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Appendix of Exhibits — Dr. A v. Hochul
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An Appendix of Exhibits filed in the Supreme Court of the United States in Dr. A., Nurse A., et al. v. Kathy Hochul, Governor of the State of New York, Dr. Howard A. Zucker, Commissioner of the New York State Department of Health, and Letitia James, Attorney General of the State of New York, all sued in their official capacities. The cover lists counsel from The Becket Fund for Religious Liberty and the Thomas More Society for the applicants. The table of contents lists eleven exhibits, among them a Second Circuit order of October 29, 2021 and opinion of November 4, 2021, orders and an opinion of the U.S. District Court for the Northern District of New York dated September 14, October 12 and November 5, 2021, the First Amendment, 42 U.S.C. 2000e-7, and New York Department of Health documents of August 18 and August 26, 2021.
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No. 21A____
In the Supreme Court of the United States
DR. A., NURSE A., DR. C., NURSE D., DR. F., DR. G., THERAPIST I., DR. J.,
NURSE J., DR. M., NURSE N., DR. O., DR. P., TECHNOLOGIST P., DR. S.,
NURSE S., PHYSICIAN LIAISON X., ET AL.,
Applicants,
v.
KATHY HOCHUL, GOVERNOR OF THE STATE OF NEW YORK, IN HER OFFICIAL CAPACITY,
DR. HOWARD A. ZUCKER, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF
HEALTH, IN HIS OFFICIAL CAPACITY, LETITIA JAMES, ATTORNEY GENERAL OF THE STATE
OF NEW YORK, IN HER OFFICIAL CAPACITY,
Respondents.
APPENDIX OF EXHIBITS
MARK RIENZI THOMAS BREJCHA
DANIEL BLOMBERG Counsel of Record
DIANA VERM THOMSON STEPHEN M. CRAMPTON
ADÈLE KEIM THOMAS MORE SOCIETY
KAYLA A. TONEY 309 West Washington Street, Suite 1250
JAMES J. KIM Chicago, IL 60606
THE BECKET FUND FOR RELIGIOUS tbrejcha@thomasmoresociety.org
LIBERTY CHRISTOPHER A. FERRARA
1919 Pennsylvania Ave. NW, Suite 400 THOMAS MORE SOCIETY
Washington, D.C. 20006 148-29 Cross Island Parkway
Whitestone, Queens NY 11357
(202) 955-0095
(718) 357-1040
mrienzi@becketlaw.org
MICHAEL MCHALE
THOMAS MORE SOCIETY
10506 Burt Circle, Suite 110
Omaha, NE 68114
Counsel for Applicants
TABLE OF CONTENTS
Exhibit 1, Appx.1 ............................................ October 29, 2021: Second Circuit Order
Exhibit 2, Appx.4 ....................................... November 4, 2021: Second Circuit Opinion
Exhibit 3, Appx.55 ............................................... September 14, 2021: N.D.N.Y. Order
Exhibit 4, Appx.61 ................................................ October 12, 2021: N.D.N.Y. Opinion
Exhibit 5, Appx.89 .............. November 5, 2021: N.D.N.Y. Order Vacating Prelim. Inj.
Exhibit 6, Appx.94 .............................................................................. First Amendment
Exhibit 7, Appx.96 .............................................................................. 42 U.S.C. 2000e-7
Exhibit 8, Appx.98 ................ August 18, 2021: N.Y. DOH Order for Summary Action
Exhibit 9, Appx.106 ......................... August 26, 2021: N.Y. DOH Amendment to Rule
Exhibit 10, Appx.132 ..................... September 13, 2021: N.D.N.Y. Verified Complaint
Exhibit 11, Appx.200 ...................... September 17, 2021: Thomas More Society Letter
2
EXHIBIT 1
Appx.1
Case 21-2566, Document 58, 10/29/2021, 3202727, Page1 of 2
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a Stated Term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 29th day of October, two thousand twenty-one.
Before: John M. Walker, Jr.,
Robert D. Sack,
Susan L. Carney,
Circuit Judges.
We The Patriots USA, Inc., Diane Bono, Michelle
Melendez, Michelle Synakowski,
ORDER
Plaintiffs-Appellants,
v. No. 21-2179
Kathleen Hochul, Howard A. Zucker, M.D.,
Defendants-Appellees.
Dr. A., Nurse A., Dr. C., Nurse D., Dr. F., Dr. G.,
Therapist I., Dr. J., Nurse J., Dr. M., Nurse N., Dr. O., Dr.
P., Technologist P., Dr. S., Nurse S., Physician Liaison X.,
Plaintiffs-Appellees,
v.
No. 21-2566
Kathy Hochul, Governor of the State of New York, in her
official capacity, Dr. Howard A. Zucker, Commissioner of the
New York State Department of Health, in his official
capacity, Letitia James, Attorney General of the State of New
York, in her official capacity,
Defendants-Appellants.
Appx.2
CERTIFIED COPY ISSUED ON 10/29/2021
Case 21-2566, Document 58, 10/29/2021, 3202727, Page2 of 2
In No. 21-2179, Plaintiffs We The Patriots USA, Inc. et al., appeal from an order of
the United States District Court for the Eastern District of New York denying their motion
for a preliminarily injunction enjoining the State from enforcing N.Y. Comp. Codes R. &
Regs. tit. 10, § 2.61 (August 26, 2021). Upon due consideration, it is hereby ORDERED,
ADJUDGED, and DECREED that this Court’s September 30, 2021 order granting a
temporary injunction pending appeal is VACATED, the district court’s order denying the
motion for a preliminary injunction is AFFIRMED, and the case is REMANDED for
further proceedings consistent with this Order and the forthcoming opinion of this Court.
In No. 21-2566, the State of New York appeals from an order of the United States
District Court for the Northern District of New York enjoining the State from enforcing
N.Y. Comp. Codes R. & Regs. tit. 10, § 2.61 (August 26, 2021). Upon due consideration, it
is hereby ORDERED, ADJUDGED, and DECREED that the district court’s order is
VACATED and the case is REMANDED for further proceedings consistent with this
Order and the forthcoming opinion of this Court.
The mandate shall issue forthwith for the limited purpose of vacating the injunction
issued by the District Court for the Northern District of New York. An opinion in both No.
21-2179 and No. 21-2566 will follow expeditiously.
For the Court:
Catherine O’Hagan Wolfe, Clerk of Court
Appx.3
EXHIBIT 2
Appx.4
Case 21-2566, Document 74, 11/04/2021, 3206107, Page1 of 50
21-2179; 21-2566
We The Patriots USA, Inc. v. Hochul; Dr. A. v. Hochul
In the
United States Court of Appeals
For the Second Circuit
______________
August Term, 2021
(Argued: October 27, 2021 Decided: November 4, 2021)
Docket No. 21-2179
______________
WE THE PATRIOTS USA, INC., DIANE BONO, MICHELLE MELENDEZ,
MICHELLE SYNAKOWSKI,
Plaintiffs-Appellants,
–v.–
KATHLEEN HOCHUL, HOWARD A. ZUCKER, M.D.,
Defendants-Appellees.
___________________________
Docket No. 21-2566
______________
DR. A., NURSE A., DR. C., NURSE D., DR. F., DR. G., THERAPIST I.,
DR. J., NURSE J., DR. M., NURSE N., DR. O., DR. P., TECHNOLOGIST P., DR. S.,
NURSE S., PHYSICIAN LIAISON X.,
Plaintiffs-Appellees,
–v.–
KATHY HOCHUL, GOVERNOR OF THE STATE OF NEW YORK, IN HER OFFICIAL
CAPACITY, DR. HOWARD A. ZUCKER, COMMISSIONER OF THE NEW YORK STATE
Appx.5
CERTIFIED COPY ISSUED ON 11/04/2021
Case 21-2566, Document 74, 11/04/2021, 3206107, Page2 of 50
DEPARTMENT OF HEALTH, IN HIS OFFICIAL CAPACITY, LETITIA JAMES,
ATTORNEY GENERAL OF THE STATE OF NEW YORK, IN HER OFFICIAL CAPACITY,
Defendants-Appellants.
B e f o r e:
WALKER, SACK, and CARNEY, Circuit Judges.
______________
In these two cases on appeal, district courts in New York State considered
applications for preliminary injunctive relief that would restrain the State from
enforcing its emergency rule requiring healthcare facilities to ensure that certain
employees are vaccinated against COVID-19. See 10 N.Y.C.R.R. § 2.61 (Aug. 26, 2021)
(“Section 2.61”). The State issued Section 2.61 in response to rapidly increasing infection
rates related to the Delta variant of the virus. Section 2.61 contains an exemption for
employees who are unable to be safely vaccinated due to pre-existing medical
conditions, but does not contain an exemption for those who object to this vaccination
on religious grounds. Plaintiffs, individual healthcare workers who object to receiving
the vaccine because of their religious beliefs, as well as a membership organization,
filed complaints and motions for preliminary injunctive relief, asserting that Section
2.61 violates their rights under the First Amendment, the Fourteenth Amendment, and
the Supremacy Clause. In We The Patriots, filed in the U.S. District Court for the Eastern
District of New York, the district court (Kuntz, J.) denied the motion without opinion. In
Dr. A., filed in the U.S. District Court for the Northern District of New York, the district
court (Hurd, J.) granted the motion, deciding that Plaintiffs had established that Section
2.61 was likely neither neutral towards religion nor generally applicable, triggering
strict scrutiny under the First Amendment’s Free Exercise Clause, and that the State had
failed to establish that Section 2.61 was likely narrowly tailored to serve a compelling
government interest under strict scrutiny review. The district court in Dr. A. also
concluded that Section 2.61 was likely preempted by Title VII’s protection for
employees who require religious accommodations, and thus ran afoul of the Supremacy
Clause.
On appeal, focusing on the requirements for the grant of a preliminary
injunction, we conclude that Plaintiffs in both cases have failed to establish a likelihood
2
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Case 21-2566, Document 74, 11/04/2021, 3206107, Page3 of 50
of success on any of their claims, and thus the Dr. A. district court’s issuance of a
preliminary injunction was in error. As to Plaintiffs’ Free Exercise claims, we conclude
that Plaintiffs have not shown that they are likely to succeed in establishing (1) that
Section 2.61 is not a neutral law of general applicability, or (2) that—in the resulting
inquiry—Section 2.61 does not satisfy rational basis review. Next, we determine that
Plaintiffs have not demonstrated a likelihood of success on their Supremacy Clause
claim: it appears to us fully possible for employers to comply with both Section 2.61 and
Title VII. Finally, we decide that Plaintiffs are not likely to succeed on their claims that
Section 2.61 contravenes the Fourteenth Amendment. The order of the U.S. District
Court for the Eastern District of New York is therefore AFFIRMED, the order of the U.S.
District Court for the Northern District of New York is REVERSED, and the preliminary
injunction entered by that court is VACATED. These tandem cases are REMANDED to
their respective district courts for further proceedings consistent with the Order entered
by this Court on October 29, 2021, and this Opinion.
______________
CAMERON L. ATKINSON (Norman A. Pattis, Earl A. Voss, on
the brief), Pattis & Smith, LLC, New Haven, CT, for
Plaintiffs-Appellants We The Patriots USA, Inc. et al. (in
No. 21-2179).
STEVEN C. WU, Deputy Solicitor General (Barbara D.
Underwood, Mark S. Grube, on the brief) for Letitia
James, Attorney General for the State of New York,
New York, NY, for Defendants-Appellants (in No. 21-
2566) and Defendants-Appellees (in No. 21-2179) Kathleen
Hochul et al.
CHRISTOPHER A. FERRARA (Michael McHale, Stephen M.
Crampton, on the brief), Thomas More Society,
Chicago, IL, for Plaintiffs-Appellees Dr. A. et al. (in No.
21-2566).
Alex J. Luchenister, Richard B. Katskee, Americans United
for Separation of Church and State, Washington, D.C.;
Daniel Mach, Heather L. Weaver, Lindsey Kaley,
3
Appx.7
Case 21-2566, Document 74, 11/04/2021, 3206107, Page4 of 50
American Civil Liberties Union Foundation,
Washington, D.C. & New York, NY; Christopher
Dunn, Beth Haroules, Arthur Eisenberg, Amy Belsher,
New York Civil Liberties Union Foundation, New
York, NY, for Amici Curiae (in No. 21-2179) Americans
United for Separation of Church and State, American Civil
Liberties Union, New York Civil Liberties Union, Central
Conference of American Rabbis, Global Justice Institute,
Metropolitan Community Churches, Men of Reform
Judaism, Methodist Federation for Social Action, Muslim
Advocates, National Council of Jewish Women,
Reconstructionist Rabbinical Association, Union for
Reform Judaism, and Women of Reform Judaism.
