WASHINGTON — The Supreme Court on Thursday blocked the Biden administration from enforcing a vaccine-or-testing mandate for large employers, dealing a blow to a key element of the White House’s plan to address the pandemic as coronavirus cases resulting from the Omicron variant are on the rise.
But in a modest victory for President Biden, the court allowed a more limited mandate requiring health care workers at facilities receiving federal money to be vaccinated.
The vote in the employer mandate case was 6 to 3, with the liberal justices in dissent. The vote in the health care case was 5 to 4, with Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joining the liberal justices to form a majority.
The employer decision undercut one of President Biden’s most significant attempts to tame the virus and left the country with a patchwork of state laws and policies, largely leaving companies and businesses on their own.
The president welcomed the ruling in his favor, saying in a statement that it would save the lives of health care workers and patients. But he said he was disappointed that the court had overturned the employer mandate, which he said was “grounded squarely in both science and the law.”
In both the employer and health worker cases, the justices explored whether Congress had authorized the executive branch to take sweeping actions to address the health care crisis.
The unsigned majority opinion in the employer case said a statute on workplace hazards did not justify a mandate that would have required more than 80 million workers to be vaccinated against the coronavirus or to wear masks and be tested weekly. It also stressed the novelty and sweep of the mandate issued by the Labor Department’s Occupational Safety and Health Administration, or OSHA, saying Congress had not authorized the agency to act and describing its response as “a blunt instrument.”
The mandate “draws no distinctions based on industry or risk of exposure to Covid-19,” the majority opinion said, adding that it was “a significant encroachment into the lives — and health — of a vast number of employees.”
But the opinion said more tailored regulations may be lawful given that “most lifeguards and linemen face the same regulations as do medics and meatpackers.”
In a dissenting opinion, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan expressed incredulity at the court’s willingness to frustrate “the federal government’s ability to counter the unparalleled threat that Covid-19 poses to our nation’s workers.”
Regulating safety in the workplace, the three dissenting justices wrote, is precisely what OSHA is commanded to do.
They agreed that the key issue in the case was that of institutional competence to address the health care crisis.
“Underlying everything else in this dispute,” they wrote, “is a single, simple question: Who decides how much protection, and of what kind, American workers need from Covid-19? An agency with expertise in workplace health and safety, acting as Congress and the president authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?”
The wiser course, they wrote, would have been to defer to OSHA.
“In the face of a still-raging pandemic, this court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed,” the dissenters wrote of the majority’s actions in the case, National Federation of Independent Business v. Department of Labor, No. 21A244. “As disease and death continue to mount, this court tells the agency that it cannot respond in the most effective way possible.”
OSHA issued the mandate in November, making exceptions for workers with religious objections and those who do not come into close contact with other people at their jobs. The administration estimated that it would cause 22 million people to get vaccinated and prevent 250,000 hospitalizations.
The ruling means that companies across the country must now decide between protecting employees, potentially losing staff members resistant to complying and running afoul of patchwork regulations.
Several major companies, like United Airlines and Tyson Foods, already have mandates, while others had held back and waited for legal battles to be resolved. Some companies have been anxious about losing employees at a time when workers are already scarce. While firms with mandates have said those worries largely have not come to fruition, a national requirement could have helped ease those concerns.
Walmart, Amazon and JPMorgan Chase, three of the largest employers in the United States, have yet to issue broad requirements for their workers. Some companies that have waited have cited concerns about the costs of setting up testing programs and pushback from unvaccinated employees.
That second mandate applies to workers at hospitals and other health care facilities that participate in the Medicare and Medicaid programs.
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Federal judges in Missouri and Louisiana had blocked the requirement, which has exemptions for people with medical or religious objections, in rulings that applied in about half of the states. It will now go into effect nationwide.
In an unsigned opinion in the case, Biden v. Missouri, No. 21A240, the majority wrote that the health care mandate issued by the secretary of health and human services “falls within the authorities that Congress has conferred upon him.”
The governing statute gives the secretary the general power to issue regulations to ensure the “efficient administration” of the Medicare and Medicaid programs, and parts of the statute concerning various kinds of facilities generally also authorize the secretary to impose requirements to protect the health and safety of patients.
The majority wrote that the mandate “fits neatly within the language of the statute.”
The majority added that facilities that receive money from the Medicare and Medicaid programs must comply with many federal health and safety requirements.
“All this is perhaps why health care workers and public health organizations overwhelmingly support the secretary’s rule,” the majority wrote. “Indeed, their support suggests that a vaccination requirement under these circumstances is a straightforward and predictable example of the ‘health and safety’ regulations that Congress has authorized the secretary to impose.”
