On August 18th 2021, the state of New York enacted a COVID-19 vaccine mandate for all government employees and healthcare workers. This rule enforced that either these workers get vaccinated or they lose their job, including unemployment benefits. While at first this neutrally applied mandate did allow for religious and medical exemptions, when Governor Kathy Hochul took office, she partially reversed this motion. She struck the religious exemption from the law, but kept the medical exemption. As such, workers who were previously religiously exempted can either violate their religious beliefs or lose their job and unemployment benefits.
The Thomas More Society, a nonprofit public interest firm, filed a lawsuit against this version of the mandate for seventeen healthcare workers who have sincere religious objections to the COVID-19 vaccine. These workers, although opposed to taking the vaccine, are willing to endure consistent testing and wearing protection such as masks. Others have also received natural immunity due to working with COVID patients. Becket, another nonprofit firm, soon joined with them and asked the case be taken up by the Supreme Court, a request which was denied.
The main question in this case is: Does this vaccine mandate with no room for religious exemptions violate healthcare workers' religious freedoms? I would like to argue that if the court had taken up this case, then they would argue yes. This issue is important because it determines a precedent for vaccine mandates, in which the government would or would not need to take religious considerations into effect when it creates a mandate.
To these ends, I would like to bring up the Sherbert test, first applied in Sherbert v. Verner, which has three prongs of deliberation. First, does the mandate impose a substantial burden on the free exercise of religion? Second, if yes, is there a compelling state interest for the policy? Third, if yes, can it be achieved through a less restrictive means?
With the first prong of the Sherbert Test, I would like to argue that this vaccine mandate does pose a substantial burden on these healthcare workers. Some of these religious beliefs relate to the usage of cells from aborted fetuses in the vaccines. As I previously mentioned, these workers are required to either violate their religious beliefs by having themselves injected by something which they believe to be immoral or lose their job, along with any unemployment benefits they might have otherwise received. While this is a facially neutral mandate, this revision has a disparate impact on religious minorities.
The second prong of the test, the compelling state interest, is clear. The patients in the hospital are especially vulnerable to COVID-19, and we know that masking, vaccination, and testing can help prevent and identify the disease. Vaccination, in particular, has become widespread throughout 2021 as an effective defense against COVID-19 as well.
However, I cannot say how compelling this interest is in the strictest sense because Governor Cuomo's original mandate had room for religious exemptions. One notable precedent to this case would be Jacobson v. Massachusetts from 1905, where a smallpox vaccine was mandatory in cities, and the defendant, Jacobson, refused to take it. The court ruled against him because "the law was a legitimate exercise of the state's police power to protect the public health and safety of its citizens." However, I would argue that this case differs from Jacobson greatly because of the immediate shift of the policy. In Jacobson, the vaccine mandate was in place from the start, with zero exemptions due to the lethality and the lack of medical resources to their disposal, while in this case, religious objectors to the vaccine had a reasonable out before it was taken away, and there were other effective ways to prevent and treat the virus.
This leads into the third prong. There are far less restrictive means to the vaccine mandate, that being masking up and testing regularly, that greatly lessen the burden placed on their freedom of religion. Despite the vaccine working to protect against covid, masks and tests are still useful tools, and these religious objectors have previously stated to have no issue abiding by these regulations.
I would also like to argue that Hochul's revision is hostile to religion because of the specificity of the change. The First Amendment states that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Hochul's revision of the bill explicitly removed the religious exemption despite the less restrictive means, and she later claimed that these religious, formerly exempted-people were "not listening to God." No civil magistrate should need to determine the validity of one's religion (not to confuse it with the sincerity with which one believes in a religion), and to do so is, as James Madison wrote in his Memorial and Remonstrance, an "arrogant pretension falsified by the contradictory opinions of Rulers in all ages." While I understand that these are essentially two arguments fused together, the main point is that in her statements, Hochul's revision is hostile to religion because of its sole restriction of religious exemptions, and her justification is implicitly judging the validity of a religious minority's beliefs. This stands in contrast to the neutrality government laws should have, both between religions and between the religious and the secular. While the secular medical exemption is maintained, the religious exemption is not.
I believe this revision is unconstitutional because despite the compelling state interest, there are less restrictive means that lighten the burden on religious freedom, that being using precautions such as masking and testing. Despite the precedent, there are clear and distinct difference between Jacobson v. Massachusetts and this case because of the former allowance and the preventatives already in place to stop COVID. Due to Gov. Hochul's sole change and comments thereafter, this indicates that this revision is hostile to religion, rather than neutral.
