worked for the frontlines [for] all of 2020,” Bhattacharya said, adding that these people are “better protected against transmitting the disease than the vaccinated.”

“If you’re already naturally immune and don’t have the vaccine, you’re better protected against infection and transmission than someone that’s just vaccinated but not naturally immune,” according to Bhattacharya.

A study from Israel posted in early December 2021, which is yet to be peer-reviewed, suggested that the immunity that people have after recovering from COVID-19 is better than the protection from vaccination.

Peer-reviewed research from Qatar in late November, published in the New England Journal of Medicine, suggested that unvaccinated people who recovered from COVID-19 have little risk of getting reinfected.

The Brownstone Institute has compiled a list of 146 research studies it says demonstrate that “naturally acquired immunity is equal to or more robust and superior to existing vaccines.”

Secondly, health authorities across the United States are allowing health care workers who have mild or no symptoms who have COVID-19 to return to work to alleviate staffing shortages amid the spread of the highly contagious Omicron variant, Bhattacharya noted. “Of course, they’re vaccinated, and so they’re allowed to come back,” he said.

“So put those two pieces together, this vaccine mandate gets rid of the natural immune-unvaccinated [and] basically induces hospitals to permit COVID-positive vaccinated workers to work,” Bhattacharya said.

On Twitter, he said, “The vax does not halt transmission, so no marginal benefit to patients regarding covid risk either.”

“The vaccine mandate in this case actually may result in more exposure of patients to the virus than otherwise would have happened without the vaccine mandate,” Bhattacharya told The Epoch Times.

In a statement to The Epoch Times, Chiquita Brooks-LaSure, administrator of the Centers for Medicare & Medicaid Services (CMS) said the agency is “extremely pleased the Supreme Court recognized CMS’ authority to set a consistent COVID-19 vaccination standard for workers in facilities that participate in Medicare and Medicaid.”

“Vaccines are proven to reduce the risk of severe disease,“ the federal agency asserted. ”The prevalence of the virus and its ever-evolving variants in health care settings continues to increase the risk of staff contracting and transmitting COVID-19, putting their patients, families, and our broader communities at risk. And health care staff being unable to work because of illness or exposure to COVID-19 further strains the health care system and limits patient access to safe and essential care.

“CMS is already implementing its health care worker vaccination rule in 25 states and territories that were not covered by preliminary injunctions. Today’s decision will enable us to fully implement this rule, and we look forward to working with health care providers and their workers to protect patients. We will continue our extensive outreach and assistance efforts encouraging individuals working in health care to get vaccinated.”

California’s frontline health care workers held simultaneous protests against the government's mandatory vaccination order at Kaiser Permanente-Riverside Medical Center in Riverside, Calif., on Aug. 21, 2021.  Linda Jiang/The Epoch Times

HHS Secretary: Upholding COVID-19 Vaccine Mandate ‘Will Undoubtedly Save Lives’

In the ruling (pdf), five justices noted that the HHS secretary “determined that a COVID-19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.”

The justices also wrote that the HHS secretary, Xavier Beccera, cited data prior to the spread of the Omicron variant that suggested that the spread of the COVID-19 virus “is more likely when healthcare workers are unvaccinated.”

“Upholding the requirement that health care workers be vaccinated will undoubtedly save lives. HHS will enforce it,” Becerra said in a statement on Twitter late Thursday, referring to the SCOTUS ruling.

Biden in a statement Thursday praised the ruling by the Supreme Court, saying the decision “will save lives: the lives of patients who seek care in medical facilities, as well as the lives of doctors, nurses, and others who work there.”

“It will cover 10.4 million health care workers at 76,000 medical facilities. We will enforce it,” he said.

When the mandate was announced by CMS in November 2021, HHS said it would cover approximately 76,000 providers and over 17 million workers. The White House and the agency did not respond to requests for comment about the discrepancy.

Lower courts blocked the mandate from being enforced in certain parts of the country before the Biden administration sought a stay from SCOTUS in mid-December.

The CMS temporarily suspended the mandate’s enforcement nationwide in early December and later reinstated its mandate to apply to facilities in half of the U.S., where the mandate hadn’t been halted by the courts.

The latest SCOTUS ruling means all facilities funded by Medicaid or Medicare across the country must comply with the COVID-19 vaccine mandate.

Zachary Stieber contributed to this report.

Editor’s note: This article has been updated with a statement from CMS.