Consolidated appeal will decide fate of vaccine mandate for NY health workers

MANHATTAN (CN) — Vying to quash challenges from both upstate and down, New York defended its Covid-19 vaccine mandate for health care workers on Wednesday before a three-judge appellate panel. 

The Second Circuit heard in tandem two similar cases brought by nurses and doctors who say the state’s lack of a religious exemption to its vaccination requirement violates their constitutional rights to exercise their religious beliefs. 

Unlike in New York City, where religious objectors working in schools can provide a letter from their clergy that certifies to their need for an exemption, the state offers no such option. Three nurses who filed suit in the Eastern District of New Yorik were denied an injunction, but the Second Circuit later ordered the state to temporarily grant religious exemptions as the appeal proceeds. 

The trouble for many asserting faith objections is that, across the religious spectrum, there is near unanimity among major churches and denominations that every person eligible should immunize themselves against the novel coronavirus, which has killed more than 4.9 million people around the world as of Wednesday. Framing the issue as a matter of public health not personal choice, medical experts note that vaccines are most effective when everyone gets them. Without them, variants spread and breakthrough infections can occur.

Those claiming religious objection point to the remote connection that the vaccines have to laboratory use of a fetal cell line harvested from aborted fetuses acquired in the 1970s and 1980s. As attorneys for the state noted in arguments Wednesday, however, the same cell lines were used to develop dozens of common medicines, from Tums and Benadryl to Tylenol and Pepto-Bismol, which stoke little controversy.

Cameron Atkinson, an attorney for the Long Island-based nurses with the New Haven, Connecticut, firm Pattis & Smith, assured the Second Circuit that he personally has chosen to stop consuming these medications now that he is aware of their origins. 

“Moral culpability depends on knowledge,” Atkinson told the three-judge panel.

U.S. Circuit Judge Robert D. Sack said he could understand that reasoning: “Sometimes an informed decision, according to their faith, means ‘I cannot take this vaccine.’ OK, I appreciate that, that’s what we're supposed to protect.” 

But he pushed back on the idea that holding religious beliefs may never get in the way of one’s life decisions. 

“If you're going to be a martyr, that means, ‘I can’t take this medicine, and therefore I can no longer be a nurse in a New York City hospital.’” 

Someone whose religion prohibits them from working on Saturdays, for example, couldn't get a job as a Jones Beach lifeguard, reasoned Sack, a Clinton appointee. 

Deputy New York Solicitor General Steven Wu, arguing on behalf of the state, said he wasn’t aware of any religious-based challenges to the requirement that schoolchildren get the MMR vaccine against measles, mumps and rubella. 

Sack posited a reason as to why. 

“It was a different day and age,” he said, referring to cause célèbre of just two years past when a measles outbreak caused New York and other communities to stiffen their childhood vaccine requirements. “This is a politicized issue now, and people are excited about it in ways that they weren’t then.” 

Wu argued that the current medical exemptions to the vaccine mandate are “just not comparable” to religious exemptions. 

“This is a neutral, generally applicable law that is sustained under the free exercise clause,” he said.

Anyone denied accommodations based on their religion, Wu said, could avail themselves of Title VII of the Civil Rights Act. 

Not so, argued Christopher A. Ferrara of the Thomas Moore Society, who represents the plaintiffs in the other case heard on Wednesday — a group of anonymous health care workers who were granted a preliminary injunction in the Northern District of New York. 

The only accommodations from hospitals would be providing telemedicine, instead of working in person, Ferrara said. 

“Surgeons cannot do surgery remotely,” he said. “I don't see how a medical resident can complete a residency without being physically present in the hospital.” 

In his brief to the Second Circuit, Ferrara argued that the same personal protective equipment that protected health care workers in the early months of the pandemic, before a vaccine was available, should still be enough. 

“Defendants have not shown that granting the same accommodations to Plaintiffs for religious reasons would impose any more harm — especially when Plaintiffs have been on the front lines of stopping Covid for the past 19 months while donning PPE and exercising other proper protocols in effectively slowing the spread of the disease, even after Covid vaccines were introduced early this year, and even since the delta variant appeared.” 

That reasoning was puzzling to U.S. Circuit Judge Susan L. Carney. 

“The circumstances from a public health perspective look, to me, to be quite diff than they were in April and May of 2020,” said Carney, an Obama appointee. “Do you dispute that the Delta variant has caused a surge of transmission in cases?” 

Ferrara replied, claiming that he was citing the Centers for Disease Control and Prevention in saying that vaccines don’t prevent the spread of the delta variant. The CDC, in fact, says that “high vaccination coverage will reduce spread of the virus and help prevent new variants from emerging.” 

Senior U.S. Circuit Judge John M. Walker Jr., appointed by George H. W. Bush, rounded out the panel, which reserved judgment following Wednesday’s arguments. 

In an email to Courthouse News, Atkinson said he believed the state was incorrect in claiming that religious accommodations were available under its regulations. He also had harsh words for New York Governor Kathy Hochul, who in September called the Covid vaccine a gift “from God to us” while visiting Christian Cultural Center in Brooklyn. 

“New York got caught discriminating today, and it tried to amend its regulation in court,” Atkinson wrote. “It should’ve thought about that before Governor Hochul invoked her direct line to God to engage in hysteria based religious discrimination.”

At the Brooklyn event, Hochul wore a gold necklace spelling out the word “Vaxed.”

“We are not through this pandemic,” she said. “I wished we were but I prayed a lot to God during this time and you know what — God did answer our prayers. He made the smartest men and women, the scientists, the doctors, the researchers — he made them come up with a vaccine."

Hochul’s office did not return a request for comment on Wednesday afternoon. Read the state's briefs on the cases.

Follow @NinaPullano

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