Just after a lower court declined to immediately consider the states' claim that the mandate violates federal administrative law and states' rights, the Supreme Court this week turned away a challenge from Missouri and nine other states.
"When the Supreme Court decides not to take a case, it doesn't have any precedential value, because there's no discussion about the merits of the case," explains Mat Staver, founder and chairman of Liberty Counsel. "This case is far from over."
He expects Missouri and other states will start at the lower court again and work their way back up.
The Biden administration issued the healthcare worker rule in November 2021. Then in January 2022, the Supreme Court allowed it to be enforced while challenges were heard in lower courts.
Staver suggests that the Religious Freedom Restoration Act and other free exercise of religion arguments should be made for the individuals who are being forced to get the COVID-19 shots.
"However, the CMS (Centers for Medicare & Medicaid Services) mandate already provides expressly that medical and religious accommodations must be considered," he adds. "We already have that as part of the law -- that even where it applies, the facilities ought to consider medical and religious exemptions. So the real issue left now is is there any authority whatsoever in this agency to impose this kind of requirement on a spending matter of Medicaid and Medicare."
That is the issue the states brought, and Staver says litigation on it needs to continue.
"I think that is what the states will do after this decision," he predicts.