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.
Jonathan Hitsous, an attorney for the state, today told the court that New York no longer intends to enforce the mandate:
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“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.
The state later appealed, and separately won a stay against the initial ruling. The stay reinstated the mandate, which affected an estimated 34,000 healthcare workers.
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.
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“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.”
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. The Supreme Court declined to hear the workers’ appeal.