Mark D. Harris, Shiloh Rainwater, Proskauer Rose LLP, New
York, NY, for Amicus Curiae (in No. 21-2179) Greater
New York Hospital Association.
______________
PER CURIAM:
In these two cases on appeal, which we consider in tandem, federal district
courts in New York State considered applications for preliminary injunctive relief that
would restrain the State from enforcing its emergency rule requiring healthcare facilities
to ensure that certain employees are vaccinated against COVID-19. See 10 N.Y.C.R.R.
§ 2.61 (Aug. 26, 2021) (“Prevention of COVID-19 transmission by covered entities”)
(“Section 2.61” or “the Rule”). The State issued the Rule in response to rapidly
increasing infection rates related to the Delta variant of the SARS-CoV-2 virus, a virus
that has caused widespread suffering in the State, country, and world since early 2020.
The State described the Rule’s purpose as primarily to preserve the health of healthcare
workers, and from that narrow purpose, more broadly, to keep patients and the public
safe from COVID-19. The Rule establishes a medical exemption to the vaccination
requirement, but—consistent with New York’s prior vaccination requirements for
4
Appx.8
Case 21-2566, Document 74, 11/04/2021, 3206107, Page5 of 50
healthcare workers—does not include an exemption based on religious belief. The Rule
permits, but does not require, employers to make other accommodations for individuals
who choose not to be vaccinated based on their sincere religious beliefs.
The moving parties—primarily healthcare workers allegedly affected by the
Rule—challenge the Rule’s omission of a religious exemption by asserting claims under
the First Amendment, the Supremacy Clause, and the Fourteenth Amendment. Both
groups of Plaintiffs moved to enjoin enforcement of the Rule. One district court granted
the preliminary relief requested, enjoining the Rule insofar as it prevented healthcare
workers from being eligible for an exemption based on religious belief; the other denied
it. See Dr. A. v. Hochul, No. 21-cv-1009, 2021 WL 4734404 (N.D.N.Y. Oct. 12, 2021)
(granting preliminary injunction) (“Dr. A.”); We The Patriots USA, Inc. v. Hochul, No. 21-
cv-4954 (E.D.N.Y. Sept. 12, 2021) (denying preliminary injunction) (“We The Patriots” or
“WTP”).
The individual plaintiffs in Dr. A. are nurses, doctors, and other personnel
employed by healthcare facilities in New York State; in We The Patriots, they are three
nurses similarly employed and a related nonprofit organization. All individual
plaintiffs aver that to receive any one of the three currently available vaccines against
COVID-19 (Pfizer-BioNTech, Moderna, and Johnson & Johnson) would violate their
religious beliefs because those vaccines were developed or produced using cell lines
derived from cells obtained from voluntarily aborted fetuses. They assert that their
employers have threatened them with adverse employment consequences if they refuse
to be vaccinated.
Plaintiffs argue, and the district court in Dr. A. held, that they are likely to
succeed in establishing that Section 2.61 violates their rights under the Free Exercise
Clause of the First Amendment and under the Supremacy Clause. As to the Free
Exercise Clause, Plaintiffs submit that because the State has afforded a medical
5
Appx.9
Case 21-2566, Document 74, 11/04/2021, 3206107, Page6 of 50
exemption to its requirement, the Free Exercise Clause requires the State also to afford a
religious exemption. With respect to the Supremacy Clause, the Dr. A. Plaintiffs argue
that the non-discrimination obligations placed on employers by Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) preempt the State’s vaccination
Rule. As a third basis for relief, the WTP Plaintiffs allege that the Rule infringes their
rights to privacy and bodily integrity under the Fourteenth Amendment. Under the
familiar standards for a preliminary injunction that Plaintiffs must meet to obtain such
relief, Plaintiffs allege that, in addition to showing a likelihood of success on the merits,
they will suffer irreparable harm absent immediate relief and that the balance of the
equities and the public interest lie in their favor.
The State resists, contending primarily that Section 2.61 is a neutral provision of
general applicability to those covered by the Rule; that the Rule serves its goal and
compelling need to preserve the health of healthcare workers; that the medical and
religious exemptions would not be comparable for purposes of the Free Exercise Clause
analysis required by Employment Division, Department of Human Resources of Oregon v.
Smith, 494 U.S. 872 (1990), and its progeny; and that Plaintiffs have not shown a
likelihood of success on the merits on any of their claims or otherwise satisfied the
prerequisites for entry of the exceptional relief of a preliminary injunction at this phase
of the litigation.
Following oral argument, on October 29, 2021, this Court entered an Order
disposing of the appeals and advising that an Opinion would follow. This Opinion
explains the basis for that Order.
As to Plaintiffs’ Free Exercise claim, we conclude that Plaintiffs have not met
their burden to show that they are likely to succeed in establishing (1) that Section 2.61
is not a neutral law of general applicability under Smith, or (2) that—in the resulting
inquiry—Section 2.61 does not satisfy rational basis review. Next, we determine that
6
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Case 21-2566, Document 74, 11/04/2021, 3206107, Page7 of 50
Plaintiffs have not demonstrated a likelihood of success on their Supremacy Clause
claim on the record before us, as Plaintiffs have not shown that it would likely be
impossible for employers to comply with both Section 2.61 and Title VII. Finally, we
decide that Plaintiffs are not likely to succeed on their claim that the Rule contravenes
the Fourteenth Amendment.
In light of these conclusions and of our further assessment of the irreparability of
the harm Plaintiffs allege, the balance of the hardships, and the public interest in
enforcing or not enforcing the Rule, we AFFIRM the order of the United States District
Court for the Eastern District of New York denying the motion for a preliminary
injunction in We The Patriots; and we REVERSE the order of the United States District
Court for the Northern District of New York granting Plaintiffs’ motion for the same
relief in Dr. A. and VACATE the related preliminary injunction entered by that court.
Finally, we REMAND both cases to their respective district courts for further
proceedings consistent with our October 29, 2021 Order, and this Opinion. We stress
that we do not now decide the ultimate merits of Plaintiffs’ legal claims or of the State’s
defenses; rather, we make a limited determination with respect to preliminary relief
based on the limited factual record presently before this Court.
BACKGROUND
I. New York’s Emergency Rule
On August 26, 2021, New York’s Department of Health adopted an emergency
rule directing hospitals, nursing homes, hospices, adult care facilities, and other
identified healthcare entities to “continuously require” certain of their employees to be
fully vaccinated against COVID-19 beginning on September 27, 2021, for “general
hospitals” and nursing homes, and on October 7, 2021, for all other “covered entities” as
7
Appx.11
Case 21-2566, Document 74, 11/04/2021, 3206107, Page8 of 50
defined in the Rule. 10 N.Y.C.R.R. § 2.61. 1 The vaccine requirement applies not to all
employees, but only to those covered by the Rule’s definition of “personnel”: those
employees, staff members, and volunteers “who engage in activities such that if they
were infected with COVID-19, they could potentially expose other covered personnel,
patients or residents to the disease.” Id. § 2.61(a)(2).
The Rule was issued by the State’s Public Health and Health Planning Council, a
group of 25 healthcare professionals, including the Commissioner of Health, that state
law charges with issuing regulations “affecting the security of life or health or the
preservation and improvement of public health,” including those addressing the control
of communicable diseases. N.Y. Pub. Health L. § 225(4), (5).
As required by New York law, the notice of emergency rulemaking included the
Council’s findings and a Regulatory Impact Statement (the “Statement”). See NYS
Admin. Proc. Act § 202(6). The Statement explained that the Rule responded to the
“significant public health threat” caused by the increasing circulation of the Delta
variant: “Since early July, cases have risen 10-fold, and 95 percent of the sequenced
recent positives in New York State were the Delta variant.” Dr. A. Sp. App’x at 39. It
also referenced data purporting to show “that unvaccinated individuals are
approximately 5 times as likely to be diagnosed with COVID-19 compared to
vaccinated individuals” and that “[t]hose who are unvaccinated have over 11 times the
risk of being hospitalized with COVID-19.” Id. It described vaccination as critical to
controlling the spread of the disease at healthcare facilities and in congregate care
settings, which “pose increased challenges and urgency for controlling the spread of
this disease because of [their] vulnerable patient and resident populations,”
determining that “[u]nvaccinated personnel in such settings have an unacceptably high
1 The complete text of Section 2.61 is provided in an Appendix to this Opinion.
8
Appx.12
Case 21-2566, Document 74, 11/04/2021, 3206107, Page9 of 50
risk of both acquiring COVID-19 and transmitting the virus to colleagues and/or
vulnerable patients or residents, exacerbating staffing shortages, and causing
unacceptably high risk of complications.” Id. As an emergency rule, Section 2.61 is in
effect for a maximum of 90 days, expiring on November 23, 2021, unless renewed. See
id. at 38; NYS Admin. Proc. Act § 202(6)(b).
Section 2.61 exempts from the vaccination requirement “personnel” for whom
“immunization with COVID-19 vaccine is detrimental to [their] health . . . , based upon
a pre-existing health condition” as more specifically defined and limited by the Rule. 10
N.Y.C.R.R. § 2.61(d)(1). 2 The medical exemption applies “only until such immunization
is found no longer to be detrimental to [their] health.” Id. It must be supported with a
certification by a licensed physician or certified nurse practitioner issued in accordance
2 The full text of this medical exemption under Section 2.61(d)(1) reads as follows:
(1) Medical exemption. If any licensed physician or certified nurse
practitioner certifies that immunization with COVID-19 vaccine is
detrimental to the health of member of a covered entity’s personnel, based
upon a pre-existing health condition, the requirements of this section relating
to COVID-19 immunization shall be inapplicable only until such
immunization is found no longer to be detrimental to such personnel
member’s health. The nature and duration of the medical exemption must be
stated in the personnel employment medical record, or other appropriate
record, and must be in accordance with generally accepted medical
standards, (see, for example, the recommendations of the Advisory
Committee on Immunization Practices of the U.S. Department of Health and
Human Services), and any reasonable accommodation may be granted and
must likewise be documented in such record. Covered entities shall
document medical exemptions in personnel records or other appropriate
records in accordance with applicable privacy laws by: (i) September 27, 2021
for general hospitals and nursing homes; and (ii) October 7, 2021 for all other
covered entities. For all covered entities, documentation must occur
continuously, as needed, following the initial dates for compliance specified
herein, including documentation of any reasonable accommodation therefor.
10 N.Y.C.R.R. § 2.61(d)(1).
9
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with generally accepted medical standards, including recommendations of the
Advisory Committee on Immunization Practices (“ACIP”) of the U.S. Department of
Health and Human Services. Id.; see also N.Y. State Department of Health, Frequently
Asked Questions (FAQs) Regarding the August 26, 2021 – Prevention of COVID-19
Transmission by Covered Entities Emergency Regulation, https://coronavirus.health.ny.gov/
system/files/documents/2021/09/faqs-for-10-nycrr-section-2.61-9-20-21.pdf (last visited
November 2, 2021) (“FAQs”). Section 2.61 contains no “exemption” for personnel who
oppose vaccination on religious or any other grounds not covered by the medical
exemption; however, as we discuss below, the Rule does not prohibit employers from
providing religious objectors with accommodations.
On August 18, 2021, eight days before the Council promulgated Section 2.61, New
York State Commissioner of Health Dr. Howard A. Zucker, acting alone, had issued an
“Order for Summary Action” (“the August 18 Order” or “the Order”) under the
authority vested in him by New York Public Health Law § 16. See Dr. A. Sp. App’x at
41–47. Section 16 permits the Commissioner to issue a short-term order—effective for a
maximum of 15 days—if he identifies a condition that in his view constitutes a “danger
to the health of the people.” N.Y. Pub. Health Law § 16. After making findings about
the dangers of COVID-19, the Order similarly required certain healthcare facilities to
ensure that certain personnel were fully vaccinated against COVID-19 by September 27,
2021, but differed from Section 2.61, which superseded it, in several respects. Most
relevant here, the Order included a religious exemption for personnel who “hold a
genuine and sincere religious belief contrary to the practice of immunization.” Dr. A.
