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During a Jan. 7, 2022, U.S. Supreme Court hearing on the constitutionality of the Biden administration’s workplace COVID-19 vaccine mandates, Justice Sonia Sotomayor weighed in on the seriousness of the highly virulent omicron variant, saying at one point: “We have over 100,000 children, which we’ve never had before, in — in serious condition and many on ventilators.”
A number of Snopes readers wrote to us noting that the statement didn’t appear to jibe with the government’s own statistics and asked us to verify whether she had actually said this. We compared the quote to the official transcript of the Supreme Court’s oral arguments that day and determined that it was, in fact, correctly attributed to her. We compared Sotomayor’s statement to recent U.S. government data and statements made on television by Centers for Disease Control and Prevention (CDC) Director Dr. Rochelle Walensky and determined that Sotomayor was indeed incorrect when she said 100,000 children were in serious condition, with many on ventilators.
Here is the quote in context, from the transcript:
Mr. FLOWERS [Benjamin M. Flowers, solicitor general of Ohio]: Finally, the other point in the public interest is one awkwardness of this situation is that the ETS [Emergency Temporary Standard] is focused on what was really a different pandemic. It’s all about the Delta variant. Now we are on to Omicron.
And as my presence here as a triple vaccinated individual by phone suggests and as Justice Sotomayor suggests and as the amicus brief from the American Commitment Foundation shows, vaccines do not appear to be very effective in stopping the spread or transmission.
They are very effective in stopping severe consequences, and that’s why our states strongly urge people to get them. But I think that makes it very hard to look at the numbers they give and assume that they still apply today —
JUSTICE SOTOMAYOR: Counsel —
MR. FLOWERS: — where things are entirely different —
JUSTICE SOTOMAYOR: — counsel, those numbers show that Omicron is as deadly and causes as much serious disease in the unvaccinated as Delta did. The numbers, look at the hospitalization rates that are going on. We have more affected people in the country today than we had a year ago in January.
We have hospitals that are almost at full capacity with people severely ill on ventilators. We have over 100,000 children, which we’ve never had before, in — in serious condition and many on ventilators.
So saying it’s a different variant just underscores the fact that without the — without some workplace rules with respect to vaccines and encouraging vaccines, because this is not a vaccine mandate, and — and requiring masking and requiring isolation of people who have tested for COVID, because none of you have addressed that part of the ETS is to say something that should be self-evident to the world but is not, which is, if you’re sick, you can’t come into work. The workplace can’t let you into the workplace and you shouldn’t go on unmasked.
Sotomayor didn’t say where she found that statistic, but the number was clearly wrong and by a very large margin. When Walensky, the CDC director, was asked about it on “Fox News Sunday” on Dec. 9, she didn’t object to host Brett Baier’s assertion that the actual number of U.S. children then hospitalized with COVID-19 was closer to 3,500. When Baier asked Walensky for the number of children on ventilators, she said she didn’t know off the top of her head.
If we’ve interpreted the HealthData.gov spreadsheet showing patient impact and hospital capacity correctly, there were roughly 4,600 U.S. children hospitalized with confirmed cases of COVID-19 — nowhere near 100,000, obviously — as of Jan. 10. Sotomayor’s statement was therefore wildly inaccurate. We were unable to find data concerning the number of children on ventilators.
Still, as Walensky attempted to make clear during her “Fox News Sunday” appearance, the real numbers are of grave concern. According to the CDC, an average of 672 children a day were being hospitalized with COVID-19 across the U.S. as of the week ending Jan. 2 — an increase of 114% over the previous week and the highest number of pediatric hospitalizations of the pandemic thus far, Forbes reported on Jan. 5. The vast majority of these children are unvaccinated, and those under 5 years of age are not yet eligible to receive COVID-19 vaccinations.
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“COVID-19 Reported Patient Impact and Hospital Capacity by State | HealthData.Gov.” Socrata, https://healthdata.gov/dataset/COVID-19-Reported-Patient-Impact-and-Hospital-Capa/6xf2-c3ie. Accessed 11 Jan. 2022.
Kaplan, Anna. “Record Number Of Children Hospitalized With Covid-19 In U.S.” Forbes, https://www.forbes.com/sites/annakaplan/2022/01/05/record-number-of-children-hospitalized-with-covid-19-in-us/. Accessed 11 Jan. 2022.
U.S. Supreme Court. National Federation of Independent Business, et. al., v. Department of Labor, Occupational Safety and Health Administration, et. al. Accessed 10 Dec. 2022.