Administration Urges Supreme Court to Restore Vaccine Mandate for Health Care Workers
- December 17, 2021
The Department of Justice is asking the Supreme Court to allow the vaccination requirement for health care workers to go into effect in the 24 states where lower courts have blocked implementation of Centers for Medicare & Medicaid Services (CMS) emergency regulations issued in November.
At the end of last month, the U.S. District Court for the Eastern District of Missouri granted a preliminary injunction to ten states after finding CMS likely exceeded its statutory authority in issuing the interim final rule (IFR) (86 Fed. Reg. 61555), which requires health care workers to receive two doses of the mRNA vaccines or one dose of the Johnson & Johnson shot by January 4, 2022. The Eighth Circuit denied December 13 the administration’s request for a stay of the injunction in the ten states pending appeal.
On November 30, the U.S. District Court for the Western District of Louisiana enjoined the vaccine mandate in the remaining states not covered under the injunction granted by the Missouri federal district court. The Fifth Circuit, on December 15, also declined to stay that injunction, but narrowed its scope to the 14 states that brought the challenge.
As a result, the vaccine mandate remains blocked in 24 states. On December 5, the Eleventh Circuit refused to grant an injunction to Florida in its challenge to the IFR. The Eleventh Circuit held that the state failed to establish a substantial likelihood it would succeed on the merits of its claim that CMS lacked statutory authority to issue the vaccination requirement, that the agency should not have bypassed notice-and comment-rulemaking, and that the rule was arbitrary and capricious.
The IFR is part of the administration’s broad-based efforts to counter the spread of COVID-19 in the face of the highly transmissible Delta, and now Omicron, variants. The IFR requires health care providers to establish a process for providing exemptions from the vaccination requirement for recognized medical conditions or religious beliefs.
The states have argued that the vaccination requirement will exacerbate health care workforce shortages, particularly in rural areas; that CMS violated the Administrative Procedure Act in promulgating the rule; and that the mandate is unconstitutional.
According to published reports, U.S. Solicitor General Elizabeth Prelogar filed December 16 two emergency applications asking the Court to allow the vaccine mandate for health care workers to go into effect while appeals proceed in the two challenges, warning of potential dire consequences if the injunctions remain in place during the expected winter surge of the virus.
On December 13, the Supreme Court refused, without explanation, to grant injunctive relief to 20 health care workers in New York challenging a statewide vaccination mandate for health care workers. The New York regulation does not include an exemption for religious beliefs, and the 20 individuals brought the challenge arguing the vaccine mandate violates the First Amendment. Justices Thomas, Gorsuch, and Alito dissented.