Sp. App’x at 45–46. In addition, the Order could be effective for only a very brief period
of time—for up to 15 days—whereas the Rule could be in effect for up to 90 days,
subject to extensions. Further, the Order applied only to “general hospital[s]” and
nursing homes; Section 2.61 applies more broadly, to all hospitals, nursing homes,
10
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diagnostic and treatment centers, home healthcare agencies and similar programs,
hospices, and adult care facilities. Id. at 43; 10 N.Y.C.R.R. § 2.61(a)(1).
In affidavits appended to its briefing to this Court and filed in other pending
proceedings, 3 the State has provided preliminary vaccination data from the months of
August through October 2021. It reflects a significant increase in vaccination rates
among covered healthcare personnel that occurred after the Rule’s effective date on
September 27 (even though the Rule was subject to the temporary restraining order and
later injunction issued in Dr. A.). As of August 24, the State’s declarant reported, 71% of
workers at nursing homes and 77% of workers at adult care facilities had received at
least one dose of the vaccine; 77% of workers at hospitals were fully vaccinated. See
WTP Appellees’ Add. at 14–15 (Decl. of Elizabeth Rausch-Phung). As of October 19,
97.4% of workers at nursing homes and 96.7% of workers at adult care facilities had
received at least one dose of the vaccine, and 91.4% of workers at hospitals were fully
vaccinated. See Serafin v. New York State Dep’t of Health, Index No. 908296-21, Doc. Nos.
56. (Decl. of Valerie A. Deetz), 57 (Decl. of Dorothy Persico) (Sup. Ct. Albany County
Oct. 20, 2021). Also as of October 19, between 0.4% and 0.5% of workers at each facility
3 We may take judicial notice of the existence of affidavits filed in another court. See Glob.
Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006). In addition, our
Court has ruled that courts may consider hearsay evidence such as affidavits when determining
whether to grant a preliminary injunction. See Mullins v. City of New York, 626 F.3d 47, 52 (2d
Cir. 2010); see also Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (observing that preliminary
injunctive determinations may be based on “procedures that are less formal and evidence that is
less complete than in a trial on the merits”). Thus, we consider the State’s data submitted in
affidavits filed in other courts. Although this data was not before the district court in WTP—and
therefore Plaintiffs have not had an opportunity to contest its accuracy before the district
court—they have not raised such a concern in their reply brief in WTP or at oral argument, nor
have they challenged this Court’s ability to consider the State’s submissions. More broadly,
Plaintiffs do not appear to contest the State’s assertion derived from this data that religious
exemptions are more common than medical exemptions, but instead consider this fact
irrelevant.
11
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Case 21-2566, Document 74, 11/04/2021, 3206107, Page12 of 50
type were medically ineligible to receive the COVID-19 vaccine, whereas 1.9% of
workers at nursing homes and adult care facilities and 1.3% of workers at hospitals
claimed “other” exemptions, which the State describes as reflecting religious
exemptions permitted by the injunction entered in Dr. A. Id.
II. The District Court Proceedings
Plaintiffs in We The Patriots are a membership organization and three nurses
working in hospital facilities in New York State. 4 Plaintiffs in Dr. A. are nurses, doctors,
and others employed at healthcare facilities in New York State. In both cases, the
defendants include Governor Kathleen Hochul and Commissioner Zucker; the Dr. A.
Plaintiffs also named New York Attorney General Letitia James as a defendant.
All Plaintiffs assert that they object on religious grounds to receiving the COVID-
19 vaccines as briefly described above. As public health authorities have explained, in
the 1970s and 1980s, cell lines were derived from fetal cells obtained from elective
abortions or miscarriages. 5 These cell lines have since been used in the development of
various vaccines. 6 They were used for testing in the research and development phase of
4 Plaintiff We The Patriots USA, Inc., states that it is a section 501(c)(3) organization that “is
dedicated to promoting constitutional rights and other freedoms through education, outreach,
and public interest litigation, thereby advancing religious freedom, medical freedom, parental
rights, and educational freedom for all.” WTP App’x at 8.
5 See, e.g., Los Angeles County Dep’t of Pub. Health, COVID-19 Vaccine and Fetal Cell Lines (Apr.
20, 2021), http://publichealth.lacounty.gov/media/coronavirus/docs/vaccine/
VaccineDevelopment_FetalCellLines.pdf; Michigan Dep’t of Health & Human Servs., COVID-19
Vaccines & Fetal Cells (Apr. 21, 2021), https://www.michigan.gov/documents/coronavirus/
COVID-19_Vaccines_and_Fetal_Cells_031921_720415_7.pdf; North Dakota Dep’t of Health,
COVID-19 Vaccines & Fetal Cell Lines (Apr. 20, 2021), https://www.health.nd.gov/sites/www/
files/documents/COVID%20Vaccine%20Page/COVID-19_Vaccine_Fetal_Cell_Handout.pdf.
6These cell lines “have been used to create vaccines for diseases such as hepatitis A, rubella, and
rabies. Abortions from which fetal cells were obtained were elective and were not done for the
12
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the mRNA (Pfizer-BioNTech and Moderna) COVID-19 vaccines and in the production
of the Johnson & Johnson COVID-19 vaccine. 7 Plaintiffs assert that, in these
circumstances, receiving any of the three available COVID-19 vaccines would conflict
with their deeply held religious beliefs.
A. We The Patriots USA, Inc. v. Hochul
In We The Patriots, the three individual plaintiffs are registered nurses. Diane
Bono and Michelle Melendez are employed at Syosset Hospital in Syosset, and Michelle
Synakowski is employed at St. Joseph’s Hospital in Syracuse. On September 2, 2021, one
week after the Rule was adopted, Plaintiffs sued Governor Hochul and Commissioner
Zucker in the United States District Court for the Eastern District of New York, alleging
that the Rule violates their First Amendment right to exercise their religion freely. They
also charged that it violates their rights to privacy and “medical freedom,” which they
locate in the First, Fourth, Fifth, and Fourteenth Amendments. They asked the district
purpose of vaccine development.” Los Angeles County Dep’t of Pub. Health, COVID-19 Vaccine
and Fetal Cell Lines, supra note 5.
7 The use of these cell lines was explained in press statements and publicly available research
during the development of the COVID-19 vaccines. See Press Release, Johnson & Johnson,
Johnson & Johnson Announces a Lead Vaccine Candidate for COVID-19; Landmark New
Partnership with U.S. Department of Health & Human Services; and Commitment to Supply
One Billion Vaccines Worldwide for Emergency Pandemic Use (Mar. 30, 2020),
https://www.jnj.com/johnson-johnson-announces-a-lead-vaccine-candidate-for-covid-19-
landmark-new-partnership-with-u-s-department-of-health-human-services-and-commitment-
to-supply-one-billion-vaccines-worldwide-for-emergency-pandemic-use (describing use of
PER.C6 cell line in Johnson & Johnson vaccine); Annette B. Vogel et al., A Prefusion SARS-Cov-2
Spike RNA Vaccine Is Highly Immunogenic and Prevents Lung Infection in Non-human Primates,
bioRxiv (Sept. 8, 2020), https://doi.org/10.1101/2020.09.08.280818 (referencing use of HEK293 cell
line in early testing stages of Pfizer-BioNTech vaccine); Kizzmekia S. Corbett et al., SARS-CoV-2
mRNA Vaccine Design Enabled by Prototype Pathogen Preparedness, 586 Nature 567, 572 (Oct. 22,
2020), https://doi.org/10.1038/s41586-020-2622-0 (referencing use of HEK293 cell line in testing of
Moderna vaccine).
13
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court to declare Section 2.61 unconstitutional and permanently enjoin the State from
enforcing it.
Ten days later, the WTP Plaintiffs moved for a temporary restraining order and a
preliminary injunction immediately enjoining the State from enforcing the Rule. They
argued that immediate relief was essential because Section 2.61 puts them at imminent
risk of losing their jobs if they persist in refusing vaccination. In support of their motion,
they provided letters from Nurse Bono’s and Nurse Melendez’s employer, Northwell
Health, a private entity. 8 In the letter received by Nurse Bono, dated August 31,
Northwell Health advised that her “continued employment will be at risk” if she did
not receive the vaccine by the deadline. WTP App’x 32. In its letter to Nurse Melendez,
dated August 30, Northwell Health wrote only that Nurse Melendez would be required
to undergo weekly PCR testing and would be unable to participate in certain meetings,
gatherings, and events based on her vaccination status. 9
The district court denied Plaintiffs’ motion on September 12, the day it was filed,
without explanation and without ordering or receiving a response from the State.
Plaintiffs timely appealed.
B. Dr. A. v. Hochul
In Dr. A., 17 medical professionals who work in New York sued Governor
Hochul, Commissioner Zucker, and Attorney General James on September 13 in the
United States District Court for the Northern District of New York, seeking declaratory
8 They did not name Northwell Health as a defendant or seek relief against it.
9In their brief on appeal, the WTP Plaintiffs state that Northwell Health terminated Nurse
Bono’s employment on September 29. The WTP Plaintiffs also assert that Nurse Synakowski
was informed by her employer that her employment would be terminated by September 21 if
she was not vaccinated by then, but in their briefs filed since that date they have not stated
whether that came to pass.
14
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and injunctive relief preventing the enforcement of the Rule. 10 In their verified
complaint, they alleged three bases of unconstitutionality. First, they contended that the
Rule infringes on religious rights secured by the Free Exercise Clause by requiring that
they be vaccinated, contrary to their religious beliefs. Second, they claimed that Section
2.61 violates the Supremacy Clause because it is preempted by Title VII, which prohibits
discrimination in employment based on religion. Third, they claimed that Section 2.61
runs afoul of the Equal Protection Clause because it prevents them from seeking a
religious accommodation while at the same time allowing similarly situated healthcare
workers to seek a medical accommodation.
The Dr. A. Plaintiffs simultaneously moved for a temporary restraining order
and preliminary injunction. They sought immediate injunctive relief, citing “imminent
irreparable harm from loss of employment and professional standing” as a result of
their “religiously motivated refusal to be vaccinated.” Dr. A. App’x at 207.
On September 14, the district court granted Plaintiffs’ motion for a temporary
restraining order, enjoining the State from enforcing any requirement that employers
deny religious exemptions from the vaccine requirement or that employers revoke any
religious exemption already granted, and directed the State to file its opposition to
Plaintiffs’ request for a preliminary injunction. Six days later, the district court extended
the temporary restraining order for 14 days, pending its written opinion on Plaintiffs’
request for a preliminary injunction to be issued on or before October 12.
On October 12, the district court issued the requested preliminary injunction,
resting in part on its determination that Plaintiffs were likely to succeed on their Free
Exercise claim. The district court concluded that Plaintiffs had established that Section
The district court granted a request by the Dr. A. Plaintiffs to proceed pseudonymously. The
10
Dr. A. Plaintiffs do not identify their employers in their complaint.
15
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2.61 is neither a neutral law nor one of general applicability. It also ruled that Section
2.61 is likely to fail strict scrutiny. See Dr. A., 2021 WL 4734404, at *8–9. The district court
further concluded that Plaintiffs were likely to succeed on their Title VII preemption
claim, reasoning that Section 2.61 “effectively foreclose[s] the pathway to seek[] a
religious accommodation that is guaranteed under Title VII.” Id. at *6. 11
The State timely appealed. 12
DISCUSSION
Issuance of a preliminary injunction is an “extraordinary and drastic remedy”
that is “never awarded as of right.” Munaf v. Geren, 553 U.S. 674, 689–90 (2008) (quoting
11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, at 129 (2d
ed. 1995)). Preliminary injunctive relief “should not be routinely granted.” Hanson Tr.
PLC v. SCM Corp., 774 F.2d 47, 60 (2d Cir. 1985) (quoting Medical Soc. of State of N.Y. v.
11The district court declined to consider the merits of Plaintiffs’ Equal Protection claim.
Plaintiffs do not pursue this claim on appeal.
12Having lost before the district court in the Eastern District on September 12—before the Dr. A.
court entered its temporary restraining order (on September 14) or its preliminary injunction
(on October 12)—the WTP Plaintiffs successfully sought interim relief from the September 28
motions panel in this Court. Motion Order, WTP, No. 21-2179, Dkt. No. 65 (Sept. 30, 2021). Oral
argument on their appeal from the denial of a preliminary injunction was scheduled to be heard
on an expedited basis on October 14 by a duly convened regular argument panel—the panel
that now files this opinion per curiam. Case Calendaring, WTP, No. 21-2179, Dkt. No. 68. When
the district court in the Northern District granted the Dr. A. Plaintiffs’ request for a preliminary
injunction on October 12, the State promptly appealed. Notice of Appeal, Dr. A., No. 21-2566,
Dkt. No. 1. Because the two cases request virtually identical relief and offer overlapping
arguments, we determined not to hear the WTP Plaintiffs’ appeal on October 14, separate from
the State appeal in Dr. A., but rather to hear the cases in tandem. We scheduled the combined
oral argument for October 27, again on an expedited basis and with full briefing by the Dr. A.
