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Covid vaccination returns as battleground between Biden administration, states

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By Kenneth Tiven in Washington

Medical experts estimate the USA could see a million new cases of Omicron Covid virus a day if the current surge rate of 50% keeps growing.

The death rate is significantly less than for the Delta variant but again those who have not been vaccinated are more likely be seriously ill and ultimately dead.

In the next few weeks, the US Supreme Court will take up the issue of President Joe Biden’s ability to require vaccines for health-care workers at facilities that receive Medicare and Medicaid funding.

Unfortunately, the political identity war in America now demands a fight against vaccines and this is echoed by social media sites, conservative media and politicians trying to please their voters.

American states have the legal right to oppose federal regulation in court as we have seen on voting rights, abortion rights and now on issues of public health and safety. Some red state injunctions against this policy means the Administration is asking the Supreme Court to lift injunctions issued in lower federal courts.

The Biden administration argues that federal law authorizes the Centers for Medicare and Medicaid Services (CMS) to condition federal funds on health care institutions meeting “requirements” in the interests of patients’ “health and safety.” Much of the opposition to vaccinations is couched as a religious belief.

Twice now, in two months, a six-justice majority has flicked away claims from religious health care workers who assert a First Amendment right to refuse vaccination against the coronavirus. A majority of the Supreme Court seems unlikely to find that religious liberty claims require a near blanket exemption to COVID vaccine mandates.

However, and there is always a however, three justices led by Neil Gorsuch, say there is a First Amendment right to refuse the vaccine on religious grounds. They defend this position with rhetoric that undermines the constitutional foundation of all vaccine mandates.

With Justices Clarence Thomas and Sam Alito, this trio rejects the principle that preventing the spread of communicable diseases qualifies as an inherently compelling state interest. They see the religious angle as the wedge to accomplish this.

For whatever reason Justices Kavanaugh and Barrett, the two latest Trump appointees, aren’t in agreement. For now these two junior justices appear to be unwilling to exacerbate the pandemic in the name of religious liberty.

Gorsuch’s most alarming argument dismisses the notion that the government’s interest in halting the spread of a lethal global virus is always compelling ‘because a compelling interest “cannot qualify as such forever.”

Eight years ago the Supreme Court decided to gut the Voting Rights Act’s pre-clearance provision because it had successfully suppressed racist voting laws. The same logic is in Gorsuch’s heart. As the late Justice Ruth Bader Ginsburg pointed out then, scrapping a law because of its success is “like throwing away your umbrella in a rainstorm because you are not getting wet.”

This time Gorsuch suggests that the more effective the umbrella the less government interest there can be in requiring them. Take the logic a step further: unless a disease is actively killing tens of thousands of Americans a month, the state cannot curb its spread in a manner that hampers “religious liberty.” Under this theory, mandatory vaccination laws for all kinds of diseases—polio, smallpox, measles—would be suspect, particularly if those diseases no longer ravage the population.

Also Read: Courts have played important role to safeguard constitutional rights, says CJI Ramana at 5th Lavu Venkateswarlu Endowment Lecture

While the anti-vaccination effort has grown for various reasons in the last two decades, most of the current litigants have no prior or personal religious objection to vaccinations. Most have had a flu short, or a tetanus shot, or some other medical treatment. The current attack on medical reality is obviously a political act, not a religious last stand. These latest rulings, especially on lower federal courts, make religious liberty less a defense against overreach by the state than a weapon against people with whom they disagree.

Recently when Donald Trump told a meeting of several hundred people that he had gotten his booster. They disagreed and booed him. He seemed shocked.

Year-end holiday travel in the USA has gotten more difficult in the past few days as the shortage of healthy staff has snowballed because of Omicron infections. This has been especially noticeable by public transport companies, with airlines cancelling thousands of flight between the year end festivals. No one seems shocked by this, just angry and frustrated.

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