On Tuesday, a federal court issued a preliminary injunction against President Joe Biden’s COVID-19 Centers for Medicare and Medicaid Services (CMS) vaccine mandate for health care workers. Arizona health care workers under CMS jurisdiction via Medicare and Medicaid programs don’t have to adhere to the vaccine mandate. Louisiana Western District Judge Terry Doughty, an appointee of previous President Donald Trump, issued the order.
Arizona Attorney General Mark Brnovich announced the injunction Tuesday afternoon.
“NATIONWIDE INJUNCTION Great news – a federal judge just granted our coalition’s request to STOP the Biden Administration’s overreaching ‘job or jab’ COVID-19 vaccine mandate for health care workers. We will continue to take action to protect Arizona’s health care heroes,” wrote Brnovich.
Brnovich joined a coalition of 13 other states led by Louisiana Attorney General Jeff Landry, a Republican, in response to an emergency order issued by CMS on November 4. Under the CMS mandate, health care workers would’ve had to be fully vaccinated by January 4. That would’ve required individuals receiving vaccines requiring two doses to receive their first injection by December 6 to be fully compliant.
In a memorandum, Doughty wrote that Biden’s attempt to bypass Congress posed a grave threat to our Constitutional order. He emphasized the importance of safeguarding American liberties more so during the pandemic than at any other time.
“If the separation of powers meant anything to the Constitutional framers, it meant that the three necessary ingredients to deprive a person of liberty or property – the power to make rules, to enforce them, and to judge their violations – could never fall into the same hands,” wrote Doughty. “The executive branch is allowed to usurp the power of the legislative branch to make laws, two of the three powers conferred by our Constitution would be in the same hands. If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.”
Although Press Secretary Jen Psaki issued a statement on Tuesday emphasizing the importance of vaccinations to combating COVID-19 and the latest variant, Omicron, she didn’t address the ruling as of press time.
Neither did President Joe Biden. Instead, Biden’s remarks for most of Tuesday concerned bills his administration worked to pass such as the infrastructure law, with the school shooting in Oxford, Michigan occupying the remainder of that day.
Reuters noted in their coverage that the White House declined to comment on these legal losses.
This is the latest in a series of legal battles over COVID-19 vaccine mandates that the president has lost. Courts also temporarily halted the federal contractor vaccine mandate, as well as a rule through the Occupational Health and Safety Administration (OSHA) requiring businesses with 100 or more employees to either be vaccinated or tested weekly.
Kentucky Eastern District Judge Gregory Van Tatenhove, a Bush appointee, also issued his order halting the Biden Administration’s requirement that new government contracts require contractor employees to be vaccinated for COVID-19 on Tuesday. Tatenhove’s rationale for imposing the injunction was similar to Doughty’s, citing “serious Constitutional concerns.” Tatenhove didn’t dispute that the COVID-19 vaccine worked, or that the federal government could mandate vaccinations within certain circumstances. Rather, Tatenhove said that the legal question at hand concerned what authorities the president and federal government had.
“Can the president use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors? In all likelihood, the answer to that question is no,” wrote Tatenhove. “[T]here is a serious concern that Defendants have stepped into an area traditionally reserved to the States, and this provides an additional reason to temporarily enjoin the vaccine mandate.”
Read Doughty’s full opinion ordering an injunction against the CMS mandate here.
The former director of the Arizona Department of Health (ADHS), Will Humble, issued a statement on Sunday noting that Arizona’s number of COVID-19 deaths in children was 250 percent above the national average. Humble pulled the statistic from the ADHS Child Fatality Review Program (CFRP) annual report on child fatalities in 2020, released earlier this month. The exact number of children who reportedly died from a COVID-19 infection amounted to twelve. There were 29 indirect COVID-19 deaths, accounting for the majority of listed child COVID-19 deaths.
Those 29 deaths weren’t caused by a COVID-19 infection. Rather, they were caused by circumstances CFRP insisted were set up by the COVID-19 pandemic at large; in other words, the pandemic resulted in a butterfly effect that led to a majority of these children’s deaths. ADHS noted that they were “among the first in the nation” to adopt this rationale for cataloguing COVID-19 deaths. That may explain the disparity between Arizona’s purported number of child COVID-19 deaths versus the national number.
The CFRP report classified those butterfly effect majority deaths, “indirect COVID-19 deaths.” They claimed that children didn’t have to be infected with COVID-19 to have died from it.
“An indirect COVID-19 death is a death where the child or caregiver experienced changes or disruptions in how they lived, worked, or accessed services due to COVID-19,” stated the report. “The CFRP recognizes that COVID-19 likely is indirectly related to other increases of child deaths in particular suicide, firearm injuries and motor vehicle crashes included in this report.”