Plaintiffs and the State. Order, WTP, No. 21-2179, Dkt. No. 116; Dr. A., No. 21-2566, Dkt. No. 8.
The parties helpfully coordinated their oral argument presentations to avoid needless
repetition.
16
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Toia, 560 F.2d 535, 537 (2d Cir. 1977)). When deciding whether to issue a preliminary
injunction, courts “should pay particular regard for the public consequences in
employing the extraordinary remedy of injunction.” Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 24 (2008).
To obtain a preliminary injunction that “will affect government action taken in
the public interest pursuant to a statute or regulatory scheme, the moving party must
demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on
the merits, and (3) public interest weighing in favor of granting the injunction.” 13
Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 631 (2d Cir. 2020) (internal quotation marks
omitted). The movant must also show that the balance of equities supports the issuance
of an injunction. See Yang v. Kosinski, 960 F.3d 119, 127 (2d Cir. 2020). We review the
grant or denial of a motion for a preliminary injunction for abuse of discretion. See
Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005). A district court has
exceeded the permissible bounds of its discretion when its “decision rests on an error of
law (such as application of the wrong legal principle) or a clearly erroneous factual
finding” or “cannot be located within the range of permissible decisions.”
13In Dr. A., the district court applied the likelihood-of-success standard, and the Dr. A. Plaintiffs
do not now argue that this was error. The parties in WTP, in contrast, cite our Court’s
alternative, less demanding “serious questions” standard for obtaining preliminary injunctive
relief, which authorizes injunctive relief if the movant has shown imminent irreparable harm as
well as “sufficiently serious questions going to the merits of its claims to make them fair ground
for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party.”
New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015) (internal quotation
marks omitted). But we have consistently applied the likelihood-of-success standard to cases
challenging government actions taken in the public interest pursuant to a statutory or
regulatory scheme, including in cases involving emergency regulations and orders. See, e.g.,
Agudath Israel, 983 F.3d at 631; Alleyne v. New York State Educ. Dep’t, 516 F.3d 96, 99–101 (2d Cir.
2008). The WTP parties have not explained why the “serious questions” standard should
nonetheless govern here. Accordingly, in our review of both appeals, we apply the likelihood-
of-success standard.
17
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Case 21-2566, Document 74, 11/04/2021, 3206107, Page18 of 50
Mastrovincenzo v. City of New York, 435 F.3d 78, 88 (2d Cir. 2006) (internal quotation
marks omitted).
Because the issues and arguments presented by these two appeals overlap
substantially, we consider them together, issue by issue, differentiating between them
only as we think necessary. 14
I. Likelihood of Success on the Merits: Free Exercise of Religion Claim
Plaintiffs contend that Section 2.61 violates their rights under the Free Exercise
Clause of the First Amendment because it does not include an exemption for employees
who oppose receiving the vaccine on religious grounds.
On a motion for preliminary injunction, the movants must show that they are
likely to prevail on their claim that the challenged government action is unlawful. On
the record before us, we conclude that neither the Dr. A. Plaintiffs nor the WTP
Plaintiffs have established a likelihood of success on their Free Exercise claims such that
they are entitled to the “extraordinary relief” of a preliminary injunction. The district
court’s conclusion to the contrary in Dr. A. was legal error and rested on clearly
erroneous findings of fact.
A. The Smith Standard
The First Amendment forbids the enactment of laws, either state or federal, that
“prohibit[] the free exercise” of religion. 15 U.S. Const., amend. I. But not all laws that
14Although the district court’s order denying the WTP Plaintiffs’ motion did not state the basis
for its decision, we may “affirm on any ground supported by the record.” NXIVM Corp. v. Ross
Inst., 364 F.3d 471, 476 (2d Cir. 2004).
15In relevant part, the First Amendment provides that “Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof.” The stricture has been
18
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Case 21-2566, Document 74, 11/04/2021, 3206107, Page19 of 50
burden an individual’s exercise of religion contravene this deeply rooted prohibition.
Nor do they always trigger heightened scrutiny. The Supreme Court has long applied
the standard set out by Justice Scalia for the Court in Employment Division v. Smith to
determine whether a democratically enacted law that burdens religious practice is
properly considered under rational basis review or strict scrutiny. See 494 U.S. at 879;
Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1876 (2021).
Under Smith, a “neutral law of general applicability” is subject to rational basis
review even if it incidentally burdens a particular religious practice. 494 U.S. at 878–79;
see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993).
We have observed that “[t]he teaching of Smith is that a state can determine that a
certain harm should be prohibited generally, and a citizen is not, under the auspices of
her religion, constitutionally entitled to an exemption.” Central Rabbinical Congress of the
U.S. & Canada v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183, 196 (2d Cir. 2014).
But if a law is not neutral towards religion or is not generally applicable, it falls outside
the boundaries of Smith. Then, for such a law to survive, it “must be justified by a
compelling governmental interest and must be narrowly tailored to advance that
interest.” Lukumi, 508 U.S. at 531–32.
Because they seek a preliminary injunction, Plaintiffs bear the initial burden of
establishing a likelihood of success on the merits. In the context of their First
Amendment claim, this means that Plaintiffs must show that they are likely to succeed
on their claim that Section 2.61 is not a neutral or generally applicable rule. If they
succeed at that step, the burden shifts to the State to show that it is likely to succeed in
defending the challenged Rule under strict scrutiny. Cf. Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006) (“[T]he burdens at the preliminary
held to limit the authorities of the states as well. See Cantwell v. Connecticut, 310 U.S. 296, 303
(1940).
19
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Case 21-2566, Document 74, 11/04/2021, 3206107, Page20 of 50
injunction stage track the burdens at trial.”). We conclude that, at this stage, Plaintiffs
have not carried their initial burden of showing that Section 2.61 is likely not neutral or
generally applicable.
B. Neutrality
The State “fails to act neutrally when it proceeds in a manner intolerant of
religious beliefs or restricts practices because of their religious nature.” Fulton, 141 S. Ct.
at 1877; see also Lukumi, 508 U.S. at 532 (First Amendment protections apply when “the
law at issue discriminates against some or all religious beliefs or regulates or prohibits
conduct because it is undertaken for religious reasons”). A law may be not neutral if it
explicitly singles out a religious practice, but even a facially neutral law will run afoul of
the neutrality principle if it “targets religious conduct for distinctive treatment.”
Lukumi, 508 U.S. at 533–34.
The Supreme Court has explained that “[a] law lacks facial neutrality if it refers
to a religious practice without a secular meaning discernable from the language or
context.” Id. at 533. Section 2.61 is facially neutral because it does not single out
employees who decline vaccination on religious grounds. It applies to all “personnel,”
as carefully defined in the Rule, aside from those who qualify for the narrowly framed
medical exemption.
Plaintiffs nonetheless maintain that the regulation “targets” them because of
their religious opposition to receiving any one of the three currently available COVID-
19 vaccines. In support, they point to events preceding the enactment of Section 2.61
and to several of Governor Hochul’s public comments during the month of September
as reflective of discriminatory intent on the part of the State. We take these claims in
order.
20
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Case 21-2566, Document 74, 11/04/2021, 3206107, Page21 of 50
First, Plaintiffs argue that the fact that the August 18 Order contained a religious
exemption, but Section 2.61 does not, demonstrates that in Section 2.61 the State
intended to “target” those who object to vaccination on religious grounds, and that this
reflects anti-religion animus. The district court in Dr. A. agreed, finding that the
difference between the two government actions amounted to a “religious
gerrymander.” Dr. A., 2021 WL 4734404, at *8 (quoting Lukumi, 508 U.S. at 535).
Specifically, the district court determined that Section 2.61, enacted eight days after the
August 18 Order, intentionally “amended the [August 18 Order] to eliminate the
religious exemption.” Id. As a result, the district court concluded that Plaintiffs had
established a likelihood that Section 2.61 was non-neutral based on their argument that
it “effectively targets religious opposition to the available COVID-19 vaccines.” Id.
In Lukumi, the Supreme Court determined that the municipal ordinance at issue,
which prohibited animal sacrifice, was not neutral because it effectively prohibited
conduct only undertaken by adherents to the Santeria religion as a part of their religious
practice. See 508 U.S. at 534–35. In contrast, Section 2.61 requires all covered employees
who can safely receive the vaccine to be vaccinated. It applies whether an employee is
eager to be vaccinated or strongly opposed, and it applies whether an employee’s
opposition or reluctance is due to philosophical or political objections to vaccine
requirements, concerns about the vaccine’s efficacy or potential side effects, or religious
beliefs. The absence of a religious exception to a law does not, on its own, establish non-
neutrality such that a religious exception is constitutionally required.
Further, that the August 18 Order contained a religious exemption, while Section
2.61 does not, falls short of rendering Section 2.61 non-neutral. The historical
background of Section 2.61, to be determined following discovery, may be relevant to
fully discerning the State’s intent, but the evidence before the district courts failed to
raise an inference that the regulation was intended to be a “covert suppression of
21
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particular religious beliefs.” New Hope Family Servs., Inc. v. Poole, 966 F.3d 145, 163 (2d
Cir. 2020) (quoting Lukumi, 508 U.S. at 534). In suggesting that Section 2.61 “eliminated”
the religious exemption, WTP Appellants’ Br. at 10, Plaintiffs misconstrue the
connection between the August 18 Order and the August 26 Rule. 16 The August 18
Order was issued by Commissioner Zucker alone as an emergency measure, intended
to be in place for a maximum of 15 days, in response to reports of the surging Delta
variant. Section 2.61, in contrast, was issued following collective deliberation by the 25-
member Public Health and Health Planning Council under the emergency rulemaking
procedures set forth in New York law, which provided more process, public input, and
support for a measure that would be effective for 90 days subject to renewal. These
procedures required the Council, among other things, to develop and issue specific
findings and a regulatory impact statement. NYS Admin. Proc. Act § 202(6)(iv), (viii).
After this extensive process, the full Council came to the conclusion that the vaccine
requirement should apply to a broader set of healthcare entities and, consistent with the
State’s highly effective existing vaccine requirements for measles and rubella (issued
with no religious exemption), see 10 N.Y.C.R.R. §§ 405.3, 415.26, 751.6, 763.13, 766.11,
794.3, 1001.11, should not contain a religious exemption. The Council did not amend the
August 18 Order: rather, it independently promulgated a new Rule. The record before
the district courts does not demonstrate that the Rule was intended to “target”
16In a recent decision, the First Circuit similarly misunderstood the connection between the
August 18 Order and August 26 Rule when attempting to distinguish the New York vaccination
mandate from the Maine vaccination mandate. See Does 1-6 v. Mills, — F.4th —, 2021 WL
4860328 (1st Cir. Oct. 19, 2021), application for injunctive relief denied sub nom. Does 1-3 v. Mills, —
S. Ct. —, No. 21A90, 2021 WL 5027177 (Oct. 29, 2021). The First Circuit mistakenly wrote, “Eight
days after New York officials promulgated a version of the regulation containing a religious
exemption, they amended the regulation to eliminate the religious exemption.” Id. at *9.
However, as we explain above, there was no “amending” of the regulation to remove a
religious exemption. Rather, the August 18 Order and the August 26 Rule were issued through
two separate processes.
22
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Case 21-2566, Document 74, 11/04/2021, 3206107, Page23 of 50
individuals opposed to receiving the COVID-19 vaccines because of their religious
beliefs.
