WASHINGTON (CN) — New York’s coronavirus vaccine mandate for health care workers is set to stay in place for good after the Supreme Court rebuffed several doctors and nurses who wanted a religious exemption.
The decision spurred a dissent on Thursday from conservative Justices Neil Gorsuch, Clarence Thomas and Samuel Alito.
“Unfortunately, the Court declines to take this prudent course,” Thomas wrote. “I would address this issue now in the ordinary course, before the next crisis forces us again to decide complex legal issues in an emergency posture.”
Thomas said the issue is a ripe one, three years into the pandemic, becasue state and appellate courts remain divided as to when strict scrutiny is needed to consider a mandate like New York’s, which allows a medical exemption but not one for religious reasons. To wit, three appellate courts and one state court have said it does, but three other appellate courts have refused to apply strict scrutiny.
“This split is widespread, entrenched, and worth addressing,” Thomas wrote.
“This case is an obvious vehicle for resolving that conflict. … The Court could give much-needed guidance by simply deciding whether that single secular exemption renders the state law not neutral and generally applicable.”
New York has argued that, in addition to the law being neutral and generally applicable, anyone denied accommodations based on their religion could avail themselves of Title VII of the Civil Rights Act.
Doctors and nurses who filed the lawsuit, originally in the Northern District of New York, say they have been ordered to choose between their jobs and their faith. And though a federal judge enjoined the mandate initially, the Second Circuit vacated that order in October, holding that the vaccine requirement did not interfere with the workers’ constitutional rights.
At oral arguments that brought in a separate challenge by three Long Island-based nurses, U.S. Circuit Judge Robert Sack 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,’” the Clinton appointee said.
He offered the hypothetical where a person whose religion prohibits them from working on Saturdays still tries to get a job as a Jones Beach lifeguard.
Christopher A. Ferrara argued on behalf of the anonymous upstate New Yorkers opposed to the vaccine that the state offered an impractical workaround in a field as delicate as health care.
“Surgeons cannot do surgery remotely,” said 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.”
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.
No major religion has said its creed forbids the vaccine against Covid-19. 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. 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.
The Food and Drug Administration is poised meanwhile to moot religious objections to the coronavirus vaccine by authorizing a shot from Novavax that did not use the fetal cell lines in development.
Along with New York, Maine and Rhode Island don’t exempt health care workers from getting vaccines on the basis of their religion. The Supreme Court previously refused to block a similar challenge to Maine’s mandate.
There, 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.’”
Ferrara did not immediately respond to a request for comment.
Cameron Atkinson, who represents the Long Island nurses heard along with the plaintiffs here, said his clients will continue their fight in district court, where a state motion to dismiss is pending.
"The Supreme Court's decision does not have any controlling effect on our case," Atkinson, of the firm Pattis & Smith, told Courthouse News via email. "Our prayers are with our colleagues as they move forward with their case."
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