New York’s attorney general this week asked a federal appeals court to overturn an order that’s blocking the state’s COVID-19 vaccine mandate for health care workers.
U.S. District Judge David Hurd, a Clinton nominee, blocked the statewide mandate last week, ruling that the state officials named as defendants did not adequately explain why workers were denied religious exemptions.
The order in its original form said both medical and religious exemptions would be granted but the Public Health and Health Planning Council’s adoption removed the latter form in its emergency rule that superseded a previous vaccination mandate.
“This intentional change in language is the kind of ‘religious gerrymander’ that triggers heightened scrutiny,” Hurd wrote, granting a request from plaintiffs, 17 health care workers who sued over the order, to impose a preliminary injunction against it.
But New York Attorney General Letitia James, a Democrat, argued in the new filing that the emergency vaccination order barely recognized medical exemptions and is thus similar to pre-existing rules that require health care workers be vaccinated against measles and rubella.
“The rule contains only a single exception to its requirements: a narrow medical exemption that is strictly limited in duration and scope,” James wrote in the 137-page appeal.
That means the rule should be upheld under judicial precedence that recognizes religious exemptions are not required by the U.S. Constitution, James asserted.
Hurd cited a 2020 Supreme Court ruling that struck down a New York order limiting attendance at houses of worship in finding defendants did not explain why they removed the religious exemption piece between the original health order and the emergency rule but James said that doesn’t apply because broad medical exemptions aren’t being allowed.
“Contrary to the district court’s conclusion, the presence of a narrow medical exemption does not preclude the emergency rule from being generally applicable for purposes of a Free Exercise claim. A policy’s provision of a secular but not religious exemption triggers heightened scrutiny only (a) when the secular exemption would undermine the purpose of the underlying policy to at least the same degree as any religious exemption, or (b) when a government decisionmaker has broad discretion to extend an individualized exemption to claims of religious hardship but chooses not to,” James wrote to the appeals court.
“Neither circumstance applies here.”
Attorneys representing the plaintiffs declined to respond. A spokesman told The Epoch Times in an email they’re preparing a reply brief.
Oral arguments in the case are expected to take place on Oct. 27, according to the court docket.
Hurd’s order remains in effect, pending a ruling from the appeals court. Hurd wrote in his order that he recognized he may not have the final word in the case.
“Because the issues in dispute are of exceptional importance to the health and the religious freedoms of our citizens, an appeal may very well be appropriate,” he said.