Additionally, much occurred in the time between August 18 and August 26:
former Governor Andrew Cuomo resigned and Governor Hochul assumed office; 17 the
FDA gave full approval to the Pfizer-BioNTech vaccine for individuals 16 years of age
and older; 18 and the Delta variant continued its spread, becoming the dominant strain of
the virus in the State. 19 Even if the differing August 18 and August 26 requirements can
be said to represent a shift in the State’s policy position, Plaintiffs have not adduced
facts establishing that the change stemmed from religious intolerance, rather than an
intent to more fully ensure that employees at healthcare facilities receive the vaccine in
furtherance of the State’s public health goals. 20
Second, on appeal, Plaintiffs assert that certain comments made by Governor
Hochul in September reveal that Section 2.61 was intended to target them because of
their religious opposition to the required vaccination. 21 Some of those comments,
17New York State Governor’s Office, Video, Audio, Photos & Rush Transcript: Kathy Hochul Is
Sworn in as 57th Governor of New York State (Aug. 24, 2021),
https://www.governor.ny.gov/news/video-audio-photos-rush-transcript-kathy-hochul-sworn-
57th-governor-new-york-state.
18Press Release, U.S. Food and Drug Administration, FDA Approves First COVID-19 Vaccine
(Aug. 23, 2021), https://www.fda.gov/news-events/press-announcements/fda-approves-first-
covid-19-vaccine.
19 See Dr. A. Sp. App’x at 39.
20This is another area in which factual development can be expected to shed more light on the
circumstances surrounding the creation of both the Order and the Rule and validate or disprove
Plaintiffs’ allegations.
21Governor Hochul made the statements at issue after both the Dr. A. Plaintiffs and the WTP
Plaintiffs filed their preliminary injunction motions.
23
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Case 21-2566, Document 74, 11/04/2021, 3206107, Page24 of 50
however, did not relate to Section 2.61 or workplace vaccine requirements at all,
including Governor Hochul’s statements at church services in which she urged those in
attendance to get vaccinated. 22 Governor Hochul’s expression of her own religious
belief as a moral imperative to become vaccinated cannot reasonably be understood to
imply an intent on the part of the State to target those with religious beliefs contrary to
hers; otherwise, politicians’ frequent use of religious rhetoric to support their positions
would render many government actions “non-neutral” under Smith. At a press briefing
on September 15, in which she responded to the temporary restraining order issued in
Dr. A., Governor Hochul stated her “personal opinion” that no religious exemption is
required and that she was “not aware of” any “sanctioned religious exemption from
any organized religion.” 23 This comment simply mirrors the State’s litigation position
and conveys the fact—which Plaintiffs do not contest—that many religious leaders have
stated that vaccination is consistent with their faiths. 24 Governor Hochul’s comments
may more reasonably be understood to express general support for religious principles
22See New York State Governor’s Office, Rush Transcript: Governor Hochul Attends Service at
Christian Cultural Center (Sept. 26, 2021), https://www.governor.ny.gov/news/rush-transcript-
governor-hochul-attends-service-christian-cultural-center; New York State Governor’s Office,
Video, Audio, Photos & Rush Transcript: Governor Hochul Attends Services at Abyssinian
Baptist Church in Harlem (Sept. 12, 2021), https://www.governor.ny.gov/news/video-audio-
photos-rush-transcript-governor-hochul-attends-services-abyssinian-baptist-church.
23See New York State Governor’s Office, Video & Rush Transcript: Governor Hochul Holds
Q&A Following COVID-19 Briefing (Sept. 15, 2021), https://www.governor.ny.gov/news/video-
rough-transcript-governor-hochul-holds-qa-following-covid-19-briefing.
24See, e.g., Devin Watkins, Pope Francis Urges People to Get Vaccinated Against Covid-19, Vatican
News (Aug. 18, 2021), https://www.vaticannews.va/en/pope/news/2021-08/popefrancis-appeal-
covid-19-vaccines-act-of-love.html; Chairmen of the Committee on Doctrine and the Committee
on Pro-Life Activities, Moral Considerations Regarding the New COVID-19 Vaccines, U.S. Conf. of
Catholic Bishops (Dec. 11, 2020), https://www.usccb.org/moral-considerations-covid-vaccines.
24
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Case 21-2566, Document 74, 11/04/2021, 3206107, Page25 of 50
that she believes guide community members to care for one another by receiving the
COVID-19 vaccine.
Altogether, Governor Hochul’s comments, even considered in light of the
differing approaches taken by Commissioner Zucker in the August 18 Order and the
full Council in the Rule, do not evince animosity towards particular religious practices
or a desire to target religious objectors to the vaccine requirement because of their
religious beliefs. Rather, they suggest that the State wanted more people to obtain the
vaccine out of a deep concern for public health, which is a religion-neutral government
interest.
We therefore conclude that Plaintiffs at this stage have not carried their burden
of establishing that Section 2.61 is likely not neutral. The district court’s contrary
conclusion in Dr. A. was based on a clearly erroneous assessment of the record before it.
C. General Applicability
As the Supreme Court recently explained in Fulton v. City of Philadelphia, a law
may not be “generally applicable” under Smith for either of two reasons: first, “if it
invites the government to consider the particular reasons for a person’s conduct by
providing a mechanism for individualized exemptions”; or, second, “if it prohibits
religious conduct while permitting secular conduct that undermines the government’s
asserted interests in a similar way.” 141 S. Ct. at 1877 (internal quotation marks and
alterations omitted). Here, Plaintiffs’ argument, in substance, is that because Section
2.61 includes a medical exemption, it is not “generally applicable.”
1. Whether Section 2.61 Permits “Comparable” Secular Conduct
The general applicability requirement “protects religious observers against
unequal treatment, and inequality that results when a legislature decides that the
governmental interests it seeks to advance are worthy of being pursued only against
25
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conduct with a religious motivation.” Central Rabbinical Congress, 763 F.3d at 196–97
(alterations omitted) (quoting Lukumi, 508 U.S. at 542–43). 25 “A law is therefore not
generally applicable if it is substantially underinclusive such that it regulates religious
conduct while failing to regulate secular conduct that is at least as harmful to the
legitimate government interests purportedly justifying it.” Id. at 197. As the Supreme
Court stated in a recent order, “whether two activities are comparable for purposes of
the Free Exercise Clause must be judged against the asserted government interest that
justifies the regulation at issue.” Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021).
“Comparability is concerned with the risks various activities pose.” Id. Notably, in
Smith, a law criminalizing controlled substance possession was deemed generally
applicable even though it contained an exception for substances prescribed for medical
purposes. 494 U.S. at 874, 878–82.
The State alleges that the following interests underlie its adoption of Section 2.61.
First, it seeks to prevent the spread of COVID-19 in healthcare facilities among staff,
patients, and residents. Second, by protecting the health of healthcare employees to
ensure they are able to continue working, it aims to reduce the risk of staffing shortages
that can compromise the safety of patients and residents even beyond a COVID-19
infection. Thus, the State maintains, the medical and any religious exemption differ in
25Plaintiffs suggest that our decision in Central Rabbinical Congress was overruled by the
Supreme Court’s orders in Roman Catholic Diocese and Tandon. But Central Rabbinical Congress’s
formulation of the standard for identifying “comparable secular activity”—“secular conduct
that is at least as harmful [as religious conduct] to the legitimate government interests
purportedly justifying it,” 763 F.3d at 197—is consistent with the Supreme Court’s statements in
both of those cases. See Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020)
(stating that less-regulated factories, schools, and shopping centers were much more crowded
than churches and synagogues or had contributed to the spread of COVID-19, in contrast to the
religious institutions’ “admirable safety records”); Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021)
(considering secular activities comparable where they were not found to “pose a lesser risk of
transmission than [plaintiffs’] proposed religious exercise at home”).
26
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an important respect: applying the Rule to those who oppose vaccination on religious
grounds furthers the State’s asserted interests, whereas applying the Rule to those
subject to medical contraindications or precautions based on pre-existing conditions
would undermine the government’s asserted interest in protecting the health of covered
personnel. Cf. Does 1-6 v. Mills, — F.4th —, 2021 WL 4860328, at *6 (1st Cir. Oct. 19,
2021), application for injunctive relief denied sub nom. Does 1-3 v. Mills, — S. Ct. —, No.
21A90, 2021 WL 5027177 (Oct. 29, 2021). Vaccinating a healthcare employee who is
known or expected to be injured by the vaccine would harm her health and make it less
likely she could work. The State identified these objectives in the Regulatory Impact
Statement accompanying the emergency rulemaking, and Plaintiffs do not point to any
evidence suggesting that the interests asserted are pretextual or should otherwise be
disregarded in the comparability analysis. Accordingly, the State makes a reasonable
case that Section 2.61 contains a medical exemption not because it determined that “the
governmental interests it seeks to advance are worthy of being pursued only against
conduct with a religious motivation,” Lukumi, 508 U.S. at 543, but because applying the
vaccination requirement to individuals with medical contraindications and precautions
would not effectively advance those interests. Indeed, applying the vaccine to
individuals in the face of certain contraindications, depending on their nature, could
run counter to the State’s “interest in protecting the integrity and ethics of the medical
profession.” Gonzales v. Carhart, 550 U.S. 124, 157 (2007) (quoting Washington v.
Glucksberg, 521 U.S. 702, 731 (1997)); see also Jacobson v. Massachusetts, 197 U.S. 11, 38–39
(1905) (recognizing that the state may not be permitted to require vaccination of
individuals with contraindications).
Importantly, the State has also presented evidence that raises the possibility that
the exemptions are not comparable in terms of the “risk” that they pose. See Tandon, 141
S. Ct. at 1296. It notes that the medical exemption is defined to be limited in duration, as
27
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the vaccine requirement is “inapplicable only until such immunization is found no
longer to be detrimental to such personnel member’s health.” 10 N.Y.C.R.R. § 2.61(d)(1).
Although some of the contraindications and precautions identified by ACIP and
incorporated into the Department of Health guidance are long-term health conditions,
others are in fact explicitly temporary, such as having a current moderate-to-severe
acute illness. 26 In contrast, a sincerely held religious belief that vaccination is
inconsistent with one’s religion is unlikely to change to permit vaccination in the future,
absent the approval of new vaccines that are developed in a different way. The statistics
provided by the State further indicate that medical exemptions are likely to be more
limited in number than religious exemptions, and that high numbers of religious
exemptions appear to be clustered in particular geographic areas. See Dr. A. Appellants’
Reply Br. at 13 (citing Serafin, Index No. 908296-21, Doc. No. 57 (Decl. of Dorothy
Persico)) (ratios of religious exemptions to medical exemptions among Erie County and
Monroe County hospital workers were 18 to 1 and 23 to 1, respectively). 27
As a result, it may be feasible for healthcare entities to manage the COVID-19
risks posed by a small set of objectively defined and largely time-limited medical
exemptions. In contrast, it could pose a significant barrier to effective disease
prevention to permit a much greater number of permanent religious exemptions,
which, according to the State’s evidence, appear more commonly sought in certain
locations. See Serafin, Index No. 908296-21, Doc. No. 57 (Decl. of Dorothy Persico).
Although these differences may, after factual development, be shown to be too
insignificant to render the exemptions incomparable, the limited evidence now before
26 See FAQs, supra at 10.
27As discussed, Plaintiffs do not contest the State’s assertion that higher numbers of employees
claim religious exemptions than medical exemptions. See supra note 3.
28
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us suggests that the medical exemption is not “as harmful to the legitimate government
interests purportedly justifying” the Rule as a religious exemption would be. Central
Rabbinical Congress, 763 F.3d at 197.
In their efforts to show a likelihood of success on the merits, Plaintiffs counter
that Section 2.61, by providing a medical but not a religious exemption, effectively
prohibits religion-based refusals of vaccination while permitting “comparable” refusals
on secular grounds. To establish comparability under Smith, Plaintiffs rely heavily on
the general—and reasonable—proposition that any individual unvaccinated employee
is likely to present statistically comparable risks of both contracting and spreading
COVID-19 at any given healthcare facility, irrespective of the reason that the employee
is unvaccinated. In Plaintiffs’ view, the Supreme Court’s orders in Roman Catholic
Diocese of Brooklyn v. Cuomo and Tandon v. Newsom require us to confine our analysis to
evaluating the risk of COVID-19 transmission posed by each unvaccinated individual.
Both of those cases involved challenges to occupancy limits placed on religious
services, in an effort to curb COVID-19 transmission indoors, which were not applied to
secular businesses with similarly high capacities. See Roman Catholic Diocese of Brooklyn
v. Cuomo, 141 S. Ct. 63, 67 (2020); Tandon, 141 S. Ct. at 1297. Unlike Plaintiffs’ proposed
analysis here, however, Roman Catholic Diocese and Tandon did not involve a one-to-one
comparison of the transmission risk posed by an individual worshipper and, for
example, an individual grocery shopper. The Supreme Court’s discussion in those
cases, which compared the risks posed by groups of various sizes in various settings,
suggests the appropriateness of considering aggregate data about transmission risks.
