The Supreme Court turned away two emergency requests Monday from health care workers, doctors and nurses in New York to block the state’s vaccine mandate.
Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissented.
The dispute arose when three nurses and a group called We the Patriots USA, Inc, challenged the mandate, arguing that it allowed exemptions for those with medical objections but not for people with religious objections.
The rule, which is currently in effect, covers workers in hospitals and nursing homes, home health agencies, adult centers as well as hospices. Several doctors who say they have treated many patients with Covid filed a separate request with the justices.
So far, the justices have allowed state mandates from Indiana, Maine and New York to go forward suggesting a tolerance for state efforts to fight Covid-19 in the midst of a surge of the Delta variant.
Gorsuch wrote that he would have granted the requests, noting that the doctors and the nurses “have gone to great lengths to serve their patients” during the pandemic.
He said that two of the doctors are not “anti-vaxxers who object to all vaccines,” but that the sincerity of their religious beliefs should be respected. Gorsuch noted that only recently had New York indicated that religious exemptions would not be accepted and he stressed the fact that the state did accommodate those with non-religious objections to the mandate.
“Even if one were to read the State’s actions as something other than signs of animus, they leave little doubt that the re vised mandate was specifically directed at the applicants’ unorthodox religious beliefs and practices,” Gorsuch said wrote.
He said that most every other state “has found that it can satisfy its COVID-19 public health goals without coercing religious objectors to accept a vaccine.”
Some of the health care workers said they objected to the vaccines because of the 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 said they are “devout Christians” who “object to deriving any benefit – no matter how remote – from a process involving abortion.”
Gorsuch noted the fact that the Pope has encouraged vaccination. He asked, rhetorically, “if so many other religious persons are willing to be vaccinated, it is tempting enough to ask: What can be so wrong with coercing the few who are not?”
Answering his own question, Gorsuch said, “We should know the costs that come when this Court stands silent as majorities invade the constitutional rights of the unpopular and unorthodox.”
New York Attorney General Letitia James urged the Supreme Court to deny the request, 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.”
In briefs, 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.
This story has been updated with additional details.