The Centers for Medicare & Medicaid Services rule, published November 5, would have required health care providers receiving funding from the programs to get their first dose of a COVID-19 vaccine by December 6 and their second by January 4. The original November 30 decision by U.S. District Judge Terry Doughty banned the mandate across the country.
The 5th U.S. Circuit Court of Appeals made the decision to change Doughty’s ruling by only applying it to 14 states that sued in the Louisiana federal court.
“This vaccine rule is an issue of great significance currently being litigated throughout the country,” the ruling said. “Its ultimate resolution will benefit from ’the airing of competing views’ in our sister circuits.”
Another preliminary injunction appeal with the 8th U.S. Circuit Court of Appeals is currently blocking the mandate in another 10 states. The Centers for Medicare & Medicaid Services said earlier this month it would not enforce its rule in states with injunctions against it.
This leaves the mandate, which was supposed to apply to 17 million health care workers, potentially in effect in only about half of the country.
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 have said the Biden administration likely exceeded its 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, who were 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 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 shall require employees to be vaccinated or to 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.
The Associated Press contributed to this report.