Updated: Federal judge blocks New York’s COVID vaccine mandate for health workers

Editor’s note: This report was updated on Sept. 14, 2021, to reflect developments. 

A federal judge has temporarily barred the State of New York from enforcing its policy that all health care workers receive a COVID-19 shot even if they have sincerely held religious objections to the inoculations. A temporary restraining order issued Sept. 14 by U.S. District Judge David N. Hurd of the Northern District of New York also bars the state from interfering with issuance of religious exemptions to the COVID shots, and enjoins any state licensing or regulatory actions against the 17 health workers who filed suit on Sept. 13.

The quick granting of the temporary restraining order was a major victory for the Thomas More Society, a Chicago-based civil-rights law firm and the 17 Christian health care workers it represents in a suit against New York Gov. Kathy Hochul and two other top state officials. Judge Hurd set a Sept. 28 hearing to decide whether to issue a preliminary injunction that would remain in force while the case merits are argued in court.

The Thomas More Society filed the 50-page suit—Dr. A, et al. v. Kathy Hochul, Governor of the State of New York, et al.—in U.S. District Court for the Northern District of New York in Albany, on behalf of 16 Catholics and one Baptist. The plaintiffs include doctors, nurses, medical technologists, a cognitive rehabilitation therapist and a physician’s liaison. Judge Hurd said the temporary restraining order “as a practical matter” does not take effect until Sept. 27, the first deadline set by the state for health workers to get the first dose of a COVID-19 vaccine.

“Judge Hurd’s Temporary Restraining Order, which he remarkably granted less than 24 hours after we filed the case and without any hearing or response from the (other) side, means it’s highly likely we will be entitled to a preliminary and permanent injunction against this brazen abuse of executive power,” said Thomas More Society Special Counsel Christopher A. Ferrara. “For months our clients worked as heroes on the front lines of stopping COVID-19 at great personal and professional risk, only to be nearly kicked to the curb by a flagrantly illegal mandate from constitutionally clueless government bureaucrats.”

The suit alleges the COVID policy violates Title VII of the Civil Rights Act of 1964 and is a “blatant violation” of the Supremacy Clause, the Free Exercise Clause and the Equal Protection Clause of the U.S. Constitution.

“By receiving one of the COVID vaccines currently available, all of which are abortion-connected, they believe they would be cooperating with the evil of abortion in a manner that violates their consciences and that they would sin gravely if they acted against their consciences by taking any of these vaccines,” the suit reads. Despite the recent disparate advice given by U.S. Catholic bishops on the morality of the shots, the plaintiffs  “reject as a matter of religious conviction any medical cooperation in abortion, no matter how ‘remote.’ ”

All of the vaccines available in the United States under emergency-use authorization were created using cell lines from aborted children in some part of research, development or production. The mRNA shots from Pfizer/BioNTech and Moderna used abortion-derived cell lines in some of the confirmatory lab testing, according to the Charlotte Lozier Institute. Johnson & Johnson and AstraZeneca used abortion-derived cell lines in their vaccine development and/or production. Only Pfizer/BioNTech has received final approval from the U.S. Food and Drug Administration (FDA) for its shots, which will be marketed under the trade name Comirnaty. 

A New York State Department of Health regulation promulgated Aug. 26 requires approximately 450,000 personnel in hospitals, diagnostic and treatment facilities, nursing homes, adult care facilities, hospices and home-care agencies to be “fully vaccinated” against the Wuhan coronavirus that causes COVID-19. Proof of the first dose was required between Sept. 27 and Oct. 7. The mandate revoked a public health order issued Aug. 18 by New York Health Commissioner Dr. Howard A. Zucker that allowed exemptions for sincerely held religious beliefs. The new rules allow only medical exemptions.

The suit says the State of New York is targeting Christians with a policy that would create a “caste of untouchables” who face loss of jobs and professional standing during a “pervasive climate of fear and loathing of the unvaccinated.”

“The targeting of a large class of religious objectors to mandatory vaccination among health professionals, who are very knowledgeable on this subject—and notably at least 20 percent of the health care workforce in New York—is plainly evident,” the suit said. The plaintiffs are identified in court papers only by initials because “they run the risk of ostracization, threats of harm, immediate firing and other retaliatory consequences if their names become known,” the suit said.

