Biden

President-elect Joe Biden receives his second dose of the coronavirus vaccine at ChristianaCare Christiana Hospital in Newark, Del., Monday, Jan. 11, 2021. 

(The Center Square) – Indiana Attorney General Todd Rokita filed a third lawsuit challenging the Biden administration’s vaccine mandates this week – this time challenging requirements for nurses, doctors and other healthcare workers.

“No pandemic gives President Biden the authority to ignore the Constitution and the rule of law,” Rokita said in a statement. “And my office will use every means at our disposal to protect Hoosiers’ liberties from this president’s gross executive overreach.”

The suit was filed jointly with the attorneys general of Alabama, Arizona, Georgia, Idaho, Louisiana, Mississippi, Montana, Oklahoma, South Carolina, Utah and West Virginia.

It challenges the Biden Administration’s Centers for Medicare and Medicaid Services (CMS) rule that requires vaccination of all healthcare workers in facilities that accept Medicare and Medicaid.

“On a practical level,” Rokita said in a statement Tuesday, “this particular vaccine mandate causes grave danger to the vulnerable persons whom Medicare and Medicaid were designed to protect – the poor, sick and elderly – by forcing the termination of heroic caregivers who are essential to providing health care services.”

The suit was filed in the U.S. District Court for the Western District of Louisiana.

It accuses the Biden administration of trying to “federalize” public health policy and diminish the powers of the states under the U.S. Constitution, and also challenges the administration’s use of the Social Security Act to force the vaccination of health care workers.

“By forcing a significant number of healthcare workers to take the shot or exit the Medicare and Medicaid workforce, CMS’s Vaccine Mandate harms access to (and thus quality of) patient care,” it reads. “This ‘one size-fits-all sledgehammer’ expressly undermines the Social Security Act’s singular focus on providing access to care.”

The Medicare and Medicaid programs were created in 1965 when Congress passed amendments to the Social Security Act. Medicare provides health insurance to Americans 65 and older, while Medicaid is government-funded health insurance for low-income Americans and is funded jointly by states and the federal government.

The Biden administration’s CMS mandate applies to almost all health care workers in facilities that accept Medicare and Medicaid, which includes all or most Indiana hospitals, and also ambulatory surgical centers, hospice facilities, psychiatric treatment facilities, long-term care facilities, home health agencies, community mental health centers, rural health clinics, clinics that provide speech-language pathology services and those that provide intermediate care facilities for people with intellectual disabilities.

 It requires these workers get a first dose of the COVID-19 vaccine by Dec. 6, and the second dose by Jan. 4.

The rule requires employers to grant medical and religious exemptions, with the medical exemption limited to a specific contraindication. A religious exemption is to be granted to those employees with a “sincerely held religious belief” related to the COVID-19 vaccine but can be denied if it would impose an “undue hardship" on the employer.

The suit filed Monday says that in addition to being at odds with the Social Security Act, the CMS mandate has other "fatal flaws."

"It exceeds CMS’s statutory authority; violates the Social Security Act’s prohibition on regulations that control the selection and tenure of healthcare workers; is arbitrary and capricious; and violates the Spending Clause, the Anti-Commandeering doctrine, and the Tenth Amendment," the complaint reads.

It also says in issuing the rule, the agency didn't follow the procedures Congress requires, which includes issuing an initial notice and draft rule and allowing public comment and also doing a regulatory-impact analysis.

It says that no law cited by CMS gives the agency any authority to issue a vaccine mandate.

Ten million healthcare workers in the United States would be subject to the CMS vaccine mandate, according to the agency. Of these, CMS estimates that 2.4 million have not yet gotten the COVID-19 vaccine.

"CMS’s objective is to coerce the unvaccinated workforce into submission or cause them to lose their livelihoods," the suit says.

In addition to the suit that Indiana has joined, another suit has been filed in U.S. District Court for the Eastern District of Missouri, on behalf of Missouri, Nebraska, Alaska, Arkansas, Iowa, Kansas, New Hampshire, North Dakota, South Dakota and Wyoming.

The interim final rule requiring Covid-19 vaccination of health care workers was issued Nov. 5 by the Centers for Medicare and Medicaid Services.

Many Indiana hospitals had already issued their own vaccine mandates before the CMS rule was issued.

Rokita’s office has filed two other lawsuits involving the Biden vaccine mandates – one Nov. 4  challenging the mandate on companies that have contracts with the federal government, and the second one Nov. 5, which challenged the emergency OSHA rule mandating that all businesses with 100 or more employees require their employees to get the COVID-19 vaccine.

On Nov. 12, the U.S. Court of Appeals for the Fifth Circuit stopped the OSHA mandate, calling it “staggeringly overbroad” and saying it “raises serious constitutional concerns.” But other circuit courts could lift the stay. Multiple lawsuits against the OSHA mandate are to be consolidated into a single circuit this week via a lottery.