Amicus Briefs
Dr. A v. Hochul
CASE SUMMARY
NCLA filed an amicus brief encouraging the U.S. Supreme Court to grant review and hold that New York’s administrative Covid-19 vaccine mandate for healthcare workers denied the free exercise of religion to the Petitioners by allowing secular exemptions while denying religious ones. New York’s policy was inherently unequal, prejudiced, and violative of the Free Exercise Clause of the First Amendment. Although the discriminatory administrative policy at issue in this case came with blatantly prejudicial attitudes expressed by Governor Hochul, the case provided a vehicle for the Court to address the inherent inequality of all administrative rulemaking for many religious Americans.
On August 18, 2021, the New York Department of Health proposed an emergency Covid-19 vaccination mandate for healthcare workers. The original proposal included mandatory exemptions for those with either religious or medical reasons for not taking the vaccine. In a shocking reversal, three days later, the State’s Public Health and Health Planning Council—an advisory committee headed by the Commissioner of the Department of Health—proposed a revised mandate with no religious exemption.
Governor Hochul explained that a religious exemption was not needed because true believers would get vaccinated. She acknowledged that “we left off [the religious exemption] in our regulations intentionally.” She provided no scientific or legal basis for this intentional omission, explaining instead that there was no “sanctioned religious exemption from any organized religion” and that organized religions were “encouraging the opposite.”
An essential element of republican government is to have policies adopted via laws made by a representative legislature that is elected by, and thus responsive to, the people, including religious minorities. Instead, New York imposed its healthcare worker vaccine policy through an administrative body that was unelected and thus unresponsive, and even institutionally prejudiced against orthodox or traditional religion—in this case led by a governor expressly prejudiced against petitioners’ religious views.
New York’s health bureaucrats had already deemed it reasonable and risk-justified to allow unvaccinated healthcare workers with non-religious, medical objections to the vaccine to work in person and treat patients, provided such workers followed certain test-and-mask requirements. But they forbade the same test-and-mask accommodation for healthcare workers with religious objections to the vaccine. There was no compelling reason for this unequal treatment because tested and masked unvaccinated workers presented the same (low) risk of carrying and transmitting Covid-19 regardless of why they were unvaccinated. New York’s Department of Health even allowed healthcare workers infected with Covid-19 and actively exhibiting symptoms to return to work in person and treat patients, provided such infected workers were vaccinated and wear N95 or KN95 masks.