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Horowitz: How states should respond to the CMS mandate on health care workers

Op-ed
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States must ban all hospitals from requiring the expired COVID shots and should offer to pay any federal fines incurred by health care institutions. It’s that simple.

In his opinion in the OSHA mandate case (National Federation of Independent Business v. Department of Labor), Justice Gorsuch wrote, "If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the [major questions] doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress." Well, I would add that all these COVID policies should flow from an even more direct avenue – the state legislatures. It’s time for them to get on the playing field.

The Supreme Court rulings are nothing to celebrate. The loss in the CMS health care mandate case is devastating to the health, morale, and liberties of this country. Now, the federal government can force all health care institutions to mandate a shot that doesn’t work, likely causes more transmission, and for which there are over 1 million adverse events reported to the CDC’s own surveillance system. This is the clearest violation of the Nuremberg Code in the history of public health. It will also further exacerbate this budding culture of apartheid and lack of compassion permeating America’s hospitals. States must not allow this to stand. In a sane world, every GOP governor would unite at a conference and announce the following ideas:

  • A complete ban on vaccine mandates on both employees and patients: Biden has a 33% approval rating, and we have the facts and morality on our side. It’s time for Republican governors to stop acting as if Biden holds all the cards just because he can threaten Medicare funding. The bottom line is that Biden could not win a PR fight with 20 or so states applying anti-discrimination law the way it would be enforced in any other context. These governors would explain to the American people how the shots never stopped transmission and appear to spread Omicron more and how it is completely backward for states to allow vaccinated workers with COVID to come to work but not those who are healthy without the shot, especially those with prior infection. At some point, facts have to matter.
  • Pay the fines: At the same time, the states should promise to pay any federal fines that would be levied against them for not enforcing the mandate. Although the threat to withhold Medicare and Medicaid funding is bigger than any fine, it is hard for CMS to enforce this against half the country.
  • Impose workplace injury liability: Also, as part of the carrot and stick approach, states should pass a law subjecting anyone who enforces the federal mandate to workplace injury liability without any caps for damages. The reality is that the hospitals know all too well that injuries from the shot are extremely common.
  • Religious and medical exemptions: At a minimum, states should force hospitals to accept this simple exemption form created by the Florida Department of Health:

  • Patient Bill of Rights: The culture of cruelty in the hospitals has spilled over from staff to patients. We are hearing of hospitals engaging in maltreatment of those without the shots, confiscating medicines, denying treatment, preventing patients from leaving, and denying organ transplants based on vaccination status. We need a patients’ bill of rights to pass every state legislature, bringing anti-discrimination law into the 21st century.

Thanks to the CMS mandate, we’ve lost tens of thousands of staffed hospital beds. States cannot allow this to continue without a response. Even the OSHA mandate is not over with. Although the court placed an injunction on the order, the Biden administration is promising to use its leverage to “convince” businesses to follow suit. Biden said that the court injunction does “not stop me from using my voice as President to advocate for employers to do the right thing.” Biden further called on Big Tech to help him censor the voices of anyone with concerns over the shots.

As such, it’s time to dispel the notion that somehow these mandates are emanating from any semblance of a free market and private-sector conditions. They are irredeemably tainted by federal coercion. The only way for states to bring back the equilibrium of the free market is to completely ban the mandates altogether. These same RINO governors who had no problem destroying small businesses with a complete shutdown or capacity regulations now want to take a hands-off approach as the federal government leverages them to engage in senseless discrimination.

The notion that our law tolerates discrimination to the point that someone is boxed out from a job and accessing vital services is unfounded. In 2017 (Packingham v. North Carolina), the Supreme Court held that protecting children from sex offenders was not a sufficient "compelling interest" to restrict a sex offender from using social media because social media is a "protected space." In the opinion, the government acknowledged that a person without access to the big social media websites cannot function in society. "By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge."

Now if the court is willing to say that a sex offender can prowl the internet, even though there is reasonable suspicion that such access will harm children, then certainly a person without the jab has a right not to be drummed out of all of society when his choice absolutely affects nobody but himself.

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