The ADHS report further admitted that researchers reviewed case files of other child deaths that occurred prior to public knowledge of the pandemic to discern whether those deaths were directly or indirectly related to COVID-19. For suspected direct deaths, researchers relied on medical record classifications such as influenza and pneumonia to determine whether the child died from COVID-19 and not the cause of death assigned originally. For suspected indirect deaths, researchers admitted that they considered the following:
“Indirect COVID-19 deaths may include (but is not limited to): looking at deaths that occurred during school closures when the child may not have died if they were physically in school, deaths where the fear of contracting COVID-19 impacted seeking medical care, and social (isolation, lack of supervision, etc.), emotional (mental health, fear of contracting COVID-19, etc.), or economic changes (finance disruptions, lack of childcare, etc.) induced by COVID-19 which may have impacted the child’s or parent’s decision-making and overall wellbeing leading to the child’s death,” asserted the report.
Even with the inclusion of deaths unrelated to COVID-19 infection, ADHS noted that the total child COVID-19 deaths totaled less than 1 per 100,000 last year.
Of the twelve who died from COVID-19 directly: seven were due to poverty and six lived in a rural region. Exact numbers couldn’t be provided for the number of children who had a chronic medical condition, no insurance, and/or an inflammatory syndrome because they numbered less than six.
According to ADHS, there have been a total of 50 individuals under the age of 20 whose cause of death could be attributed to COVID-19. ADHS catalogued deaths by age group; the deaths for those under 20 years old were so low in comparison to the other deaths that the ADHS tracker quantified it as less than one percent of all COVID-19 deaths.
Just under 1,200 total deaths for those aged 20-44, just over 1,700 deaths for those aged 45-54, well over 3,400 deaths for those aged 55-64, and over 15,800 for those over 65.
Currently, Humble serves as the director of the Arizona Public Health Association (AZPHA), a health lobbying organization affiliated with the national lobbying organization, American Public Health Association (APHA).
Two nursing students, Emily Thoms and Kamaleilani Moreno, are fighting for their religious freedom in the face of Maricopa County Community College District’s (MCCCD) vaccine mandate. The district is mandating vaccines to accommodate the requirements of those health care providers per their partnership agreements. Both Thoms and Moreno were denied religious exemptions – an objection to the use of fetal cell lines to either test or produce the COVID-19 vaccines in the market currently – because doing so would place “an undue hardship” on MCCCD. Thoms and Moreno must either get vaccinated and violate their religious beliefs, or effectively never complete their nursing program with MCCCD.
“The pressure the District has placed on [the plaintiffs] to forfeit their religious convictions or their academic programs is unreal and unprecedented and more than some of them could withstand, as the District fully expected. They have figuratively walked through fire and wait just beyond the flames to see if everything they have worked for will go up in smoke because they refuse to sacrifice their sincerely held religious beliefs to mollify an uncompromising District,” asserted the complaint. “[The plaintiffs] oppose abortion and believe it is the sinful killing of innocents and strictly prohibited by their Christian faith, as is the use of abortion-derived fetal cell lines for medical or research purposes. It would be an unthinkable and complicit act in abortion and a violation of their deeply held religious beliefs and moral consciences to take any of the COVID-19 vaccines, given their use of testing.”
In a separate explanation of their vaccine mandate, MCCCD said their decision was supported previously by an executive order issued by Governor Doug Ducey last year. The district did promise that it would review all religious and disability accommodations, noting that each partnered health care provider had their own procedures for religious and disability accommodations. However, even with an approved exemption, MCCCD disclosed that it couldn’t guarantee clinical placement that may result in removal from the course.
MCCCD’s characterization of having its hands tied when it comes to vaccine requirements for clinical placements may not be entirely accurate. According to the complaint, MCCCD did confirm with Thoms and Moreno that at least three health care centers do allow for unvaccinated students without exemptions to participate in clinical rotations, at least two health care centers allow unvaccinated students based on religious or other exemptions to participate in clinical rotations, at least one health care center allows MCCCD to determine whether or not students must be vaccinated, and at least one health care center hasn’t issued an official vaccination requirement for clinical rotations. In total, the complaint alleged that MCCCD didn’t know the vaccination requirements for 28 of its 36 major clinical partners – not including their affiliates.
According to the complaint, MCCCD alleged that their sweeping vaccine mandate was necessary because they randomly assign clinical placements and a student might end up at a partnering health care center that requires universal COVID-19 vaccination. Thoms and Moreno’s attorney, Colleen Auer, asserted in the complaint that this was false. She noted that students may pick their top three clinical site preferences and MCCCD assigns based on those selections.
Noncompliance with the mandate will cost Thoms and Moreno several years of time, money, and sacrifices they’ve invested into the program. In several weeks, they will be dropped from their clinical rotations and prevented from receiving their associate’s degree in nursing in December.
U.S. District Judge Steven Paul Logan is scheduled to hear the case on Monday: a week before MCCCD’s fall clinical rotations begin and the deadline for showing proof of vaccination, November 8. That’s also the date that the Biden Administration suggested for compliance with their vaccine mandate.
The Office of Personnel Management informed federal employees and companies with over 100 workers that the second dosage of either the Pfizer or Moderna vaccines, or the first dosage of the Johnson & Johnson/Janssen vaccine, must occur on or before November 8 for full compliance.