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Judge: Temporary religious exemption for health workers refusing vaccine

A COVID-19 booster shot is readied at The

A COVID-19 booster shot is readied at The Feinstein Institutes for Medical Research in Manhasset on Sept. 1. Credit: Howard Schnapp

New York State must allow a religious exemption to its coronavirus vaccine mandate for health care workers, at least temporarily, a federal judge upstate ordered Tuesday, suspending a rule providing no exemptions.

The order, issued by Judge David N. Hurd of the U.S. District Court for the Northern District of New York in Utica, contrasts with one Sunday by a federal judge in Brooklyn, who refused to issue any suspension of the state's mandate.

In that case, which makes similar arguments to the one considered by Hurd, two Syosset Hospital nurses are objecting to the shots on religious-freedom grounds guaranteed by the First Amendment. The plaintiffs in the Syosset Hospital case are appealing to the U.S. Court of Appeals for the Second Circuit, whose jurisdiction includes all of the state.

Hurd's partial suspension, a temporary restraining order that applies statewide, lasts until at least Sept. 28, when he is to hear oral arguments. It does not, "as a practical matter," go into effect until Sept. 27, when health care workers must have gotten at least one vaccine dose as a condition of employment, he noted in the order. The plaintiffs want Hurd to go a step further and issue an injunction blocking the mandate until the case is resolved, according to court filings.

The controversy dates to mid-August, when then-Gov. Andrew M. Cuomo's office said that New York’s mandate for health care workers would include an exemption for those who don’t want the vaccine on religious grounds. But on Aug. 26, a state panel, under Gov. Kathy Hochul, unanimously voted against such an exemption. Her office didn't immediately respond to a message seeking comment.

In his order, Hurd blocked the state Department of Health from stopping hospitals from honoring previously granted exemptions or granting new ones. The order also prohibits the state from disciplining or otherwise sanctioning health care personnel over religious exemptions to the vaccine.

The plaintiffs in the case, Dr. A et al v. Hochul et al, are 17 health care personnel, including doctors and nurses. They are suing pseudonymously through the Thomas More Society, a religious-liberty nonprofit based in Chicago.

It’s one of several pending lawsuits seeking to challenge pandemic rules, including by the Syosset nurses who object on religious grounds to the use of stem cells, which were involved in some way with the development or testing of the vaccines. A family in Franklin Square and the Locust Valley and Massapequa school districts are also suing to halt the state’s masking mandates in schools.

Religious bodies, including the Roman Catholic Church, have urged vaccination, but several of the vaccine-mandate plaintiffs say their personal religious beliefs aren’t circumscribed by what those others say.

Last year, the Thomas More Society successfully challenged New York State in federal court. A judge in June 2020 ruled that the state was violating the First Amendment by restricting religious gatherings during the pandemic while simultaneously permitting both much larger protests sparked by the police killing of George Floyd and the opening of other activities and businesses.

In a news release, Dr. Joseph R. Sellers, president of the Medical Society of the State of New York, said of the court’s order: "We believe this step will result in a flurry of attempts to circumvent the well-reasoned vaccination requirement that was an important step toward reversing the recent surge attributable to the more easily spread Delta variant."

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