ALBANY — An upstate New York federal judge granted a preliminary injunction against Gov. Kathy Hochul’s COVID-19 vaccine mandate, barring the state Department of Health from enforcing the requirement on healthcare workers who claim religious exemptions while the case is being decided.
“Upon review, plaintiffs have established at this early stage of the litigation that they are likely to succeed on the merits of this constitutional claim,” wrote Utica federal Judge David Hurd Tuesday.
He granted the request in response to a religious-freedom lawsuit filed last month against Hochul, the DOH and Attorney General Letitia James by 17 anonymous healthcare workers — the majority being Catholic — claiming the state’s mandate violated their constitutional rights.
Hurd’s decision extends a temporary restraining order granted shortly after the suit was filed and prohibits employers from citing the state’s mandate to deny exemption requests. It also pauses the DOH’s ability to enforce the rule, or revoke any religious exemptions granted since the mandate took effect on Sept. 27.
The mandate also permits employers to fire workers if they refused to comply and did not have a valid medical exemption.
“Plaintiffs have established that [the mandate] conflicts with longstanding federal protections for religious beliefs and that they and others will suffer irreparable harm in the absence of injunctive relief,” he added.
“These conclusions have nothing to do with how an individual employer should handle an individual employee’s religious objection to a workplace vaccination requirement. But they have everything to do with the proper division of federal and state power.”
Hochul said she will continue to defend the mandate in court.
“My responsibility as Governor is to protect the people of this state, and requiring health care workers to get vaccinated accomplishes that. I stand behind this mandate, and I will fight this decision in court to keep New Yorkers safe,” she responded in a statement.
The healthcare workers argued in their lawsuit that they refused to be inoculated with the available coronavirus vaccines “because they all employ fetal cell lines derived from procured abortion in testing, development or production.”
The filing alleges the plaintiffs have “been threatened with professional discipline, loss of licensure, admitting privileges, reputational harm, and/or the imminent termination of their employment as a result of their refusal to comply.”
The complaint also alleges the mandate violates the US Constitution’s supremacy clause, under which federal law takes precedence over state law, and the equal protection clause of the 14th Amendment, which prohibits official discrimination.
Originally the state considered allowing religious exemptions in addition to the medical exemptions, but that language was removed before the emergency rule was adopted Aug. 26 by the DOH.
“This intentional change in language is the kind of “religious gerrymander” that triggers heightened scrutiny,” wrote Hurd.
So far, nearly 10,000 healthcare workers in hospitals and nursing homes have claimed a nonmedical exemption, according to data provided by the DOH last week.
That figure includes 7,019 hospital employees — 1.4 percent of around 521,000 employees statewide — and 2,934 nursing home workers — or 2.1 percent of 140,917 total employees statewide.
A smaller number have been approved for medical exemptions including 2,607 hospital workers — or .06 percent total — and 674 nursing home staffers — 0.5 percent.
It’s unclear how many workers statewide have been fired as the result of the mandate, but Northwell Health — the state’s largest hospital and clinical network — canned 1,400 workers last week for refusing to get the shot.
The system employs roughly 76,000 individuals.
“With this decision the court rightly recognized that yesterday’s ‘front line heroes’ in dealing with COVID cannot suddenly be treated as disease-carrying villains and kicked to the curb by the command of a state health bureaucracy,” said Christopher Ferrara, special counsel for the Thomas More Society, a Chicago-based conservative law firm representing the plaintiffs.
Several plaintiffs “contracted COVID while treating patients, recovered, and were allowed to return to work with the same protective measures that were good enough for the 18 months that they were the heroes in the battle against the virus,” he added.
“There is no ‘science’ to show that these same measures are suddenly inadequate – especially when they are allowed for those with medical exemptions.”
In January, the US Conference of Catholic Bishops said, “it can be morally acceptable to receive a vaccine that uses abortion-derived cell lines if there are no other available vaccines comparable in safety and efficacy with no connection to abortion.”