NEW ORLEANS — A federal appeals court panel on Wednesday lifted a nationwide ban against President Joe Biden’s vaccine mandate for health care workers, instead blocking the requirement in only certain states and creating the potential for patchwork enforcement across the country.
The decision by the New Orleans-based 5th U.S. Circuit Court of Appeals kept a preliminary injunction in place for 14 states that had collectively sued in federal court in Louisiana. It altered a Nov. 30 ruling by U.S. District Judge Terry Doughty, who originally applied his order nationwide.
A separate preliminary injunction on appeal before the St. Louis-based 8th U.S. Circuit Court of Appeals applies to 10 additional states. That means the vaccine requirement for Medicare and Medicaid providers is blocked by courts in about half of states but not in the other half.
“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,” the ruling from three 5th Circuit judges said.
At issue is a rule published Nov. 5 by the Centers for Medicare & Medicaid that applied to a wide range of health care providers that receive federal Medicare or Medicaid funding. It required their workers to receive the first dose of a COVID-19 vaccine by Dec. 6 and be fully vaccinated by Jan. 4. It was projected to affect more than 17 million workers in about 76,000 health care facilities as well as home health care providers.
The agency said on Dec. 2 that it would not enforce the vaccine rule while court injunctions were in place. It was not immediately clear Wednesday whether the agency would continue to suspend the rule for all states or seek to go ahead with it in states no longer subject to the injunctions.
About 85% of adults nationwide already have received at least one dose of a COVID-19 vaccine. But Biden contends his various workforce vaccine mandates are an important step to drive up vaccination rates and contain the virus outbreak, which has killed about 800,000 people in the U.S.
Courts that have blocked the mandates for health workers, federal contractors and medium- to-large-sized businesses all have said the Biden administration likely exceeded the executive powers spelled out in law. The administration has continued to say it is on firm legal ground.
In upholding Doughty’s injunction for the states that sued, the 5th Circuit panel said it appears likely that opponents of the health worker vaccine mandate will prevail as the case moves through the courts. However, the panel also said there are significant differences between the health care vaccine mandate and another vaccine mandate - blocked previously in a separate ruling upheld by the 5th Circuit - that applied to all businesses employing more than 100 people.
Among the key differences, the court said, is that “the targeted health care facilities, especially nursing homes, are where COVID-19 has posed the greatest risk.”
Wednesday’s 5th Circuit ruling was issued by judges Leslie Southwick, nominated to the court by President George W. Bush; and James Graves and Gregg Costa, both nominated by President Barack Obama.
The 5th Circuit decision blocks the health worker vaccine mandate in Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah and West Virginia. The separate case pending before the 8th Circuit blocks the mandate in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.
Also Wednesday, the Cincinnati-based U.S. 6th Circuit Court of Appeals said a three-judge panel - rather than the entire court - would rule on a challenge to the Biden administration’s mandate that all private employers with at least 100 workers require them to be vaccinated or wear masks and face weekly tests.
That decision is a victory for the Biden administration, which had pushed back against efforts to have all the judges in the panel initially involved. Eleven of the 16 full-time judges in the 6th Circuit were appointed by Republicans.
The vote in the 6th Circuit was split, with eight judges wanting the entire panel to hear the case and eight wanting it to stay with three judges. Judge Karen Nelson Moore wrote that the three-judge panel already has devoted time to the case and switching now would “subvert our normal process.”
Chief Judge Jeffrey Sutton disagreed, arguing in a dissent, “there is something to be said for putting all hands on deck, particularly when it comes to handling the stay motion.” In his dissent, he laid out a case against the administration’s authority to issue the mandate.
At least for now, the earlier ruling from the 5th Circuit remains in place and the broader business vaccine mandate is on hold nationwide. The federal government has asked for that order to be dissolved. Determining which judges will decide that issue could set the stage for a ruling in the matter.
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