Miss a day, miss a lot. Subscribe to The Defender's Top News of the Day. It's free.
Minutes after oral arguments began today in a New York State appeals court hearing on a lawsuit challenging the state’s COVID-19 vaccine mandate for healthcare workers, an attorney representing New York announced the state’s intention to repeal the mandate.
The state also requested the court overturn a previous ruling striking down the mandate — a move attorneys for the plaintiffs opposed because it “leaves open the very real possibility that this constitutional violation could happen again and ruin many more lives.”
Children’s Health Defense (CHD) sponsored the original lawsuit, filed Oct. 20, 2022, by Medical Professionals for Informed Consent — a group of medical practitioners affected by the mandate — along with several additional plaintiffs, including two doctors, a nurse, a radiologic technologist and a medical laboratory specialist.
Defendants include the New York State Department of Health (NYSDOH), New York Gov. Kathleen C. Hochul and Mary T. Bassett, the state’s health commissioner.
New York’s Supreme Court Appellate Division in Rochester was set to hear arguments today — but the plaintiffs’ attorneys were cut short by the state’s announcement.
BREAKING NEWS!!! State showed up at Court today and announced they are repealing the vax mandate for healthcare workers. More info coming soon.
— Sujata Gibson (@sujatagibson) May 24, 2023
Jonathan Hitsous, an attorney for the state, today told the court that New York no longer intends to enforce the mandate:
“I would like to advise the court that the State Health Department has just informed me that they intend to repeal the regulation that is being challenged here.
“The repeal is going to be done through the notice and comment process but what I can confirm is that the department no longer intends to enforce this rule and will be sending and will be sending out guidance to hospitals and other health care facility administrators within the upcoming week.”
The New York State Supreme Court on Jan. 13 struck down the mandate for healthcare workers, declaring it “null, void, and of no effect” and holding that the NYSDOH lacked the authority to impose the mandate.
Hitsous said that as a result of the pending repeal of the mandate, the original lawsuit is now moot. However, he requested that the lower court’s Jan. 13 decision striking down the mandate be vacated.
Sujata Gibson, the attorney representing the plaintiffs, opposed the request.
According to a joint statement released today by CHD and Gibson:
“In what can only be described as pure gamesmanship, New York State asked the court to withdraw their appeal but overturn the lower court’s decision without looking at the merits on the grounds that it was now moot.
“What that means is New York State wants the victory Sujata Gibson and Children’s Health Defense already obtained in the lower court to be thrown out because today they announced a plan to withdraw the vaccine mandate for healthcare workers.”
Gibson told CHD.TV, “The law does not allow an agency to voluntarily stop an illegal activity and then claim they shouldn’t be held legally accountable.”
According to Gibson, because the state did not follow proper procedure for repealing the mandate, the repeal is not yet official and, therefore, cannot serve as the basis for declaring the lawsuit moot:
“New York State misrepresented itself in court today by not making clear the lengthy process that is required to rescind the mandate. There needs to be a public comment period as well as hearings for the mandate to actually be rescinded.
“Moreover, there has been no official announcement. What the attorney for the state has asked the court to do is to take their word for it that they will eventually rescind the mandate.”
Commenting on today’s news, Kim Mack Rosenberg, acting outside general counsel for CHD, told The Defender:
“In a surprise move, at the top of the argument, the state’s attorney notified the court that the state would be rescinding the order — a clear victory! However, the state nonetheless asked the court to overturn the lower court victory for the healthcare workers who lost their jobs due to the mandate.
“Representing those healthcare workers, Ms. Gibson clearly and effectively demonstrated to the appellate panel the state’s attempt to avoid accountability. The state’s mandate devastated the lives of over 30,000 healthcare workers. Accountability is important here both for the mandate at issue here and with respect to future potential actions by the state.”
Mandates for healthcare workers were ‘predictably devastating’
The Jan. 13 ruling found the vaccine mandate to be “arbitrary and capricious,” noting that COVID-19 vaccines cannot stop transmission, thereby contradicting the stated purpose of the mandate to stop transmission of the virus.
New York State appealed the ruling on Jan. 24, challenging “each and every part” of the Jan. 13 decision.
Initially, the ruling remained in effect despite the appeal. However, on Feb. 28, the Appellate Division granted an injunction requested by the NYSDOH, placing the vaccine mandate back in effect pending appeal.
In their April 17 brief responding to the state’s appeal, the plaintiffs argued that the effects of the vaccine mandate were “predictably devastating,” adding that “Over 34,000 healthcare workers have been pushed out of the field because of the mandate, causing an unprecedented crisis in New York’s healthcare system.”
