Abortion, Vaccine Mandates, and Media Outrage Mongering

The other day I stumbled upon a classic example of how the media takes a non-partisan issue, frames it as one, and stirs up the kind of outrage that keeps people coming back for more. I wouldn’t have realized this sleight of hand, by Vox, had I not been researching the legal issues surrounding President Biden’s workplace vaccine mandate. The Court of Appeals for the 5th Circuit has temporarily blocked the vaccine mandate citing constitutional concerns. Vox took the opportunity to equate the court’s decision to block the mandate with the same court’s decision to reverse a block the lower District Court had placed on Texas Senate Bill 8 (SB8), which effectively bans abortions after 6 weeks. Vox implies that these two laws got unequal treatment because the judges on the 5th circuit were GOP appointees. Their claim is that an abortion bill was protected while a vaccine mandate was attacked, and that this is likely due to judicial partisanship. Does this implication hold up to critical analysis?

First, let’s talk about what happened in the 5th Circuit’s decision to reverse the block the District Court had placed on SB8. SB8 allows private citizens to sue anyone who performs an abortion or aids in the facilitation of an abortion to a woman more than 6 weeks pregnant. Notably, public officials are barred from enforcing this law, they cannot sue or arrest anyone for getting or facilitating an aborition. The private citizens who successfully sue are awarded money damages as well as having their attorney fees paid for. Naturally, providers are hesitant to provide abortions, as they could be hit with money damages and attorney fees. There is no doubt that the constitutional right to a pre-viability abortion, found in Roe v Wade and affirmed in Planned Parenthood of Southeastern Pennsylvania v Casey, is being chilled in Texas. A multitude of organizations came together to file a lawsuit in Federal Court, Whole Woman’s Health v Jackson, to challenge the law.

The parties suing, in this case (Plaintiffs), sued a multitude of Texas agency heads, state judges, their clerks, and one private citizen, Mark Dickson (Defendants). They sought a pre-enforcement injunction, which essentially means that they asked the court to block Defendants from enforcing the law before anyone had even sued an abortion provider yet. Because of the 11th amendment, to sue the state officials in Federal Court, Plaintiffs must show that the officials have a connection to the enforcement of the law. The problem is that SB8 prohibits any public official from enforcing the law. It was logically impossible to show the public officials were related to the enforcement as only private citizens can enforce it. The 5th circuit held they did not have jurisdiction over the public officials in this case. What about the private citizen, can’t Mr. Dickinson enforce SB8 and therefore be sued here? The 5th circuit held that the claim against him was so intertwined with the claim against the public officials that the court did not have jurisdiction over Dickson either. When a court does not have jurisdiction over any of the Defendants then the case cannot proceed.

It is notable that the court recognized the constitutional concerns inherent in SB8. But, they could not legally hear the case. The 5th Circuit is not making this up as they go, they are bound by precedent from the Supreme Court. The Plaintiffs here appealed the 5th Circuit’s decision to the Supreme Court and they concurred with the 5th Circuit that jurisdiction over Defendants likely did not exist in the case.

Now let’s contrast this with Biden’s Vaccine Mandate. The Biden administration is attempting to mandate vaccination against COVID-19 through OSHA. OSHA generally regulates the safety and health standards of work places. The mandate gives employers with over 100 employees 2 options, either make your employees get vaccinated or, test them weekly for COVID and make them wear masks. Costs for tests and masks would come out of the employee’s pocket. Naturally, companies will require vaccination as imposing testing costs on employees will be very unattractive. OSHA has never before forced employers to require their employees to be vaccinated against anything. It is highly questionable whether OSHA has this power. Congress grants OSHA its authority, and the power to require over 80 million Americans to be vaccinated is a very broad one. When federal agencies want to exercise such far reaching power, courts like to see that Congress has explicitly granted them that power. Congress has not done so.

The relevant case is BST Holdings v OSHA. A group of companies is suing OSHA over the mandate. Remember in the SB8 case how the court had to figure out if Defendants could enforce the law? Well here that question is easily answered. OSHA is the sole entity that can enforce the vaccine mandate. The 5th Circuit promptly blocked the bill, temporarily, citing constitutional concerns. Notice the 5th Circuit cited constitutional concerns for both SB8 and the vaccine mandate. In the first, they had no jurisdiction to decide the matter, and in the second that problem was not present. In the first they had no power to block the law, and in the second they did.

With that in mind, let’s read Vox’s interpretation of the two cases:

https://www.vox.com/22770305/biden-vaccine-mandate-workplace-osha-supreme-court

I will let you decide for yourself if you think their issue-framing is a fair depiction of what happened here.

Had the chance to think about it? Here’s what I think. At best, Vox’s reporting is disingenuous, and at the worst it’s an attempt to monger outrage from their readers while throwing our judicial system under the bus. Big bad conservative judges allow unconstitutional abortion bill to slide bye and jump all over a perfectly fine “workplace health rule”. Their contention, that these judges are not doing their job, but are playing partisan politics is completely baseless. The court did nothing to make this a liberal vs conservative issue, but Vox took the opportunity to make it one themselves.

Journalists are in an important position in our society. They are supposed to be the telescope for the average person to see what is happening in the world. Not all of us can understand or keep up with every topic, so we lean on journalists to provide insight so we can shape our views and opinions on current events. It’s dangerous to frame our judicial system as one that is deeply partisan and cannot fairly decide matters. America has long rested on the rule of law, every successful and stable society does. To undermine the faith the public has in our legal system to monger outrage is a blatant disregard to their duty as journalists.

Please comment or ask any questions below!