New York tells SCOTUS to allow vaccine mandate for health care workers to remain on the books

By Ariane de Vogue, CNN Supreme Court Reporter

New York Attorney General Letitia James urged the Supreme Court Wednesday to deny a request from a group of New York health care workers to block the state’s vaccine mandate, arguing that the emergency rule requiring vaccinations for certain health care workers is necessary to combat the spread of the virus, which can lead to a “vicious cycle of staff shortages and deterioration of patient care.”

James’ filing was in response to a lawsuit brought by three nurses and a group called We the Patriots USA, Inc., who object to the fact that while the mandate allows exemptions for those with medical objections, there is no exemption for people with religious objections.

It’s the latest dispute concerning the various types of mandates to reach the high court, and it is nearly identical to recent cases brought by workers in Maine. The court has yet to block a mandate, although the Maine mandate went into effect over the objection of three conservative justices.

The nurses say they object to the vaccines because of their distant relation to fetal cell lines developed from abortions in the 1970s and 1980s. The Vatican’s Congregation for the Doctrine of the Faith said last December in a note approved by Pope Francis that receiving the shot was morally permitted.

“It is morally acceptable to receive Covid-19 vaccines that have used cell lines from aborted fetuses in their research and production process,” the Vatican note said. The nurses say they are “devout Christians” who “object to deriving any benefit — no matter how remote — from a process involving abortion.”

In briefs Wednesday, James said that the vaccines do not contain aborted fetal cells. She said that some cell lines “which are currently grown in a laboratory and are thousands of generations removed from cells collected from a fetus in 1973” were used in the “testing during the research and development phase of the Pfizer and Moderna vaccines.” She added that the use of fetal cell lines for testing is “common” including for the Rubella vaccination.

She said that the “narrow grounds” for an exemption based on medical issues is “largely temporary,” such as a “severe or immediate allergic reaction” after a previous dose of the vaccine, and added that in the nursing home sector 88.7% of workers are fully vaccinated.

New York’s mandate requires all state health care workers to receive the vaccine and allows an exemption only for those with medical objections.

A lawyer for the nurses said the mandate violates the First Amendment because it requires employers to terminate health care workers who refuse the vaccine because of their religious beliefs, but offers an exemption to those workers who refused based on medical objections.

Last month, when the Supreme Court denied a request to block the Maine rule, the court’s right wing — Justices Neil Gorsuch, Clarence Thomas and Samuel Alito — dissented and said they would have halted the mandate while the appeals process plays out.

Writing for his two conservative colleagues, Gorsuch pointed to the fact that “unlike comparable rules in most states,” Maine’s rule contained no exemption for those whose “sincerely held religious beliefs preclude them from accepting the vaccine.”

He said that workers “who have served on the front line of a pandemic for the last 18 months, are now being fired and their practices shuttered,” all for “adhering to their constitutionally protected religious beliefs.” He added: “Their plight is worthy of our attention.”

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