Twenty-five out of 50 states must once again abide by President Joe Biden’s coronavirus vaccine mandate for healthcare workers following a decision by the U.S. Court of Appeals for the Fifth Circuit on Wednesday.
The federal appeals court partially reversed a nationwide preliminary injunction granted by Judge Terry A. Doughty in the U.S. District Court for the Western District of Louisiana in late November, which barred the Biden administration from enforcing the Centers for Medicare & Medicaid Services (CMS) mandate during litigation.
Following Doughty’s decision, the U.S. government asked the Fifth Circuit — which is widely known as the most conservative-leaning appellate court — to stop or “stay” the nationwide preliminary injunction. A three-judge panel that was uncharacteristically liberal for that court, comprised of Bush 43 appointee Judge Leslie Southwick and Obama appointees Judges James Graves Jr. and Gregg Costa, partially granted the stay, removing the nationwide injunction but allowing Doughty’s preliminary injunction for the 14 states suing the Biden administration to remain.
“The district court here gave little justification for issuing an injunction outside the 14 States that brought this suit,” the judges wrote. “…This vaccine rule is an issue of great significance currently being litigated throughout the country. Its ultimate resolution will benefit from “the airing of competing views” in our sister circuits.”
A separate court in Missouri also halted Biden’s CMS vaccine mandate in 10 other states — bringing the initial total of states who do not have to comply with the mandate to 24.
Texas joined those states on Wednesday, rounding the number of states bucking Biden’s mandate to 25 (half the country) after a district judge granted Texas a preliminary injunction in its own separate lawsuit against the Biden administration.
“The CMS Mandate poses a threat of irreparable harm to Plaintiffs’ proprietary interests by increasing the likelihood of staffing shortages, thereby creating business and financial effects that can drain state resources and disrupt the state’s ability to efficiently operate its various healthcare programs,” Judge Matthew Kacsmaryk wrote in his opinion.
The court held an emergency telephonic hearing on December 15 following the Fifth Circuit’s decision, court documents detail. The decision had left Texas without protection against the mandate because Texas did not join the Louisiana or Missouri lawsuits. Florida, whose governor has never shied away from taking Biden to task, was also left in the lurch following the Fifth Circuit’s decision.
Florida Attorney General Ashley Moody on Wednesday announced she had filed a petition for initial hearing en banc in the U.S. Court of Appeals for the Eleventh Circuit regarding the state’s own lawsuit against the Biden administration. An “en banc” session is when a case is heard by all the judges on the court, rather than a standard three-judge panel. A district judge originally denied Florida’s request for a preliminary injunction, before a smaller panel denied the request in the Eleventh Circuit on December 5 on appeal.
In a statement to Breitbart News, Florida Gov. Ron DeSantis’s Office said he “supports the challenge to the CMS mandate.”
The statement continued:
The governor has always said that nobody should lose their jobs over COVID-19 vaccine mandates, which are unconstitutional and lack a public health justification. Moreover, many healthcare workers have had COVID-19 and recovered from it already, meaning they have robust natural immunity and are at least as protected as a vaccinated individual. During a pandemic, when many areas of the country are already facing shortages of healthcare workers, it is especially absurd and dangerous to enact such unjust policies that will exacerbate staffing shortages and put our communities at unnecessary risk.
States Where the CMS Mandate is Still Blocked:
Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, Wyoming, Texas
State Where the CMS Mandate is in Effect:
California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, Wisconsin
About the Mandate
CMS published the rule on November 15, mandating virtually every employee, contractor, trainee, student, and volunteer working for one of the covered suppliers or providers be vaccinated against coronavirus. Healthcare workers are supposed to receive their first dose prior to December 6, 2021 and be fully vaccinated by January 4, receive a medical or religious exemption, or face firing.
Most states suing the Biden administration say the mandate will cripple already struggling healthcare systems and increase existing staffing shortages. For example, Florida in its petition cited data showing that 92 percent of longterm-care facilities “face a staffing crunch,” saying “for 75 percent of them its is ‘the number one concern.”‘ The Sunshine State also reported an 11 percent vacancy rate for nurses.
Texas in its lawsuit, presented affidavits from healthcare workers who resigned from their jobs when hospital-specific vaccine requirements were enforced, from public health executives and officials who anticipate a reduction in staff if the CMS mandate is enforced, and from healthcare workers who say they will resign if they are forced to get the jab. Likewise, Florida cited a report which found that more than a third of workers would quit if employers mandated vaccination or weekly testing.
“A vaccine mandate threatens to exacerbate these grim circumstances. Officials at state-run healthcare facilities expect that many healthcare workers would resign rather than vaccinate,” the petition reads. “And indeed, a recent study confirms these fears, reporting that 37 percent of unvaccinated workers would quit if their employers mandated vaccination or weekly testing, and 72 percent would quit were vaccination the only option.”
Kacsmaryk in his decision, criticizes the CMS for basing its mandate on a “fallacy.” The CMS reportedly only relied on data from long-term-care facilities (LTC) to defend its mandate, despite the fact that it oversees fourteen other types of facilities.
“CMS assumes that the LTC data “may generally be extrapolated to other settings,” but this is a fallacy of composition. Data reflecting COVID-19 vulnerabilities at LTC facilities is not necessarily extrapolative to the remaining fourteen categories of Medicare- and Medicaid-certified facilities. The Court finds Defendants’ failure to consider any other data is unreasonable,” Kacsmaryk wrote.
Florida also brought up the point, noting that LTC facilities are “uniquely susceptible to COVID-19.”
“They “make up less than 1 percent of the U.S. population” yet “accounted for 35 percent of all COVID-19 deaths during the first year of the pandemic,” the state noted.
The Biden administration continues to assert that the CMS has authority to make broad rules in the interest of public health. The CMS mandate covers approximately 10.4 million people with an additional 2.7 million individuals who will be covered once hired.
Next Steps
On Thursday, Biden’s Department of Justice [DOJ] asked the Supreme Court to stay the Missouri and Louisiana district court preliminary injunctions. The Supreme Court ordered the challengers from both states to respond to the DOJ’s application to stay the lower court decisions by Dec. 30 at 4:00 p.m.
The case is Louisiana v. Becerra, No. 21-30734 in the U.S. Court of Appeals for the Fifth Circuit.
Katherine Hamilton is a political reporter for Breitbart News. You can follow her on Twitter.
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