New York’s Chinese coronavirus vaccine mandate for healthcare workers does not include an option for religious exemptions — a part to its order which is being challenged in federal court.
The state’s vaccine mandate went into effect September 27 after being revised roughly a month earlier to exclude religious exemptions and only include medical exemptions, court documents show. According to the Wall Street Journal, thousands of unvaccinated healthcare workers have been fired since the mandate took effect, “prompting hospitals to cancel elective surgeries and close operating rooms and outpatient clinics. Many nursing homes have stopped admitting new patients.”
Seventeen healthcare workers, represented by the Thomas More Society, a legal group that fights for religious liberty, brought a lawsuit against Gov. Kathy Hochul (D-NY), New York State Department of Health Commissioner Howard Zucker, and New York Attorney General Leticia James last month before the mandate went into effect. The lawsuit alleges the state is violating Title VII of the 1964 Civil Rights Act by discriminating against healthcare workers on the basis of religion and is violating the Free Exercise Clause of the First Amendment of the U.S. Constitution.
“The Vaccine Mandate, on its face and as applied, is neither neutral nor generally applicable as it grants the possibility of medical exemptions for reasons of secular “health” but bars religious exemptions according to the State’s unconstitutional value judgment that physical health is less important than spiritual health,” according to the complaint.
Judge David Hurd in the United States District Court for the Northern District of New York issued a restraining order on September 14, barring the state from punishing facilities that allow religious exemption requests. The judge, who is an appointee of former President Bill Clinton, extended the restraining order on September 20 to go until October 12. He will ultimately decide by then whether to grant Thomas Moore Society’s request for a preliminary injunction.
“What New York is attempting to do is slam shut an escape hatch from an unconstitutional vaccine mandate,” attorney Christopher Ferrara, Thomas More Society Special Counsel said in a statement in September. “And they are doing this while knowing that many people have sincere religious objections to vaccines that were tested, developed, or produced with cell lines derived from aborted children.”
The state filed a response to the lawsuit on September 22, claiming New York is under no constitutional obligation to allow religious exemptions to a Chinese coronavirus vaccine mandate for healthcare workers, the New York Post reported.
“The state’s efforts to promote widespread vaccination, especially of healthcare workers, is in the public interest and plaintiffs cannot reasonably argue otherwise,” the state’s response said in part.
The response continued in part:
Although Plaintiffs allege that they may face loss of employment or hospital admitting privileges if they do not receive the vaccine, these alleged consequences do not, as a matter of law, constitute ‘irreparable harm’ justifying the extraordinary remedy of a preliminary injunction.
Even if Plaintiffs could establish a violation of their rights, which they cannot, their alleged harm, potential loss of employment, is wholly remediable by money damages and thus does not support preliminary injunctive relief.
“…Be My Apostles”
Hochul said herself during remarks before Brooklyn’s Christian Cultural Center that she believes those who forego the vaccine “aren’t listening to God.” Then she, a government official, likened herself to Jesus Christ in an effort to persuade people to get vaccinated.
“I need you to be my apostles,” the governor added, saying that receiving the treatment is how New Yorkers can “love one another.”
The governor, who “prayed a lot” during the pandemic, also repeatedly called unvaccinated healthcare workers replaceable before the vaccine mandate went into effect, blowing past all the signs pointing to an oncoming healthcare worker shortage as a result of the order.
Hochul, who claims to be a Catholic, “has repeatedly pointed to statements by religious leaders who support vaccination: the Archdiocese of New York, for example, has told priests that granting religious exemptions would contradict Pope Francis,” the Associated Press reported. Notably, Catholicism and Evangelical Christianity are not the same — and a common tenet for all Protestants is they do not believe in the infallibility of the Pope or his recommendations — but politicians often conflate the two to make the point.
Moreover, while a majority of the plaintiffs in the lawsuit are Catholic, they are arguing they “have longstanding constitutional protections based on their own religious belief — not statements by religious leaders,” the report states.
By the Numbers
According to a (DOH) statement obtained by the New York Post on Wednesday, 2,934 workers have “claimed another exemption, which is the subject of pending litigation.” For hospitals, 7,019 healthcare workers have also claimed “another exemption” adding up to roughly 10,000 workers [at least] who are effected by New York’s exclusion of religious exemptions.
The New York Department of Health (DOH) has repeatedly touted high vaccination numbers among the state’s healthcare workers. When the mandate went into effect, 92 percent of 665,000 healthcare workers in the state were reportedly already vaccinated, the Wall Street Journal reported. That type of reporting can diminish the impact of vaccine mandates however — broken down, the leftover 8 percent of unvaccinated healthcare workers equals 53,200 people who stood to lose their livelihoods.
The DOH estimates show even higher vaccination rates now among healthcare workers since the mandate went into effect. Those percentages can also be misleading because many of those who are unvaccinated have been fired, resulting in a boost to the numbers.
“The deadline for the vaccine mandate for hospitals and nursing home staff has passed. The survey denominator does not include staff that have left the facility, and as more employees get vaccinated the rate will approach 100%,” the Department of Health’s (DOH) website says.
Hochul finally acknowledged healthcare worker shortages rocking the state, though instead of loosening the reins, she talked about calling on the National Guard and workers in other states to fill the void.
“We are still in a battle against COVID to protect our loved ones, and we need to fight with every tool at our disposal,” Hochul said in a statement. “I am monitoring the staffing situation closely, and we have a plan to increase our health care workforce and help alleviate the burdens on our hospitals and other health care facilities.”
“I commend all of the health care workers who have stepped up to get themselves vaccinated, and I urge all remaining health care workers who are unvaccinated to do so now so they can continue providing care,” Hochul said.
Looking at Potential Precedent
When disgraced former Gov. Andrew Cuomo attempted to trample religious liberty during the height of the Chinese coronavirus pandemic in 2020, the U.S. Supreme Court ultimately slammed him down. The high court ruled in favor 5-4 with the Roman Catholic Diocese of Brooklyn and Orthodox Jewish synagogues in their lawsuit alleging Cuomo’s gathering restrictions, which limited house of worship attendance from 10 to 25 people, violated religious freedom under the First Amendment.
SCOTUS held that Cuomo’s order was in violation of the Free Exercise Clause under the First Amendment because secular institutions did not experience the same level of scrutiny under the order.
The court’s opinion states:
Moreover, New York’s restrictions on houses of worship not only are severe, but also are discriminatory. In red and orange zones, houses of worship must adhere to numerical caps of 10 and 25 people, respectively, but those caps do not apply to some secular buildings in the same neighborhoods.
In a red zone, for example, a church or synagogue must adhere to a 10-person attendance cap, while a grocery store, pet store, or big-box store down the street does not face the same restriction. In an orange zone, the discrimination against religion is even starker: Essential businesses and many non-essential businesses are subject to no attendance caps at all.
In the same way, Thomas More Society is arguing that Hochul’s vaccine mandate violates the Free Exercise Clause.
“…The vaccine mandate also violates the Free Exercise Clause of the Constitution. It does so by subjecting those who have conscientious religious objections to the vaccine to termination from employment and irreparable damage to their professional standing, while exempting others from the mandate for more favored secular reasons,” the law firm said.
Ultimately, however Judge Hurd rules could set a precedent for religious exemptions both in New York and potentially other states.
The case is Dr. A v. Hochul, No. 1:21-cv-1009 in the U.S. District Court for the Northern District of New York.
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