Then-Gov. Andrew Cuomo enacted the mandate on Aug. 16, 2021, as an “emergency” regulation. The NYSDOH subsequently adopted the mandate as a permanent rule on June 22, 2022, even though New York ended its COVID-19 emergency on June 24, 2021.
In a brief submitted April 27, New York State claimed wide authority under the law to require healthcare workers to receive vaccines and argued that the lack of a religious exemption within its mandate was upheld by the 2nd Circuit U.S. Court of Appeals in a “nearly identical” case.
The state was referring to a separate challenge against the mandate filed by 16 New York healthcare workers. That challenge was rejected by the 2nd Circuit in November 2021. In June 2022, the U.S. Supreme Court declined to hear the workers’ appeal.
In its April 27 brief, NYSDOH claimed it narrowly tailored its mandate to “protect New York’s health system, and by extension, all New Yorkers, from communicable diseases.”
The state also claimed that it “relied on empirical information in determining that the [COVID-19] vaccines are effective — both because they reduce the overall number of cases and because they mitigate the consequences of infections by reducing the likelihood of serious illness and hospitalizations.”
A separate March 17 brief filed by the state claimed that the state legislature “has broadly empowered” the NYSDOH “to issue rules to protect the public health and ensure that hospitals and other healthcare facilities are safely run,” and that this authority includes the right to mandate immunizations.
“The COVID-19 vaccines are a safe and effective way to protect against the virus and the severe health outcomes it can cause,” the state argued. “State and federal courts have found that DOH’s regulation is a reasonable exercise of its rulemaking authority.”
In their April 17 brief, the plaintiffs countered that only the state legislature has lawmaking authority and that it has opted not to add COVID-19 vaccines to the list of inoculations that can legally be mandated in the state. Plaintiffs said the legislature also enacted a statute balancing public health regulations with religious rights.
The plaintiffs also argued that when the vaccine mandate was codified into state law in June 2022, “it was already beyond dispute that vaccines cannot stop the spread of COVID-19.” Nevertheless, the mandate was made permanent, even though the regulatory impact statement acknowledged that the vaccines did not stop transmission.
In the initial lawsuit, the plaintiffs argued there was “no rational basis” for the mandate when the NYSDOH “acknowledges the mandated vaccine fails to accomplish its stated goal, i.e., prevent the spread of COVID-19.”
By enacting the mandate, the NYSDOH violated the separation of power doctrine, the plaintiffs said, by usurping the authority of the New York State Assembly. Moreover, by accommodating only medical exemptions but not religious exemptions, the mandate violated the state’s Human Rights Law, the lawsuit claimed.
The lawsuit also alleged the plaintiffs had lost — or were at imminent risk of losing — their jobs, and that several of them had religious objections to receiving the vaccine, but the mandate did not recognize those exemptions.
The original lawsuit referenced the acute healthcare worker shortage in New York — which was also recognized by Gov. Hochul. According to the lawsuit:
“Governor Hochul admitted that her Mandate was causing a crisis, preemptively declaring a ‘state of emergency’ (and with that invoking emergency powers) the night before it took effect due to the healthcare worker shortage that she and the other Respondents caused.
“Despite calling in the National Guard, the crisis has only deepened since last year, and the Governor has continuously renewed these ‘state of emergency’ declarations on the grounds that the state faces a staffing crisis in healthcare.”
A Jan. 19 letter drafted by 10 state lawmakers and sent to Gov. Hochul argued that the mandate exacerbated healthcare staffing shortages in the state.
The lawsuit also argued that the vaccine mandate was made permanent in 2022, even though the state ended its COVID-19 emergency a year earlier. According to the plaintiffs, this is in violation of sections 206, 613, 2164 and 2165 of New York’s Public Health Law.
In its Jan. 13 ruling, the court generally agreed with the plaintiffs’ arguments, finding the defendants “acted outside of their legislative grant of authority” and “are clearly prohibited from mandating any vaccination outside of those specifically authorized by the Legislature.”
As a result, wrote the court, “The Mandate … is beyond the scope of Respondents’ authority and is therefore null, void, and of no effect, and Respondents, their agents, officers, and employees are prohibited from implementing or enforcing the Mandate.”
Significantly, the court noted the mandate did not draw upon “special expertise in the field,” finding that “it is clear such expertise was not utilized as the COVID-19 shots do not prevent transmission,” while the term “fully vaccinated” within the mandate, was “defined at the whim” of the state and was therefore “arbitrary and capricious.”
Notably, even though New York State’s COVID-19 emergency has not been in effect since June 2021, state taxpayers continue to fund Excelsior Pass, New York’s digital “vaccine passport,” to the tune of $200,000 per month, according to a May 15 New York Post report.
This expenditure relates to the cost of maintaining the personal information of 11 million New Yorkers stored within the platform.