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States Urge Justices to Uphold Block on Health-Care Jab Mandate (2)

Dec. 30, 2021, 5:44 PMUpdated: Dec. 30, 2021, 8:01 PM

The Biden administration’s vaccine mandate for health-care workers shouldn’t resume across the nation while litigation unfolds, a group of Republican-led states told the U.S. Supreme Court Thursday.

The states are asking the high court to reject the administration’s request to put a hold on two lower court decisions that are blocking the rule in about half the country.

“The Secretary seeks an extraordinary stay to undo that necessary remedy and immediately reimpose the mandate, creating confusion, causing a logistical nightmare, and unleashing the ‘prevalent, tangible, and irremediable’ harm that the injunction forestalls,” state attorneys general said in a brief. “The lower courts got it right.”

The justices’ decision will be a strong signal of the fate of the rule. If the justices side with the Centers for Medicare & Medicaid Services, they are likely to believe that the agency was acting within its authority to issue a vaccine mandate. If they side with the states, the CMS’ future power to make critical decisions could be in jeopardy.

If the rule remains blocked this winter, “hundreds and potentially thousands of patients may die at hospitals, nursing homes, and other facilities participating in Medicare and Medicaid as the result of Covid-19 infections transmitted to them by staff,” U.S. Solicitor General Elizabeth Prelogar said in the Biden administration’s request.

The mandate is currently blocked in 25 states after the Fifth Circuit ordered the partial reversal of a nearly nationwide injunction issued by a federal court in Louisiana.

The high court will hear arguments Jan. 7 over whether to lift the block on enforcement, halt enforcement across the U.S., or leave the current 50-50 patchwork of enforcement as is.

The court on Thursday granted requests for a divided argument, allowing attorneys for the Louisiana-led and Missouri-led alliances of states to make their own arguments against letting the health-care vaccine mandate take effect nationwide.

Authority, Staffing

Four different lawsuits backed by 26 states said the mandate exceeds the CMS’ statutory authority. “None of the explicit statutory conditions remotely implies the authority to force healthcare workers to submit to a permanent medical procedure,” the Missouri-led states said in their brief.

The requirement will worsen staffing shortages at a time when health facilities can’t afford to lose just one worker, the states also said. “But for the district court’s preliminary injunction, last year’s healthcare heroes would have become this year’s unemployed,” they said.

The CMS said in the rule that the mandate will help the staffing situation by reducing the amount of sick leave workers use, and attracting newcomers to open positions.

The Louisiana-led states said in a separate brief on Thursday that “lifting the injunctions puts patients across the country at risk of losing access to the healthcare they need now.”

The case is Biden v. Missouri, U.S., No. 21A240, response briefs filed 12/30/21.

(Updated with additional reporting and the second response brief.)

To contact the reporter on this story: Allie Reed in Washington at areed@bloombergindustry.com

To contact the editors responsible for this story: Brent Bierman at bbierman@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com