See, e.g., Roman Catholic Diocese, 141 S. Ct. at 66–67 (comparing “a large store in Brooklyn
that could literally have hundreds of people shopping there on any given day” with “a
nearby church or synagogue [that] would be prohibited from allowing more than 10 or
25 people for a worship service”). We doubt that, as an epidemiological matter, the
29
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number of people seeking exemptions is somehow excluded from the factors that the
State must take into account in assessing the relative risks to the health of healthcare
workers and the efficacy of its vaccination strategy in actually preventing the spread of
disease. The record before us contains only limited data regarding the prevalence of
medical ineligibility and religious objections, but what data we do have indicates that
claims for religious exemptions are far more numerous.
Further, Tandon expressly instructs courts to consider “the asserted government
interest that justifies the regulation at issue” when determining whether two activities
are comparable for Free Exercise Clause purposes. Tandon, 141 S. Ct. at 1296. By
confining their discussion of comparability to individual risk of transmission alone,
Plaintiffs fail to engage with the reasons above, persuasive to us, that substantially
distinguish the medically ineligible from the religious objectors in light of the State’s
asserted purposes. At this stage, Plaintiffs do not meaningfully challenge the legitimacy
of the government’s asserted interest in protecting the health of workers and
maintaining staffing levels, or the proposition that requiring those who have been
granted a medical exemption to be vaccinated would undermine those interests to a
lesser degree than would a religious exemption.
As counsel for the WTP Plaintiffs acknowledged at oral argument, Plaintiffs here
essentially contend that all existing vaccination mandates without a religious exemption
necessarily fail the general applicability test because they likely all contain medical
exemptions. At the same time, it appears that for decades, those charged with
protecting the public health against infectious disease in New York State have required
vaccination of all medically eligible employees and treated the requirement as a
condition of employment in the healthcare arena. For example, the State has required
healthcare employees to be vaccinated against rubella and measles since 1980 and 1991,
respectively, without a religious exemption. Many of these vaccines, including the
30
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rubella vaccine, appear from the information available to us (and not to date contested
by Plaintiffs) to have connections to the same fetal cell lines that form the basis for
Plaintiffs’ religious objections here. See Los Angeles County Dep’t of Pub. Health,
COVID-19 Vaccine and Fetal Cell Lines, supra note 5. Thus, if accepted, Plaintiffs’
arguments would go beyond just being inconsistent with past practices: they would
have potentially far-reaching and harmful consequences for governments’ ability to
enforce longstanding public health rules and protocols.
With a record as undeveloped on the issue of comparability as that presented
here, we cannot conclude that the above vaccination requirements are per se not
generally applicable, as Plaintiffs’ argument would have it, so as to support a
preliminary injunction at this time. See Smith, 494 U.S. at 888–89 (counting “compulsory
vaccination laws” among those generally applicable civic obligations for which no
religious exemption is required); see also Prince v. Massachusetts, 321 U.S. 158, 166–67
(1944) (“[A parent] cannot claim freedom from compulsory vaccination for the child
more than for himself on religious grounds. The right to practice religion freely does not
include liberty to expose the community or the child to communicable disease . . . .”
(footnote omitted)); Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir. 2015) (per
curiam) (maintaining that religious exemptions to vaccine mandates are not
constitutionally required).
The record before the district courts was sparse. It does not support a conclusion
that Plaintiffs have borne their burden of demonstrating that the medical exemption
provided in Section 2.61 and the religious exemption sought are likely comparable.
2. Whether Section 2.61 Provides for a System of Individualized Exemptions
General applicability may be absent when a law provides “a mechanism for
individualized exemptions,” Smith, 494 U.S. at 884, because it creates the risk that
31
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administrators will use their discretion to exempt individuals from complying with the
law for secular reasons, but not religious reasons. For instance, in Smith, the Supreme
Court distinguished generally applicable laws from an unemployment compensation
statute under which applicants were eligible for benefits if they presented “good cause”
for their unemployment, which allowed administrators, in their discretion, to refuse an
exemption if an applicant could not work for religious reasons, but to grant an
exemption if an applicant could not work for other personal reasons. 494 U.S. at 884
(quoting Bowen v. Roy, 476 U.S. 693, 708 (1986) (plurality opinion) and citing Sherbert v.
Verner, 374 U.S. 398, 401 & n.4 (1963)). The Court observed that the context of the
unemployment compensation system “lent itself to individualized government
assessment of the reasons for the relevant conduct.” Id. Similarly, the Court recently
found a system of individualized exemptions to exist where an official had “sole
discretion” to grant or deny exemptions to the anti-discrimination provision in
contracts between the City of Philadelphia and adoption service providers. Fulton, 141
S. Ct. at 1878–79.
As other Circuits have noted, however, “an exemption is not individualized
simply because it contains express exceptions for objectively defined categories of
persons.” 303 Creative LLC v. Elenis, 6 F.4th 1160, 1187 (10th Cir. 2021) (internal
quotation marks and alteration omitted); see also Stormans, Inc. v. Wiesman, 794 F.3d
1064, 1081–82 (9th Cir. 2015) (finding that the challenged “rules do not afford unfettered
discretion that could lead to religious discrimination because the provisions are tied to
particularized, objective criteria”), cert. denied, 136 S. Ct. 2433 (2016); cf. Intercommunity
Ctr. for Justice & Peace v. I.N.S., 910 F.2d 42, 45 (2d Cir. 1990) (concluding that
immigration law that prohibited knowingly employing an unauthorized immigrant did
“not provide for a discretionary exemption that is applied in a manner that fails to
accommodate free exercise concerns” despite its inclusion of an exemption for
32
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employing certain household employees hired before November 1986). The “mere
existence of an exemption procedure,” absent any showing that secularly motivated
conduct could be impermissibly favored over religiously motivated conduct, is not
enough to render a law not generally applicable and subject to strict scrutiny. Lighthouse
Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 276 (3d Cir. 2007).
The WTP Plaintiffs argue that the medical exemption in Section 2.61 creates a
mechanism for individualized exemptions. They are mistaken. The medical exemption
here does not “‘invite’ the government to decide which reasons for not complying with
the policy are worthy of solicitude.” Fulton, 141 S. Ct. at 1879 (quoting Smith, 494 U.S. at
884). Instead, the Rule provides for an objectively defined category of people to whom
the vaccine requirement does not apply: employees who present a certification from a
physician or certified nurse practitioner attesting that they have a pre-existing health
condition that renders the vaccination detrimental to their health, in accordance with
generally accepted medical standards, such as those published by ACIP, 28 for the period
28 Under the generally accepted medical standards published by ACIP, cognizable
contraindications to the COVID-19 vaccines are limited to “[s]evere allergic reaction (e.g.,
anaphylaxis) after a previous dose or to a component of the COVID-19 vaccine” and
“[i]mmediate (within 4 hours) allergic reaction of any severity to a previous dose or known
(diagnosed) allergy to a component of the COVID-19 vaccine.” FAQs, supra at 10 (citing ACIP
standards). Precautions to the vaccines are limited to “[c]urrent moderate to severe acute
illness[,] . . . [h]istory of an immediate allergic reaction to any other (not COVID-19) vaccine or
injectable therapy (excluding allergy shots)[, and] [h]istory of myocarditis or pericarditis after
receiving the first dose of an mRNA COVID-19 vaccine.” Id. (citing ACIP standards).
Additionally, individuals with a “contraindication to one type of COVID-19 vaccine (e.g.,
mRNA COVID-19 vaccines) have precautions to another type of COVID-19 vaccine (e.g.,
Janssen/Johnson & Johnson vaccine).” Id. (citing ACIP standards). An individual who has a
contraindication to the vaccine cannot be safely vaccinated, but “[m]ost people deemed to have
a precaution to a COVID-19 vaccine at the time of their vaccination appointment can and
should be administered vaccine” after conducting a risk assessment with a healthcare provider.
Centers for Disease Control and Prevention, Interim Clinical Considerations for Use of COVID-19
Vaccines Currently Approved or Authorized in the United States: Contraindications and Precautions
(Oct. 25, 2021), https://www.cdc.gov/vaccines/covid-19/clinical-considerations/covid-19-
33
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during which the vaccination remains detrimental to their health. See 10 N.Y.C.R.R.
§ 2.61(d)(1). A written description of the nature and duration of the condition must be
furnished, and the exemption must be documented. On its face, the Rule affords no
meaningful discretion to the State or employers, and Plaintiffs have not put forth any
evidence suggesting otherwise. For example, Plaintiffs have not plausibly alleged or
offered evidence to suggest that employees are requesting, or that the State is allowing,
medical exemptions that do not conform to the Rule or applicable standards.
That physicians and nurse practitioners must use their medical judgment to
determine whether a particular individual has a contraindication or precaution against
receiving the vaccine does not render the exemption discretionary. Indeed, Smith itself
specifically held that a scheme that included a type of medical exemption—by not
criminalizing the use of controlled substances when prescribed by a medical
practitioner—was nonetheless generally applicable under the Free Exercise Clause. See
Smith, 494 U.S. at 874. If the State can lawfully choose to apply the vaccination
requirement to those with religious objections but not those medically unable to get
vaccinated because the two are not comparable—and, as explained above, Plaintiffs
have not established a likelihood of success on their argument to the contrary—then
Section 2.61 appears to leave no room for the State to favor impermissible secular
reasons for declining vaccination over religious reasons. 29
vaccines-us.html#Contraindications. The specificity of these limitations stands in contrast to the
absence of limitations and specificity in the medical exemption provided in the Maine statute
recently subject to review and consideration by the Supreme Court. See Mills, 2021 WL 4860328,
at *5 (construing Me. Rev. Stat. tit. 22, § 802); Mills, 2021 WL 5027177, at *2 (Gorsuch, J.,
dissenting from the denial of application for injunctive relief) (stating that the law does not
“limit what may qualify as a valid ‘medical’ reason to avoid inoculation”).
29In Dahl v. Bd. of Trustees of Western Michigan Univ., — F.4th —, 2021 WL 4618519 (6th Cir. Oct.
7, 2021) (per curiam), the Sixth Circuit, under different factual circumstances, ruled that a
student-athlete vaccine mandate that provided that medical and religious exemptions would be
34
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***
Based on the foregoing, Plaintiffs have not established, at the preliminary
injunction stage, that they are likely to succeed in showing that Section 2.61 is not
neutral or generally applicable. Accordingly, rational basis review applies. See Fulton,
141 S. Ct. at 1876 (citing Smith, 494 U.S. at 878–82). Section 2.61 easily meets that
standard, which requires that the State have chosen a means for addressing a legitimate
goal that is rationally related to achieving that goal. See Jacoby & Meyers, LLP v. Presiding
Justices of the First, Second, Third and Fourth Dep’ts, App. Div. of the Sup. Ct. of N.Y., 852
F.3d 178, 191 (2d Cir. 2017). Faced with an especially contagious variant of the virus in
the midst of a pandemic that has now claimed the lives of over 750,000 in the United
States and some 55,000 in New York, the State decided as an emergency measure to
require vaccination for all employees at healthcare facilities who might become infected
and expose others to the virus, to the extent they can be safely vaccinated. This was a
reasonable exercise of the State’s power to enact rules to protect the public health. 30 See
Jacobson, 197 U.S. at 25; Phillips, 775 F.3d at 542–43.
considered on an individual basis at the discretion of the University meant that the school’s
vaccine mandate was not generally applicable under Fulton. Id. at *1, *4. We of course are not
bound by that analysis, and we believe Dahl to have addressed a factual setting significantly
different from that presented here. In Dahl, the University was afforded so much discretion to
rule on individual cases, and so few standards governed the exercise of that discretion, as to
leave room for the University to apply potentially discriminatory standards, or at least to avoid
a neutral application of generally applicable principles. See id. at *4. Here, we think the
standards articulated by ACIP and binding the State employers are sufficiently well-defined to
avoid grossly pretextual or discriminatory application—and Plaintiffs have not met their
burden to show that is not the case. Examined at a proper perspective—one suitable to dealing
with large populations in a public health crisis—we see no basis for adopting the Dahl court’s
approach here.
30We also observe that, irrespective of whether Section 2.61 is ultimately upheld at the
conclusion of this litigation, private healthcare institutions may impose vaccination
requirements of their own, subject to any relevant limitations imposed by Title VII and other
applicable law but regardless of the limitations that the First Amendment imposes on the State.
