A federal appeals court panel heard arguments Wednesday in a case brought by New York health care workers with religious convictions fighting the state's COVID-19 vaccine mandate.
The workers won an injunction at the district court level but the state appealed.
Appearing before the U.S. Second Circuit Court of Appeals, the state claimed that U.S. District Judge David Hurd was wrong to issue the injunction because the state’s order for all health care workers dealing directly with patients does not violate the Civil Rights Act’s protections against religious discrimination.
“This rule just requires vaccination for certain employees engaged in certain functions,” New York Deputy Solicitor General Steven Wu told the three-judge panel. “It does not apply if the employee is not engaged in that function, and by that same token, nothing prohibits an employer from reassigning someone to functions that would not be covered by this rule.”
The state initially issued the order for health care workers to get vaccinated against COVID-19 in mid-August. At that time, the order allowed for religious objections. However, less than two weeks later, the state issued a new order that struck exemptions for religious objections but kept them in place for individuals with medical reasons.
That led 17 health care workers to file suit last month in the U.S. District Court in the Northern District of New York. The plaintiffs said being forced to take a vaccine that had been produced from or tested against cell lines derived from an aborted fetus went against their deeply held Christian beliefs.
Hurd initially granted the workers a restraining order on Sept. 14 and then issued the injunction two weeks ago.
Christopher Ferrara, a lawyer with the Thomas More Society representing the health care workers in the state, told the appellate judges that Hurd’s injunction actually has allowed health care providers to make accommodations for the plaintiffs by allowing them to continue practicing in medical facilities using personal protection equipment.
If health care facilities were forced to use other means, such as assigning plaintiffs to practice only by telemedicine, then Ferrara said that might infringe upon the rights of those with religious convictions against the vaccine.
“I don’t see how a medical resident can complete a residency without being physically present in the hospital,” he said. “How a surgeon can do surgery without being in the hospital, (or) how a nurse can provide hands-on care without being in the hospital.”
The appellate panel seemed skeptical of Ferrara’s argument during his presentation. Circuit Judge Susan L. Carney said that with the Delta variant being more contagious, “the circumstances from a public health perspective look to me to be quite different than they were in April and May of 2020.”
Ferrara agreed that the Delta variant is highly communicable, but he also pointed out that federal health officials acknowledge the vaccines themselves do not prevent transmission.
That got Circuit Judge Robert D. Sack to talk about risk.
“It’s all a question of degree and risk,” he said. “That’s the way to look at it, I think. Which course has the greater risk and which one has the lesser risk, and it seems to me that the state is perfectly entitled under its police powers to make those determinations.”
The case was combined with another group of health care workers who also sued the state for infringing on their beliefs.
Carney said the panel will make a decision on the state’s appeal at a later time.
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