Sources:
https://www.becketlaw.org/case/dr-a-v-hochul/
https://www.scotusblog.com/case-files/cases/dr-a-v-hochul/
https://clearinghouse.net/case/18616/
https://www.scotusblog.com/2021/12/court-rejects-religious-challenge-to-new-yorks-vaccine-mandate-for-health-care-workers/
https://www.politico.com/news/2022/02/28/covid-vaccine-exemption-hospital-00011951
7 comments:
I agree with Max's analysis of this case. This is clearly a very important and recent issue that has popped up all over the country in recent times due to COVID. I agree with Max on his point that the law differs from that in Jacobson v. Massachusetts. It is important to note that the exemption was allowed at some point, but was then taken away, which is a key detail in deciding this case. While that part is important, I believe that the free exercise aspect of this case is what should trump all. It is extremely important to not force people to choose between their job and livelihood, and practicing their religion. Some of those who requested an exemption base their decision off of aborted fetuses being used in the development of the vaccine. Clearly, abortion is an issue that those who are religious hold dear, and to force a vaccine on these groups would be to create a precedent that could force a vaccine unto workers that view it as a violation of their beliefs. I would also say that the state does not have a compelling interest in forcing these workers to get vaccinated. Since the majority of Americans are vaccinated, I don't see the state interest in forcing a small number of people attempting to abide by their religious duties to act against their beliefs or be fired.
I think that the state has a compelling interest to keep the general public safe and mandating vaccines does this. The issue with COVID is that despite what people want to believe, it is not a personal issue. It is a community issue because the virus can be spread through the air. The state has the job of protecting the people and mandating vaccines does this by lowering the chance that any single person gets COVID and dies. There is also the issue that allowing a religious exemption puts the state in the position where they have to determine what is sincere and this creates more issues. I think removing the exemption is completely acceptable because the purpose is to protect people from dying and that is more important than someone's free exercise of religion.
While I do believe the state sees itself as having a compelling interest in protecting its citizens, legally speaking this case appears to be directly hostile to religion and a clear violation of the Free Exercise clause. Max mentioned that the Governor had made a comment claiming those who refused to take the vaccine were not in fact following God's will which, other than stating she knows what God wants possibly being a breach of Establishment, directly questions the validity of belief which time and again the Court has tried to shy away from in the past. That the exemption was revoked after being implemented appears to single out religious beliefs as the intention of the policy change which can negate the argument that the policy is facially neutral as everyone else—save for medical reasons—has to abide by the mandate as well.
I also agree with Max's analysis of the case. While the state does have a compelling interest to mandate the vaccine in the name of public safety, there are clearly less restrictive means to accomplish this goal. The state could require unvaccinated people to continue to wear masks or present evidence of a negative COVID test before entering a public space. I see no reason why the government should be allowed to violate someone's right to bodily autonomy, especially as the vaccine has proven to be far less effective at stopping the spread of the virus as initially thought. The government can clearly mitigate the risk of someone dying from COVID without requiring the vaccine. If someone wants to claim that the taking the vaccine goes against their religious beliefs, then the government forcing them to do so clearly goes against their free exercise of religion.
I believe that we can see the compelling state interest to mandate the vaccine as there was a pandemic, but I do believe it to be unconstitutional to remove the religious exemption option. If someone has a religious burden to deny this vaccine I do not believe they should have to choose between their religion and keeping their job. This puts the person in a very tough situation one that the Free Exercise Clause in the First Amendment is meant to protect. The exemption should be provided for religious exemption especially if there are religious exemptions on other vaccines. I believe that making someone choose between their religious obligations and livelyhood should not be an option and is a violation of their right to free exercise.
When reading this case, the most important aspect that stood out to me was that the religious exemption was taken away. If the newly proposed policy took away medical and religious exemptions I think there would be more of a case here to argue that it is constitutional. However, since they kept the medical exemption they must allow a religious exemption as well in order to maintain a position of neutrality in respect to religion. I understand the compelling state interest for people's safety, but once they open the door to exemptions, then they must be willing to grant a religious one.
I really think it comes down to the science in cases like these. For example, if it is determined that a KN95 is equally as effective as the vaccine I think there are less restrictive means and religious exemptions should be allowed but if it is less effective in even a small percentage of cases I do think the patients are the priority. The job of the hospital is to take care of the patients after all and not to provide jobs. I am unsure of the relative effectiveness but this is quite literally a life or death scenario and because of that I think the most important factor here is the states compelling interest. If there is even a small chance that someone could die as a result of a religious exemption then it should not be avalible. I think you have outlined this case very well and I agree that this would burden religion but ones right to exercise of religion should never be more important than another persons wellbeing.
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