Ferrara called the vaccine mandate “a power grab by people who think they can get away with anything.” Defendants in the case include Gov. Hochul, Attorney General Letitia A. James and Dr. Zucker, the commissioner of the New York State Department of Health. Hochul and Zucker “continue to behave as if the ‘disaster emergency’ had never ended—and never will end,” the court filing said.

“What New York is attempting to do is slam shut an escape hatch from an unconstitutional vaccine mandate,” Ferrara said in a statement. “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.” Ferrara said the federal court has a duty to “put a strait jacket on this institutional insanity.”

“Never in the history of New York state, never in the history of the world, has a government sought to forcibly impose mass vaccination on an entire class of people under threat of immediate personal and professional destruction,” Ferrara said. “This is just another example of how Covid regimes are completely out of control.”

Ferrara said the plaintiffs are not against all vaccines. “These plaintiffs are not – I repeat – not anti-vaxxers, as the fake news media calls them,” he said. “They are in fact in favor of voluntary vaccination with informed consent, but they oppose jack-booted coercion by the state to take a vaccine their religion forbids them to take. This is America, not Red China.”

In a Sept. 13 update on New York’s battle against COVID-19, Gov. Hochul said, “We all want to put COVID-19 behind us, but the reality is we still have more work to do — and we need to stay vigilant. The vaccine is still our greatest weapon in this fight, and those who are still unvaccinated need to understand the power they have in their hands to help New York and our nation finally beat this virus.”

The suit is the latest evidence of growing angst over the morality, efficacy and safety of the heavily promoted COVID shots. Last week, four Creighton University students sued the university for not allowing them a religious exemption to the policy requiring all students be fully vaccinated. Weeks earlier, 16 Christian Athletes at Western Michigan University filed suit in federal court and were granted a preliminary injunction against WMU’s mandate that student athletes get the COVID jab. Health care executives across the United States have expressed fear that the shot mandates will worsen worker shortages if religious objectors resign or are terminated in large numbers.

A plaintiff referred to as “Dr. A” is a Catholic who works as a clinical pathologist at a private hospital that initially allowed staff to refuse the vaccines as long as they underwent weekly COVID testing. That policy changed Aug. 20 with the state health order, which did not allow for testing in lieu of vaccination but did offer medical and religious exemptions. Things changed again Aug. 27 with the new policy, which has no exemptions for sincerely held religious beliefs. Dr. A said he applied for a medical exemption, but has received no decision.

“Nurse A,” a Catholic who works at a major medical center, was granted a vaccine exemption based on religious beliefs on Aug. 20, but it was rescinded 10 days later based on the state health order. She received an email that said the hospital “can no longer consider any religious exemptions to the COVID vaccination, even those previously approved,” according to the suit. Nurse A has until Sept. 15 to get the jab or she will be placed on unpaid leave for a week. If she still refuses the shot, she will be “deemed to have opted to resign,” the suit said.

“Nurse D.,” a Catholic who works at a private hospital, requested a religious exemption to the mandate, but it was denied. Her employer told her if she did not inoculate, her employment would end Sept. 28 and the hospital will deem it “voluntary,” so she will not receive unemployment benefits. The suit said Nurse D. is a crucial source of income and insurance for her family. She said if the vaccine mandate continues, she will become unemployable, because no health facilities will hire an unvaccinated candidate.

The COVID policy is being driven by “unreasoning official coercion and widespread media-generated panic,” the suit contends. “The same ‘front line’ health care workers hailed as heroes by the media for treating COVID patients before vaccines were available … are now vilified by the same media as pariahs who must be excluded from society until they are vaccinated against their will,” the suit reads.

The suit questioned the heavy government push for coercive vaccines that “are clearly not as effective as promised and have known and increasingly evident risks of severe and even life-threatening side effects, including blood clots.” It warns that because of evidence the shots do not provide immunity to COVID, government authorities will insist on booster shots of the “same less-than-miraculous vaccines.”

“As things now stand, according to ‘public health authorities’ the vaccinated can infect the unvaccinated, the unvaccinated can infect the vaccinated, both the vaccinated and the unvaccinated can infect each other, and everyone must wear masks indoors in ‘high transmission’ areas—that is, virtually the entire country—as if no one at all had been vaccinated,” the court filing said.

In addition to striking down the vaccine mandate, the suit also seeks a permanent injunction barring the New York State Department of Health from taking any action against the licensure, certification, residency or admitting privileges of religious objectors to the COVID vaccines.