In dissent, Justice Clarence Thomas, joined by Justices Samuel A. Alito Jr., Neil M. Gorsuch and Amy Coney Barrett, wrote that “scattered provisions” in the statute did not justify the mandate.
Without “exceedingly clear” congressional authorization, Justice Thomas wrote, the federal government should not be allowed to force health care workers “to choose between losing their livelihoods and acquiescing to a vaccine they have rejected for months.”
“These cases are not about the efficacy or importance of Covid-19 vaccines,” he wrote. “They are only about whether” the agency “has the statutory authority to force health care workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo.”
The Supreme Court has repeatedly upheld state vaccine mandates in a variety of settings against constitutional challenges. The two cases decided on Thursday concerned a different question, that of whether Congress has authorized the executive branch to institute the requirements.
The majority opinion in the case on health care workers seemed to try to harmonize the two rulings.
“The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it,” the opinion said. “At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.”
Emma Goldberg and Lauren Hirsch contributed reporting.
How The mRNA Vaccines Were Made: Halting Progress and Happy Accidents
“I said, ‘I am an RNA scientist. I can do anything with RNA,’” Dr. Karikó recalled telling Dr. Weissman. He asked her: Could you make an H.I.V. vaccine?
“Oh yeah, oh yeah, I can do it,” Dr. Karikó said.
Up to that point, commercial vaccines had carried modified viruses or pieces of them into the body to train the immune system to attack invading microbes. An mRNA vaccine would instead carry instructions — encoded in mRNA — that would allow the body’s cells to pump out their own viral proteins. This approach, Dr. Weissman thought, would better mimic a real infection and prompt a more robust immune response than traditional vaccines did.
It was a fringe idea that few scientists thought would work. A molecule as fragile as mRNA seemed an unlikely vaccine candidate. Grant reviewers were not impressed, either. His lab had to run on seed money that the university gives new faculty members to get started.
By that time, it was easy to synthesize mRNA in the lab to encode any protein. Drs. Weissman and Karikó inserted mRNA molecules into human cells growing in petri dishes and, as expected, the mRNA instructed the cells to make specific proteins. But when they injected mRNA into mice, the animals got sick.
“Their fur got ruffled, they hunched up, they stopped eating, they stopped running,” Dr. Weissman said. “Nobody knew why.”
For seven years, the pair studied the workings of mRNA. Countless experiments failed. They wandered down one blind alley after another. Their problem was that the immune system sees mRNA as a piece of an invading pathogen and attacks it, making the animals sick while destroying the mRNA.
Eventually, they solved the mystery. The researchers discovered that cells protect their own mRNA with a specific chemical modification. So the scientists tried making the same change to mRNA made in the lab before injecting it into cells. It worked: The mRNA was taken up by cells without provoking an immune response.
Howard Solomon, 94, Dies; His Business Success Had a Personal Connection
“Forest Pharmaceuticals deliberately chose to pursue corporate profits over its obligations to the F.D.A. and the American public,” Carmen Ortiz, the U.S. attorney for Massachusetts, said when the settlement was announced.
The company denied the allegations. In a statement at the time, Mr. Solomon said, “We remain dedicated to ensuring that we operate in full compliance with all laws and regulations.”
In 2011, Forest Labs won a proxy fight against the shareholder activist Carl C. Icahn, who had argued that the company had, among other things, lost billions of dollars of shareholder value over the previous decade. Mr. Icahn continued to pursue Forest Labs with a second proxy fight in 2012, which ended with one of his nominees elected to the company’s board.
In a letter to Mr. Icahn during that fight, Mr. Solomon wrote: “Your discourse thus far has shown a striking lack of strategic ideas. Instead, it has been replete with wild and baseless accusations, innuendo and distortion of facts.”
Still, at some point, Mr. Solomon reached out to Mr. Icahn, and they had a series of dinners.
“We got friendly,” Mr. Icahn said in a phone interview. “I thought he was a nice gentleman, a courtly guy.” He added: “I didn’t agree with the way he ran the business necessarily, but he was a nice guy who was thrilled with the outcome. He made a lot of money.”
In 2013, Mr. Solomon announced his retirement as chief executive and was replaced by Brent Saunders, an executive friendly with Mr. Icahn. Then, in early 2014, Actavis (now Allergan) paid $25 billion to acquire Forest Labs. Mr. Solomon, still the chairman, left after the acquisition and formed a family investment firm with his younger son, David, who had been a Forest Labs executive.
