NEW YORK (CN) — New York’s requirement for most healthcare workers to get vaccinated against Covid-19 beat a double-challenge to its constitutionality, with a Second Circuit ruling on an upstate and a downstate lawsuit heard in tandem.
The ruling vacated a previous injunction of the vaccine mandate, granted to a group of healthcare workers who filed suit in the Northern District of New York, saying they should be able to opt out of the vaccine on religious grounds.
Three nurses who filed the other lawsuit in the Eastern District of New York lost their bid for an injunction in the lower court, but the Second Circuit later ordered the state to grant religious vaccine exemptions during the plaintiffs’ appeal. That order was also vacated in Friday’s ruling, which was published without an opinion.
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 oral arguments on 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.
No major religion has declared the Covid-19 vaccine to be forbidden. Medical experts agree that widespread vaccination can cut down transmission, and in turn, the development of new variants of the coronavirus.
U.S. Circuit Judge Robert Sack on Wednesday 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.
While the state allows for medical exemptions, those are simply not comparable to what the plaintiffs are requesting, argued Deputy New York Solicitor General Steven Wu on behalf of the state.
“This is a neutral, generally applicable law that is sustained under the free exercise clause,” he said, and anyone denied accommodations based on their religion could avail themselves of Title VII of the Civil Rights Act.
The attorney representing the upstate New York employees argued that hospitals were only offering telemedicine as an accommodation, which is not practical for all medical practices.
“Surgeons cannot do surgery remotely,” said Christopher Ferrara of the Thomas Moore Society. “I don't see how a medical resident can complete a residency without being physically present in the hospital.”
In an email to Courthouse News, Atkinson said he believes the country’s highest court will have the final say, and come out in favor of his three clients.
“New York’s mandate forces an abominable choice on New York healthcare workers: abandon their faith or lose their careers,” Atkinson wrote. “Diane Bono, Michelle Melendez, and Michelle Synakowski have refused to buy one-way tickets to hell on the hysteria express. They have committed their futures to God’s hands, and we remain optimistic that the United States Supreme Court will strike down New York’s discriminatory mandate as violating the First Amendment.”
On Friday, the Supreme Court refused to block a Covid-19 vaccine mandate for Maine healthcare workers, which went into effect on the same day.
Justice Amy Coney Barret wrote the one-paragraph opinion, declining to hear the religious exemption lawsuit, focused on the use of the so-called shadow docket, which has come under recent scrutiny as a tool to fast-track politically charged cases.
“In my view, this discretionary consideration counsels against a grant of extraordinary relief in this case, which is the first to address the questions presented,” she wrote.
Justice Neil Gorsuch penned an eight-page dissent: “Laws that single out sincerely held religious beliefs or conduct based on them for sanction are ‘doubtless . . . unconstitutional.’”
The New York appellate decision came as New York City employees face a new vaccine mandate, which will be enforced starting on Monday. After Mayor Bill de Blasio announced the mandate last week, more than 15,000 New York City municipal employees have gotten vaccinated, according to a data analysis by Gothamist.
However, twice as many government workers have yet to get the shot, which has raised concerns about staffing the city's police, fire and sanitation departments.
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