When news broke this week regarding the first injunction against the federal vaccine requirement for healthcare workers, I’ll admit I was surprised that a court found enough merit in the challenging states’ arguments that it was willing to press pause.
What I wasn’t surprised to see, however, was the governors of the 10 affected states immediately celebrating all over the Twitterverse by mid-day Monday.
There was New Hampshire Gov. Chris Sununu (R), calling the temporary measure “a big win for New Hampshire’s healthcare system.”
“Nursing homes were at risk of closure if the Biden mandate remained in place,” he said in a statement. “This helps maintain the staff New Hampshire needs to care for our loved ones.”
Maybe Sununu blocked out the fact that 80% of that state’s nurses are already vaccinated, and that some providers in the state have reported 99% compliance with their private vaccination mandates. As we’ve reported time and time again this fall, most facilities that adopt mandates are not experiencing massive staff losses, regardless of the party line.
Maybe Sununu also has forgotten what it was like for nursing homes to close their doors in the midst of nearly unstoppable outbreaks, when patients were dying and dozens of potentially exposed nurses were sometimes quarantined.
Maybe he is ignoring the fact that many nursing homes still haven’t recovered from the census hits they took early in the pandemic because would-be residents are still concerned about what happened there pre-vaccine. Those nursing homes’ futures are uncertain, meaning if COVID is allowed to maintain a foothold, there may not be anywhere to send loved ones for long-term care.
Let’s turn to Wyoming Gov. Mark Gordon (R), who said “healthcare employees should not be forced to choose between vaccination and termination,” but seemed to think little of the agony families must face as they decide whether to seek treatment for their loved ones in places without vaccine rules.
His words were echoed by Iowa Gov. Kim Reynolds (R), who reminded us that she believes “the vaccine is the best defense against COVID-19, but I also firmly believe in Iowans’ right to make healthcare decisions based on what’s best for themselves and their families.”
I guess they’ve both forgotten the elderly and vulnerable patients who don’t really get a choice when they need to seek care. If this rule is ultimately rejected, those patients may end up putting their lives in the hands of unvaccinated workers.
Then there was Missouri Attorney Gen. Eric Schmitt (R), who led the challenge in the U.S. District Court for the Eastern District of Missouri, and will likely soon find himself arguing his case’s merits in the Eighth Circuit Court of Appeals or even at the Supreme Court.
“The belief in individual rights is one of America’s great legacies,” Schmitt wrote on Twitter, adding to the chorus of self-proclaimed winners.
Schmitt no doubt believes he’s playing a critical role in protecting that legacy, as do all the attorneys general in his case and those from 14 other states in a Louisiana case in which a second injunction was granted late Tuesday evening.
But as the world has watched the U.S. grapple with COVID-19, few have seen us as leaders. Instead, they’ve seen a house divided, with half the nation latched onto the immutable idea of individual rights even at the expense of the greater community and the lives of the people they profess to protect from government “overreach.”
What none of the jubilant winners conceded Monday is that they still have a long and likely uphill climb before any court gives them a permanent victory on this particular mandate.
A federal judge in Florida denied an injunction on similar arguments, and another in Texas has yet to have an initial ruling. Should the Supreme Court get involved, the conservative majority can’t be viewed as a sure thing for Republican states fighting the Biden administration’s mandate efforts. The Court has already declined to intervene in several mandate-related cases, doing so again Tuesday in a case involving Massachusetts healthcare workers.
In Monday’s ruling, the judge took issue with whether the Centers for Medicare & Medicaid Services overstepped its authority. The 10 states have argued the agency doesn’t have the right to mandate vaccines for healthcare workers in their states because of state sovereignty. A second judge, also a Trump appointee, keyed in on similar themes in effectively expanding the enforcement stoppage nationwide just days before the first CMS vaccination deadline.
But the rule was carefully crafted to apply only to facilities participating in healthcare programs receiving specific federal funding that opens them up to federal regulation. It doesn’t dictate what nursing homes, hospitals or a range of other facilities that don’t accept Medicare or Medicaid have to do about vaccines.
For that reason, many legal experts expect the CMS rule will ultimately stand.
So go ahead, governors, dance your victory dance and parade around Twitter for the time-being. But in case you’re giving false hope to an industry that should be focused on protecting its residents and staff, let’s hope you’re saving your best moves for later.
Kimberly Marselas is senior editor of McKnight’s Long-Term Care News.
Opinions expressed in McKnight’s Long-Term Care News are not necessarily those of McKnight’s.