In addition to his sons, Mr. Solomon is survived by his wife, Sarah Billinghurst Solomon, a former assistant general manager of artistic affairs at the Metropolitan Opera, and five grandchildren. His first wife, Carolyn (Bower) Solomon, died in 1991.
The Kunga Was a Status Symbol Long Before the Thoroughbred
In ancient Mesopotamia 4,500 years ago, long before horses arrived in the region, another spirited member of the equine family, the kunga, took a starring role in pulling four-wheeled wagons into battle.
Archaeologists had suspected that these animals — depicted in art, their sales recorded in cuneiform writing, their bodies sometimes laid to rest in rich burial sites — were the result of some kind of crossbreeding. But proof was lacking.
On Friday, a team of researchers reported on more than a decade of research in the journal Science Advances, concluding that studies of ancient DNA showed the kunga was a cross between a female donkey (Equus Africanus asinus) and a male Syrian wild ass (Equus hemionus hemippus).
The kunga is the first known instance of a human-engineered hybrid of two species, a production far beyond the traditional processes of the domestication of animals, the researchers found.
Eva-Maria Geigl, a specialist in ancient genomes at the University of Paris, and one of the scientists who did the study, said the breeding of kungas was really “early bioengineering” that developed into a kind of ancient biotech industry.
Like mules, which are hybrids between horses and donkeys, and which were created much later, the kungas were sterile. Each new kunga was a one-off, a mating between a wild ass stallion and a donkey.
The stallions had to be captured and kept in captivity, even though they were highly aggressive, as modern records have indicated. Dr. Geigl said that the director of a zoo in Austria, where the last captive Syrian wild asses died, described them as “furious.” Archaeological records show that a breeding center in Nagar (now Tell Brak, Syria) shipped the young kungas to other cities. They were costly animals, status symbols, and were used in war and military ceremonies.
Kungas held their high status for at least 500 years, Dr. Geigl said. Horses did not appear until around 4,000 years ago to take their place in battle and ceremony, and to contribute to the creation of other hybrids. Before the current research, the oldest known hybrid was a mule from a site in Turkey dating to 3,000 years ago. Members of the same team reported on that find in 2020.
The research team had to cope with the very poor preservation of fossils from desert areas, but used a variety of techniques to examine ancient DNA. Laurent Frantz, a paleogenomics expert at Ludwig Maximilian University of Munich, who was not involved in the study, said that despite these difficulties, the “results were very convincing,” showing that people “were experimenting with hybrid equids long before the arrival of the horse.”
Fiona Marshall, an archaeologist at Washington University in St. Louis, who has researched the prehistory of donkeys and their domestication, said the study was “enormously significant” partly because it showed that the breeders had clear intentions. The early process of domestication was always murky — probably part accident, part human intervention — but this research showed what the ancient Syrians were after.
“People wanted the qualities of a wild animal,” she said. Donkeys might have been tamer than their ancestors, the African wild ass, but the breeders in Mesopotamia wanted to back breed to other wild asses for strength and speed — and perhaps size. Although the last known living examples of the Syrian wild ass were very small, a little more than three feet at the withers, older animals of the same species were larger.
Dr. Geigl — who collaborated on the research with Thierry Grange at the University of Paris, E. Andrew Bennett, now with the Institute of Vertebrate Paleontology and Paleoanthropology in Beijing, Jill Weber at the University of Pennsylvania Museum of Archaeology and Anthropology and others — said that the team sequenced DNA from numerous sources, including modern donkeys, horses and several species of wild asses, and museum samples.
Of particular importance were the bones of 44 kungas interred at a rich burial site in Syria called Umm el-Marra. Those skeletons had earlier led Dr. Weber and others to hypothesize that they were hybrids and that they were the kungas described in tablets and represented in art.
Their teeth showed bit marks and indicated they had been fed a special diet. The new research used DNA from those kungas to compare to other species and determine that these animals were, as suspected, the result of breeding female donkeys and male Syrian wild asses.
The research team also sequenced DNA from a Syrian wild ass found at Gobekli Tepe in Turkey, an 11,000-year-old site where humans gathered for purposes still being studied, and from two of the last animals of the species, held at a zoo in Vienna.
It is a species that no longer exists. The kunga can’t be recreated, Dr. Bennett said. Donkeys are plentiful, of course, but the last known Syrian wild asses died in the late 1920s. One was shot in the wild and the other died in a zoo in Vienna.
“The recipe for making the kunga was unknown for thousands of years,” Dr. Bennett said. “And we finally decode it not even 100 years since one element has become extinct.”