A federal appeals court on Monday extended a temporary restraining order on a much-debated decision by the Obama administration to require employer health plans to cover vaccines for autism and measles in children.
The full U.S. Court of Appeals for the District of Columbia Circuit temporarily barred the U.S. Department of Health and Human Services and the Office of Personnel Management from enforcing the government mandate that required most employers to provide the recommended childhood vaccines in lieu of paying a cost surcharge, on or before Sept. 1, 2016. The rules were set to take effect Nov. 30, 2016.
“We hold that the preliminary injunction is properly granted because plaintiffs have a likelihood of success on the merits of their claim that the mandate is arbitrary and capricious,” wrote Judge Judith Rogers, a Clinton appointee, for the court, which has limited responsibility for federal administrative rules.
Also, an adverse decision would “unduly cause confusion and disrupt the health of tens of millions of Americans for some period of time,” Judge Judith Rogers wrote in a separate opinion from that of Judge Merrick Garland, a Ronald Reagan appointee.
The temporary court order was issued Monday morning, but a number of groups with websites that encourage vaccinations had posted blogs that said the ruling would not affect the overall course of the case, indicating the circuit court is not expected to alter the June 8, 2016, ruling by U.S. District Judge Rosemary Collyer. The appeals court acted Monday in reaction to the initial agency rule, which violates the Constitution by using its power to regulate commerce among the states to make decisions that should be left to each state, as it says is the purpose of the Commerce Clause of the Constitution. The appeals court’s temporary order will keep the HHS, OPM and Centers for Disease Control and Prevention from enforcing the HHS mandate.
Health experts who have worked in vaccine policy projects say the injunction might have a limited impact beyond the region the case was filed. “It’s possible [the ruling] might last for a few years,” said John Purdon, a former White House director of public affairs on public health and humanitarian crises who now works at the Johns Hopkins Bloomberg School of Public Health.
Local health advocates welcome the ruling. “It’s an important decision,” said Denise Takahashi, coordinator of the Washington Area Immunization Coalition, an advocacy group.
The Trump administration, which has also sought to discourage vaccinations, has remained silent about the court ruling. However, Vicky Jones, head of the state of Washington’s department of health services, said the office would “maintain the status quo pending further legal decisions on the issue.”
When the rule was announced, public health advocates lauded it as a milestone in vaccine policy. Sanders Sunn, a founding member of the Republican vaccine policy-advocacy group SICK PAC, and a former health adviser for the GOP presidential campaign of Mitt Romney, said the Obama administration “did the right thing” with the proposed rule.
The National Association of Health Underwriters said the change would “strengthen the ties between work and life and allow the vast majority of employers to continue to offer an unlimited number of vaccines for their employees for free.”
The American Legion, which has long advocated for more parental choice in immunizations, applauded the court’s decision. But Sam Karsen, director of health projects at the California Immunization Coalition, said he feared the government could appeal the ruling to the Supreme Court and use the last remaining question in the case — whether Commerce Clause power gives the government the authority to regulate individual decisions — as “the device to write this rule through.”
“The U.S. Supreme Court might choose to decide that, because it’s a darn good political thing for them to do,” Karsen said.
An HHS spokeswoman said the department is still reviewing the ruling. “We have made good progress with our stakeholder partners, and we look forward to moving ahead with the plans we previously announced to help promote important protections for the health and safety of children and families,” spokeswoman Charmaine Yoest said.
However, advocates say the court opinion, if continued, will eliminate the exclusion of vaccines for autism and measles, along with other rare diseases, from the standard childhood vaccination schedules.
“We’re done waiting for politics to get in the way of science and medical science,” said Nabil Elomar, the deputy director of policy and research at MedImmune, the vaccine company in Frederick, Maryland.
This article was reported with the