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No Supreme Court relief for N.Y. health care workers who passed on COVID-19 vaccine

The Supreme Court used its shadow docket Monday afternoon to turn down a group of health care workers who have been denied a religious exemption to New York state's mandate that they get the coronavirus vaccine. 

The order notes that Justice Clarence Thomas, Neil Gorsuch and Samuel Alito all voted to grant the application. Alito meanwhile joined a lengthy dissent from Gorsuch that tries to distinguish the doctors and nurses fighting for an exemption from “anti-vaxxers” who object to all vaccines.

"The applicants acknowledge that many other religious believers feel differently about these matters than they do," he wrote. "But no one questions the sincerity of their religious beliefs."

Led by a group called We the Patriots USA, the health care workers went to the Supreme Court last month after the Second Circuit vacated the injunction they had secured from an upstate federal judge.

The anti-abortion position against New York's mandate stems from a 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, however, dozens of common medicines such as Tums, Benadryl, Tylenol and Pepto-Bismol were developed using the same cell lines to little controversy.

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 5.3 million people around the world as of Monday.

“If you're going to be a martyr," U.S. Circuit Judge Robert Sack had noted at a previous hearing, "that means, ‘I can’t take this medicine, and therefore I can no longer be a nurse in a New York City hospital.’” 

On the same day the Second Circuit had turned down the New York workers, a group in Maine were denied a Supreme Court detour in their own challenge. Gorsuch had dissented in that case, too.

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New York's vaccine mandate, enacted in September by Governor Kathy Hochul, allows for medical exemptions, but not religious ones.

“Our greatest responsibility is to protect our most vulnerable," Hochul tweeted Monday. "Ensuring that the health care workers who care for our loved ones are vaccinated is critical to keeping New Yorkers safe.”

In a Nov. 4 opinion that followed its last ruling against We the Patriots, the Second Circuit noted that Hochul's mandate does not bar employers from providing unvaccinated employees with reasonable accommodations — telemedicine, for example, which would remove them from positions covered under the scope of the requirement. 

The state has denied unemployment benefits to workers who fail to comply with the mandate, however, and the workers say their jobs are on the line.

Gorsuch cited these injuries as a basis for the court to step in.

“In this case, no one seriously disputes that, absent relief, the applicants will suffer an irreparable injury,” Gorsuch wrote. “Not only does New York threaten to have them fired and strip them of unemployment benefits. This Court has held that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’”

The justice also insists that the number of workers seeking a religious exemption to the mandate would not make a difference in achieving the vaccination threshold. 

He warned that the court will come to see cases like this as history treats its 1940 decision in a case about Jehovah’s Witnesses who were expelled from school because they refused to salute the flag.

Though the court would later overrule that holding, it was not before Jehovah's "Witnesses across the country suffered hundreds of physical attacks" in the weeks following the decision.

“If cases like Gobitis bear any good, it is in their cautionary tale,” the Trump-appointed Gorsuch wrote. “They remind us that, in the end, it is always the failure to defend the Constitution’s promises that leads to this Court’s greatest regrets.” 

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Gorsuch also pointed to the lockdowns that occurred at the beginning of the pandemic as an issue requiring court intervention that never came. 

“At first, this Court permitted States to shutter houses of worship while allowing casinos, movie theaters, and other favored businesses to remain open,” Gorsuch wrote. “Falling prey once more to the ‘judicial impulse to stay out of the way in times of crisis,’ the Court allowed States to do all this even when religious institutions agreed to follow the same occupancy limits and protective measures considered safe enough for comparable gatherings in secular spaces.” 

Thomas Brejcha, an attorney with the Thomas More Society who represents the workers, did not respond to a request for comment following the order.

Gorsuch was adamant Monday that New York is discriminating intentionally on the basis of religion.

“Rather than burden a religious exercise incidentally or unintentionally, by the Governor’s own admission the State ‘intentionally’ targeted for disfavor those whose religious beliefs fail to accord with the teachings of ‘any organized religion’ and ‘everybody from the Pope on down,’” he wrote. “Even if one were to read the State’s actions as something other than signs of animus, they leave little doubt that the revised mandate was specifically directed at the applicants’ unorthodox religious beliefs and practices.” 

Because laws that burden religious exercise must be neutral toward religion or be able to survive strict scrutiny, Gorsuch questioned why the state is reluctant to show that its law was written to serve the state’s interest. 

“Putting a finer point on it: New York has presented nothing to suggest that accommodating the religious objectors before us would make a meaningful difference to the protection of public health,” Gorsuch said. “The State has not even tried.” 

Cases like the one from We the Patriots offer a test of the court’s substance, a hard decision to protect freedoms, the justices added. 

“How many more reminders do we need that ‘the Constitution is not to be obeyed or disobeyed as the circumstances of a particular crisis ... may suggest,'" the dissent concludes.

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Medical personnel don PPE before entering a COVID-19-positive, non-critical patient’s room.

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