35
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II. Likelihood of Success on the Merits: Supremacy Clause and Title VII Claim
The Dr. A. Plaintiffs contend that Section 2.61 contravenes the Supremacy Clause
because it is preempted by Title VII, which prohibits discrimination in employment on
the basis of religion. 42 U.S.C. § 2000e-2(a)(1)–(2). To succeed on this type of preemption
claim, plaintiffs must show that “local law conflicts with federal law such that it is
impossible for a party to comply with both or the local law is an obstacle to the
achievement of federal objectives.” N.Y. SMSA Ltd. P’ship v. Town of Clarkstown, 612 F.3d
97, 104 (2d Cir. 2010). 31
Plaintiffs construe Section 2.61 to prohibit healthcare employers from making
reasonable accommodations as otherwise required by Title VII. Plaintiffs cite the
absence of an express religious exemption in Section 2.61 in support of their position
that the Rule simply leaves “no room for Plaintiffs’ employers even to consider their
reasonable religious accommodation requests as required by federal law under Title
VII.” Dr. A. Appellees’ Br. at 29 (emphasis omitted). 32
31“In general, three types of preemption exist: (1) express preemption, where Congress has
expressly preempted local law; (2) field preemption, where Congress has legislated so
comprehensively that federal law occupies an entire field of regulation and leaves no room for
state law; and (3) conflict preemption, where local law conflicts with federal law such that it is
impossible for a party to comply with both or the local law is an obstacle to the achievement of
federal objectives.” N.Y. SMSA Ltd. P’ship, 612 F.3d at 104 (internal quotation marks omitted).
Plaintiffs here invoke conflict preemption.
32Although the Dr. A. Plaintiffs style their preemption claim as a challenge brought pursuant to
the Supremacy Clause, the Supreme Court has held that the Supremacy Clause does not create
an independent cause of action. See Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 324–25
(2015) (“[T]he Supremacy Clause is not the source of any federal rights, and certainly does not
create a cause of action. It instructs courts what to do when state and federal law clash, but is
silent regarding who may enforce federal laws in court, and in what circumstances they may do
so.”) (internal quotation marks and citations omitted).
36
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The District Court for the Northern District of New York agreed, ruling that
Plaintiffs were likely to succeed on the merits of this claim. See Dr. A., 2021 WL 4734404,
at *6. The district court held that Section 2.61 “do[es] not make room for ‘covered
entities’ to consider requests for reasonable religious accommodations,” and instead
requires all personnel at covered entities to be vaccinated. Id. The district court
observed that the employers of some Plaintiffs had revoked previously afforded
religious exemptions or religious accommodations to COVID-19-vaccine requirements,
citing the State’s adoption of Section 2.61. Id. In the district court’s view, Plaintiffs
adequately demonstrated that Section 2.61 “effectively foreclose[s] the pathway to
seeking a religious exemption that is guaranteed under Title VII.” Id.
Title VII makes it unlawful for employers “to discharge . . . or otherwise to
discriminate against any individual” in his or her employment “because of such
individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1). The statute defines “religion” to
include “all aspects of religious observance and practice, as well as belief, unless an
employer demonstrates that he is unable to reasonably accommodate . . . an
employee’s . . . religious observance or practice without undue hardship on . . . the
employer’s business.” Id. § 2000e(j); see Trans World Airlines, Inc. v. Hardison, 432 U.S. 63,
66 (1977); cf. EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 770 (2015).
The Dr. A. Plaintiffs argue, as described above, that the absence of a religious
exemption in Section 2.61 prohibits them from seeking reasonable accommodations
from their employers under Title VII for their sincerely held religious beliefs. Section
2.61 is silent, however, on the employment-related actions that employers may take in
response to employees who refuse to be vaccinated for religious reasons. The State
observes that “[n]othing in [Section 2.61] precludes employers from accommodating
religious objectors by giving them . . . assignments—such as telemedicine—where they
37
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would not pose a risk of infection to other personnel, patients, or residents.” Dr. A.
Appellants’ Br. at 62. We agree with the State.
Section 2.61, on its face, does not bar an employer from providing an employee
with a reasonable accommodation that removes the individual from the scope of the
Rule. Section 2.61 does not require employers to violate Title VII because, although it
bars an employer from granting a religious exemption from the vaccination requirement,
it does not prevent employees from seeking a religious accommodation allowing them to
continue working consistent with the Rule, while avoiding the vaccination requirement.
See also Mills, 2021 WL 4860328, at *10 (“The appellants’ Supremacy Clause argument
rests on their assertion that the hospitals . . . have claimed that the protections of Title
VII are inapplicable in the State of Maine. The record simply does not support that
argument. . . . [T]he hospitals merely dispute that Title VII requires them to offer the
appellants the religious exemptions they seek.” (internal quotation marks and alteration
omitted)).
Contrary to the Dr. A. Plaintiffs’ interpretation of the statute, Title VII does not
require covered entities to provide the accommodation that Plaintiffs prefer—in this
case, a blanket religious exemption allowing them to continue working at their current
positions unvaccinated. To avoid Title VII liability for religious discrimination, an
employer “need not offer the accommodation the employee prefers.” Cosme v.
Henderson, 287 F.3d 152, 158 (2d Cir. 2002). Instead, an employer must offer a reasonable
accommodation that does not cause the employer an undue hardship. Once “any
reasonable accommodation is provided, the statutory inquiry ends.” Id. Because Section
2.61’s text does not foreclose all opportunity for Plaintiffs to secure a reasonable
accommodation under Title VII, the Rule does not conflict with federal law. Therefore,
the district court’s conclusion to the contrary constituted legal error.
38
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The district court’s conclusion also turned on clearly erroneous factual findings.
At this stage, the Dr. A. Plaintiffs have submitted little in support of their broad
allegations about the effect of Section 2.61. The district court reached the conclusion that
accommodation by their employers was foreclosed upon the Dr. A. Plaintiffs’ say-so,
without any documentation supporting Plaintiffs’ allegations that they were denied
reasonable accommodations from their employers. The district court granted the Dr. A.
Plaintiffs’ motion for a preliminary injunction without a hearing and without knowing
the identities of Plaintiffs’ employers or the substance of Plaintiffs’ interactions with
their employers. It may turn out that the opportunities for a reasonable accommodation
under Title VII for religious objectors to the vaccine are numerous, or it may be that
there are so few as to be illusory. Perhaps accommodations for the medically ineligible
leave few available for the religious objectors.33 Or perhaps the requests for
accommodations in each category will vary by employer, by part of the State, or by
employee demographics. But without any data in the record, we cannot conclude that
Plaintiffs have met their burden to show a likelihood of success on the merits, and we
decline to draw any conclusion about the availability of reasonable accommodation
based solely on surmise and speculation.
At this preliminary stage, we therefore conclude that the district court erred by
finding that Plaintiffs are likely to succeed on their claim that Section 2.61 is preempted
by Title VII and therefore violative of the Supremacy Clause.
33Although the Rule does not prevent healthcare entities from taking additional precautions to
minimize the transmission risk posed by medically exempt employees, healthcare entities may
permit a medically exempt employee to continue normal job responsibilities provided they
comply with requirements for personal protective equipment. See FAQs, supra at 10.
39
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III. Likelihood of Success on the Merits: Rights to Privacy, Medical Freedom, and
Bodily Autonomy Claim
The WTP Plaintiffs maintain on appeal that they are likely to succeed in
establishing that Section 2.61 violates their fundamental rights to privacy, medical
freedom, and bodily autonomy under the Fourteenth Amendment. 34 This argument also
fails.
Both this Court and the Supreme Court have consistently recognized that the
Constitution embodies no fundamental right that in and of itself would render vaccine
requirements imposed in the public interest, in the face of a public health emergency,
unconstitutional. See Jacobson, 197 U.S. at 25–31, 37; Phillips, 775 F.3d at 542–43.
Plaintiffs’ argument that the Supreme Court’s decision in Roman Catholic Diocese
“expressly overruled” Jacobson is a mystery, given that the majority did not even
mention Jacobson. WTP Appellants’ Br. at 35; see generally Roman Catholic Diocese, 141 S.
Ct. 63.
Their alternative contention that Jacobson and Phillips have been implicitly
overruled by the Supreme Court likewise finds no support in caselaw. In Cruzan, a case
relied upon by Plaintiffs for the proposition that they have a fundamental constitutional
right to refuse medical treatment, the Court expressly recognized its holding in Jacobson
that “an individual’s liberty interest in declining an unwanted smallpox vaccine” was
outweighed there by “the State’s interest in preventing disease.” Cruzan by Cruzan v.
34The WTP Plaintiffs’ complaint describes these rights as arising from the First, Fourth, Fifth,
and Fourteenth Amendments, but on appeal they assert that these rights are derived from either
the Fourteenth Amendment alone or a combination of the First, Fourth, Fifth, Ninth, and
Fourteenth Amendments. Because the WTP Plaintiffs do not make any particularized argument
for why the fundamental rights they assert may be implicated by constitutional provisions other
than the Fourteenth Amendment, we evaluate only their challenge as to the Fourteenth
Amendment.
40
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Dir., Missouri Dep’t of Health, 497 U.S. 261, 278 (1990). Plaintiffs provide no basis for
concluding that the vaccination requirement here, considerably narrower than the city-
wide mandate in Jacobson, violates a fundamental constitutional right. 35 Although
individuals who object to receiving the vaccines on religious grounds have a hard
choice to make, they do have a choice. Vaccination is a condition of employment in the
healthcare field; the State is not forcibly vaccinating healthcare workers. As in Phillips,
the instant “challenge to the mandatory vaccination regime is therefore no more
compelling than Jacobson’s was more than a century ago.” 775 F.3d at 542. Cf. Klaassen
v. Trs. of Indiana Univ., 7 F.4th 592, 593 (7th Cir. 2021) (“[S]uch [a substantive due
process] argument depends on the existence of a fundamental right ingrained in the
American legal tradition. Yet Jacobson, which sustained a criminal conviction for
refusing to be vaccinated, shows that plaintiffs lack such a right.”).
Accordingly, the WTP Plaintiffs have not established that they are likely to
succeed on the merits of their Fourteenth Amendment claim.
IV. Irreparable Harm, the Public Interest, and the Balance of Equities
Plaintiffs are not entitled to a preliminary injunction because they cannot, on the
present record, show a likelihood of success on the merits. We nonetheless briefly
address the remaining preliminary injunction requirements: “irreparable harm absent
35Plaintiffs’ reliance on Roe v. Wade, 410 U.S. 113 (1973), Planned Parenthood v. Casey, 505 U.S. 833
(1992), and Lawrence v. Texas, 539 U.S. 558 (2003), also fails to persuade. These cases do not
establish a broad fundamental privacy right for all medical decisions made by an individual—
and particularly not for a decision with such broad community consequences as declining
vaccination against a highly contagious disease while working in contact with vulnerable
people at healthcare facilities. This Court cannot find an overriding privacy right when doing so
would conflict with Jacobson. Although in 1905, when it was decided, Jacobson might have been
read more narrowly, for over 100 years it has stood firmly for the proposition that the urgent
public health needs of the community can outweigh the rights of an individual to refuse
vaccination. Jacobson remains binding precedent.
41
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injunctive relief”; the “public interest weighing in favor of granting the injunction”; and
“the balance of equities tip[ping] in [the movant’s] favor,” Yang, 960 F.3d at 127, and
determine that Plaintiffs have not successfully met them.
A. Irreparable Harm
The law recognizes the harm that necessarily results when the State
unconstitutionally burdens religious exercise. “Religious adherents are not required to
establish irreparable harm independent of showing a Free Exercise Clause violation
because a presumption of irreparable injury flows from a violation of constitutional
rights.” Agudath Israel, 983 F.3d at 636 (internal quotation marks and alteration omitted);
see also Bery v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996) (“Violations of First
Amendment rights are commonly considered irreparable injuries for the purposes of a
preliminary injunction.”). Although Plaintiffs are subject to meaningful burdens on
their religious practice if they choose to obtain the COVID-19 vaccine, because they
have failed to demonstrate a likelihood of success on their First Amendment or other
constitutional claims, their asserted harm is not of a constitutional dimension. Thus,
Plaintiffs fail to meet the irreparable harm element simply by alleging an impairment of
their Free Exercise right.
