Gorsuch cites religious liberty as Supreme Court allows New York vaccine mandate

Washington, D.C. Newsroom, Dec 14, 2021 / 15:15 pm

In an order that drew a sharply worded dissent by Justice Neil M. Gorsuch, the U.S. Supreme Court on Monday declined to block New York’s COVID-19 vaccination requirement, which allows exemptions for medical but not religious reasons.

Gorsuch said the ruling violates the plaintiffs’ religious liberty rights guaranteed by the First Amendment.

“The Free Exercise Clause protects not only the right to hold unpopular religious beliefs inwardly and secretly. It protects the right to live out those beliefs publicly in ‘the performance of (or abstention from) physical acts,’” Gorsuch wrote in his 14-page dissent.

“Today, we do not just fail the applicants,” he wrote. “We fail ourselves.”

Two groups of health care workers, several of them Catholics, filed emergency petitions asking the court to intervene. The court decided 6 to 3 to reject the requests. 

Three conservatives — Chief Justice John G. Roberts Jr. and Justices Amy Coney Barrett and Brett M. Kavanaugh — joined liberal justices Stephen G. Breyer, Elena Kagan, and Sonia Sotomayor in the majority, which did not issue an explanation.

Conservative Justice Samuel A. Alito Jr. joined Gorsuch in his dissent. Justice Clarence Thomas, another conservative, agreed that he would have blocked the mandate, without specifying why.

The court’s response to New York’s vaccination requirement comes after the court refused in October to block a similar mandate for health workers in Maine.

“Six weeks ago, this Court refused relief in a case involving Maine’s healthcare workers,” Gorsuch wrote. “Today, the Court repeats the mistake by turning away New York’s doctors and nurses.”

While those who cite medical reasons are exempt from the mandate, “no comparable exemption exists for individuals whose sincere religious beliefs prevent them from taking one of the currently available vaccines,” Gorsuch noted.

New York Gov. Kathy C. Hochul issued the mandate on Aug. 26 and the requirement took effect approximately a month later. The state estimates that about 4 percent of its health care workforce — some 37,000 workers — have left their jobs because of the requirement, the New York Times reported. In response, Hochul has called on the National Guard to help out in  short-staffed nursing homes.

Health care workers challenging the mandate in court on religious grounds had until Nov. 22 to get vaccinated, go on leave, or resign, the Times reported.

In his dissent, Gorsuch repeatedly criticized how Hochul, who identifies as Catholic, has handled the mandate.

“The new Governor announced that the decision to eliminate the exemption was ‘intentiona[l]’ and justified because no ‘organized religion’ sought it and individuals who did were not ‘listening to God and what God wants,’” he wrote. “Now, thousands of New York healthcare workers face the loss of their jobs and eligibility for unemployment benefits.”

“Twenty of them have filed suit arguing that the State’s conduct violates the First Amendment and asking us to enjoin the enforcement of the mandate against them until this Court can decide their petition for certiorari,” he added of their plea to the Supreme Court. “Respectfully, I believe they deserve that relief.”

Gorsuch shared the stories of two Catholic doctors who objected to the mandate.

“These applicants are not ‘anti-vaxxers’ who object to all vaccines,” Gorsuch urged. “Instead, the applicants explain, they cannot receive a COVID–19 vaccine because their religion teaches them to oppose abortion in any form, and because each of the currently available vaccines has depended upon abortion-derived fetal cell lines in its production or testing.”

The Catechism of the Catholic Church, which summarizes Church teaching, considers abortion a “crime against human life.” 

“Human life must be respected and protected absolutely from the moment of conception,” the catechism reads. “From the first moment of his existence, a human being must be recognized as having the rights of a person – among which is the inviolable right of every innocent being to life.”

At the same time, Pope Francis encourages Catholics to consider the COVID-19 vaccine.

“Getting the vaccines that are authorized by the respective authorities is an act of love,” he said in August. “I pray to God that each one of us can make his or her own small gesture of love, no matter  how small, love is always grand."

Last year, the Congregation for the Doctrine of the Faith issued a “Note on the morality of using some anti-Covid-19 vaccines.”

The note finds that “when ethically irreproachable Covid-19 vaccines are not available . . . it is morally acceptable to receive Covid-19 vaccines that have used cell lines from aborted fetuses in their research and production process.”

“The fundamental reason for considering the use of these vaccines morally licit is that the kind of cooperation in evil (passive material cooperation) in the procured abortion from which these cell lines originate is, on the part of those making use of the resulting vaccines, remote,” the note explains.

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The note also cautions against mandates while emphasizing that Catholics must consider the common good in their decision.

“At the same time, practical reason makes evident that vaccination is not, as a rule, a moral obligation and that, therefore, it must be voluntary,” the note continues.