The philosophical divisions cleaving our society threaten the nation’s welfare on many levels. These divisions have infected health care, as well.
We saw this at play in recent rulings from federal courts in Missouri and Louisiana, which prevent the Centers for Medicare and Medicaid Services (CMS) from requiring COVID vaccination in half the states for workers in health care facilities with Medicare and Medicaid patients. One of us has commented on the legal questions involved, but it is also critical to understand the philosophical issues that seem at least partly at work in decisions by these conservative jurists.
Health care is fully entangled in a long-standing, fundamental clash over the role of the state in American life and the balance of rights and responsibilities between individuals and the larger society. Some vocal conservatives see public health initiatives as “medical tyranny” — that is, part of a liberal effort to control people’s lives, presumably in pursuit of some sweeping authoritarian agenda. For health professionals who have dedicated their lives to using science to treat the sick and improve the nation’s health — and who put their own lives in jeopardy to care for COVID patients during the pandemic — this accusation is almost beyond comprehension.
But it becomes more comprehensible when seen as part of a libertarian agenda to shrink the role of government in every area of the nation’s life. As conservative commentator Grover Norquist once famously opined, “I simply want to reduce it [the government] to the size where I can drag it into the bathroom and drown it in the bathtub.”
One strategy in this libertarian movement is to limit the executive branch’s discretion in implementing federal legislation. Recognizing its own lack of technical expertise, and the cumbersome legislative process, Congress often passes laws that give federal agencies considerable leeway in deciding the details of implementation. This is common in health care, where Congress lacks critical medical knowledge and science can evolve rapidly.
For example, the legislation creating the Medicare and Medicaid programs granted the Secretary of Health and Human Services discretion in setting standards to protect the “health and safety” of Medicare and Medicaid beneficiaries receiving services from health care providers. On behalf of the Secretary, CMS has used that authority to require that providers be accredited by the Joint Commission, which in turn imposes a wide variety of quality and safety standards. Among other requirements, CMS sets infection-control requirements for nursing homes and requires that Medicare Advantage plans provide access to a variety of specialty services and accurately market their plans.
The Supreme Court affirmed the constitutionality of such delegations of authority in the widely cited Chevron case, in which it ruled that the courts should defer to agency decisions on matters where Congress has not specifically opined on the topic and the executive branch action is reasonable. Of course, granting discretion to the executive branch makes particular sense during a pandemic when science is rapidly evolving, and government must react quickly to protect the health and safety of the population.
The Louisiana and Missouri rulings, however, assert that CMS’s decision to require vaccination was too consequential to be delegated to the executive branch and requires direct congressional authorization. This puts the Chevron doctrine in question, and offers the opportunity, as noted, for conservative jurists to place dramatic new restrictions on government authority by requiring congressional interventions that may be dangerously delayed, ill-informed, or driven by politics and ideology.
In the meantime, health care facilities, facing labor shortages, are backing away from previously announced vaccination mandates, and many of the nation’s sickest and most vulnerable patients — the elderly, disabled, and poor — face the danger of contracting COVID in the hospital, along with the ailments or injuries that first drove them to seek medical attention.
Health professionals live by the precept, “First, do no harm.” Knowingly and unnecessarily exposing patients to the additional risk of a potentially fatal or disabling illness shatters this principle. Indeed, more than 100 national and state organizations of health care professionals have affirmed that vaccine mandates are the “logical fulfillment of the ethical commitment of all health care workers to put patients as well as residents of long-term care facilities first and take all steps necessary to ensure their health and well-being.” It is hard to see how individual rights can justify refusing vaccines.
We must collectively decide how to balance individuals’ rights to medical autonomy with the rights of the sick and vulnerable. The recent vaccination rulings tilt the playing field toward the rights of the individual — a libertarian goal — and against the rights of the larger society. How far we go down this pathway will profoundly affect not only our ability to conquer the pandemic but our long-term collective health, safety, economic well-being, and stability as a nation.