Plaintiffs also contend that they face imminent irreparable harm from loss of
employment and professional standing if they refuse the COVID-19 vaccine on religious
grounds. We acknowledge that Plaintiffs may possibly suffer significant employment
consequences if they refuse on religious grounds to be vaccinated. It is well settled,
however, that adverse employment consequences are not the type of harm that usually
warrants injunctive relief because economic harm resulting from employment actions is
typically compensable with money damages. See Sampson v. Murray, 415 U.S. 61, 91–92
(1974) (“[L]oss of income and . . . the claim that her reputation would be damaged . . .
falls far short of the type of irreparable injury which is a necessary predicate to the
42
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issuance of a temporary injunction[.]”); Savage v. Gorski, 850 F.2d 64, 68 (2d Cir. 1988)
(“Since reinstatement and money damages could make appellees whole for any loss
suffered during this period, their injury is plainly reparable and appellees have not
demonstrated the type of harm entitling them to injunctive relief.”). Because Plaintiffs’
economic harms under Title VII could be remedied with money damages, and
reinstatement is a possible remedy as well, we conclude that Plaintiffs have failed to
demonstrate that they will suffer irreparable harm absent injunctive relief.
We pause to recognize, should the issue remain on remand, that this case raises
difficult, apparently unusual questions as to imminent irreparable harm. Perhaps, if
they prevail at the conclusion of this litigation, Plaintiffs would seek lost wages, but it is
not at all clear who would pay them. To the extent Plaintiffs allege that they will suffer
adverse employment consequences or loss of professional standing if not provided
accommodations under Title VII, Plaintiffs might seek money damages from their
employers. Private medical-provider employers might make a persuasive argument
that they should not have to pay because they were in effect compelled by law to
terminate the employment. Absent a waiver, however, sovereign immunity would
likely prevent Plaintiffs from obtaining money damages from the State. See Virginia
Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 254 (2011).
We emphasize, however, that we do not place any weight on the issue of
remediation of Plaintiffs’ financial losses at this preliminary injunction stage. The
district courts can consider the issue, should it be necessary to do so, upon a
determination of the permanent injunction request, presumably upon further factual
development and findings.
43
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B. Public Interest and Balance of Equities
Plaintiffs have also failed to demonstrate that the public interest weighs in favor
of enjoining enforcement of Section 2.61. When the government is a party to the suit,
our inquiries into the public interest and the balance of the equities merge. See New York
v. United States Dep’t of Homeland Sec., 969 F.3d 42, 58–59 (2d Cir. 2020). Here, the State
has an indisputably compelling interest in ensuring that the employees who care for
hospital patients, nursing home residents, and other medically vulnerable people in its
healthcare facilities are vaccinated against COVID-19, not just to protect them and those
with whom they come into contact from infection, but also to prevent an overburdening
of the healthcare system. Although Plaintiffs undoubtedly face a difficult choice if their
employers deny religious accommodations—whether to be vaccinated despite their
religious beliefs or whether to risk termination of their jobs—such hardships are
outweighed by the State’s interest in maintaining the safety within healthcare facilities
during the pandemic.
Plaintiffs assert that the State “will suffer no harm as the New York healthcare
system has operated for the last year without interruption or catastrophe” without
requiring vaccination for healthcare workers. WTP Appellants’ Br. at 11. Defining the
relevant time frame in this way notably omits the first wave of the pandemic, during
which New York hospitals were in crisis, with frontline nurses and physicians
reportedly experiencing some of the highest rates of infection and death; New York City
nursing homes experienced such a high number of deaths that their morgue capacity
was exceeded. See Br. for Amicus Curiae Greater New York Hospital Association
(“GNYHA Amicus Br.”) at 3 (citing Miriam Mutambudzi et al., Occupation and Risk of
Severe COVID-19: Prospective Cohort Study of 120 075 UK Biobank Participants, 78
Occupational & Envt’l Med. 307, 311 (2021)); New York State Office of the Attorney
44
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General, Nursing Home Response to COVID-19 Pandemic 12 (Jan. 30, 2021),
https://ag.ny.gov/sites/default/files/2021-nursinghomesreport.pdf.
But even within the past year, healthcare facilities in the State have been under
strain. According to amicus Greater New York Hospital Association, not only has
transmission of the virus continued in hospitals even with the use of personal protective
equipment, testing, and other measures, see GNYHA Amicus Br. at 9, 12–14, but hospital
workers have also experienced a “parallel pandemic” of burnout, anxiety, depression,
and other mental health issues, id. at 16. Researchers have found that this phenomenon
stems from “a perceived lack of control, treatment of other healthcare workers for
COVID-19, and uncertainty about colleagues’ infection status,” and it has been
accompanied by increased rates of resignation and retirement as well as incidents of
self-harm. Id. at 16–17 (citing Ari Schechter et al., Psychological Distress, Coping Behaviors,
and Preferences for Support among New York Healthcare Workers During the COVID-19
Pandemic, 66 Gen. Hosp. Psychiatry 1, 3 (2020), https://www.ncbi.nlm.nih.gov/pmc/
articles/PMC7297159, and Wendy Dean, Suicides of Two Health Care Workers Hint at the
COVID-19 Mental Health Crisis to Come, STAT News (Apr. 30, 2020),
https://www.statnews.com/2020/04/30/suicides-two-health-care-workers-hint-at-covid-
19-mental-health-crisis-to-come), 19 (citing Bridget Balch, “Worst Surge We’ve Seen”:
Some Hospitals in Delta Hot Spots Close to Breaking Point, AAMC (Aug. 24, 2021),
https://www.aamc.org/news-insights/worst-surge-we-ve-seen-some-hospitals-delta-
hot-spots-close-breaking-point).
Therefore, Plaintiffs have not demonstrated that “the balance of equities tips in
[their] favor.” Yang, 960 F.3d at 127. Because Section 2.61 furthers the State’s compelling
interest and Plaintiffs have not shown a likelihood of demonstrating that their
constitutional rights are violated by the Rule, they have also failed to show that a
preliminary injunction preventing the Rule’s implementation serves the public interest.
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Whether this issue will ultimately carry any weight when the district courts decide
Plaintiffs’ entitlement to a permanent injunction on remand, we need not and do not
decide.
CONCLUSION
For the foregoing reasons, the order of the United States District Court for the
Eastern District of New York is AFFIRMED. The order of the United States District
Court for the Northern District of New York is REVERSED, and the preliminary
injunction entered by that court is VACATED. These tandem cases are REMANDED to
their respective district courts for further proceedings consistent with the Order entered
on October 29, 2021, and this Opinion.
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APPENDIX
Section 2.61. Prevention of COVID-19 transmission by covered entities
<Emergency action effective Aug. 26, 2021>
(a) Definitions.
(1) Covered entities for the purposes of this section, shall include:
(i) any facility or institution included in the definition of “hospital” in section
2801 of the Public Health Law, including but not limited to general hospitals,
nursing homes, and diagnostic and treatment centers;
(ii) any agency established pursuant to Article 36 of the Public Health Law,
including but not limited to certified home health agencies, long term home
health care programs, acquired immune deficiency syndrome (AIDS) home
care programs, licensed home care service agencies, and limited licensed home
care service agencies;
(iii) hospices as defined in section 4002 of the Public Health Law; and
(iv) adult care facility under the Department’s regulatory authority, as set forth
in Article 7 of the Social Services Law.
(2) Personnel, for the purposes of this section, shall mean all persons employed or
affiliated with a covered entity, whether paid or unpaid, including but not limited
to employees, members of the medical and nursing staff, contract staff, students,
and volunteers, who engage in activities such that if they were infected with
COVID-19, they could potentially expose other covered personnel, patients or
residents to the disease.
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(3) Fully vaccinated, for the purposes of this section, shall be determined by the
Department in accordance with applicable federal guidelines and
recommendations. Unless otherwise specified by the Department, documentation
of vaccination must include the manufacturer, lot number(s), date(s) of
vaccination; and vaccinator or vaccine clinic site, in one of the following formats:
(i) record prepared and signed by the licensed health practitioner who
administered the vaccine, which may include a CDC COVID-19 vaccine card;
(ii) an official record from one of the following, which may be accepted as
documentation of immunization without a health practitioner’s signature: a
foreign nation, NYS Countermeasure Data Management System (CDMS), the
NYS Immunization Information System (NYSIIS), City Immunization Registry
(CIR), a Department-recognized immunization registry of another state, or an
electronic health record system; or
(iii) any other documentation determined acceptable by the Department.
(c) [FN1] Covered entities shall continuously require personnel to be fully vaccinated
against COVID-19, with the first dose for current personnel received by September 27,
2021 for general hospitals and nursing homes, and by October 7, 2021 for all other covered
entities absent receipt of an exemption as allowed below. Documentation of such
vaccination shall be made in personnel records or other appropriate records in
accordance with applicable privacy laws, except as set forth in subdivision (d) of this
section.
(d) Exemptions. Personnel shall be exempt from the COVID-19 vaccination requirements
set forth in subdivision (c) of this section as follows:
(1) Medical exemption. If any licensed physician or certified nurse practitioner
certifies that immunization with COVID-19 vaccine is detrimental to the health of
member of a covered entity’s personnel, based upon a pre-existing health
condition, the requirements of this section relating to COVID-19 immunization
shall be inapplicable only until such immunization is found no longer to be
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detrimental to such personnel member’s health. The nature and duration of the
medical exemption must be stated in the personnel employment medical record,
or other appropriate record, and must be in accordance with generally accepted
medical standards, (see, for example, the recommendations of the Advisory
Committee on Immunization Practices of the U.S. Department of Health and
Human Services), and any reasonable accommodation may be granted and must
likewise be documented in such record. Covered entities shall document medical
exemptions in personnel records or other appropriate records in accordance with
applicable privacy laws by: (1) September 27, 2021 for general hospitals and
nursing homes; and (ii) October 7, 2021 for all other covered entities. For all
covered entities, documentation must occur continuously, as needed, following
the initial dates for compliance specified herein, including documentation of any
reasonable accommodation therefor.
(e) Upon the request of the Department, covered entities must report and submit
documentation, in a manner and format determined by the Department, for the
following:
(1) the number and percentage of personnel that have been vaccinated against
COVID-19;
(2) the number and percentage of personnel for which medical exemptions have
been granted;
(3) the total number of covered personnel.
(f) Covered entities shall develop and implement a policy and procedure to ensure
compliance with the provisions of this section and submit such documents to the
Department upon request.
(g) The Department may require all personnel, whether vaccinated or unvaccinated, to
wear an appropriate face covering for the setting in which such personnel are working in
a covered entity. Covered entities shall supply face coverings required by this section at
no cost to personnel.
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Credits
Emergency rulemaking eff. Aug. 26, 2021, expires Nov. 23, 2021.
[FN1]
So in original.
Current with amendments included in the New York State Register, Volume XLIII, Issue
40 dated October 6, 2021. Some sections may be more current, see credits for details.
N.Y. Comp. Codes R. & Regs. tit. 10, § 2.61, 10 NY ADC 2.61
50
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EXHIBIT 3
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EXHIBIT 4
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------
DR. A., NURSE A., DR. C.,
NURSE D., DR. F., DR. G.,
THERAPIST I., DR. J.,
NURSE J., DR. M.,
NURSE N., DR. O., DR. P.,
TECHNOLOGIST P.,
DR. S., NURSE S., and
PHYSICIAN LIAISON X.,
Plaintiffs,
-v- 1:21-CV-1009
KATHY HOCHUL, Governor
of the State of New York, in
her official capacity, DR.
HOWARD A. ZUCKER,
Commissioner of the New York
State Department of Health, in
his official capacity, and
LETITIA JAMES, Attorney
General of the State of New
York, in her official capacity,
Defendants.
--------------------------------
APPEARANCES: OF COUNSEL:
THOMAS MORE SOCIETY CHRISTOPHER FERRARA, ESQ.
Attorneys for Plaintiffs
148-29 Cross Island Parkway
Whitestone, NY 11357
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THOMAS MORE SOCIETY MICHAEL MCHALE, ESQ.
Attorneys for Plaintiffs
10506 Burt Circle, Suite 110
Omaha, NE 68114
HON. LETITIA JAMES KASEY K. HILDONEN, ESQ.
New York State Attorney General RYAN W. HICKEY, ESQ.
Attorneys for Defendants Ass’t Attorneys General
The Capitol
Albany, NY 12224
DAVID N. HURD
United States District Judge
MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
On August 26, 2021, the New York State Department of Health adopted
an emergency regulation that required most healthcare workers to be
vaccinated against COVID-19 within the next thirty days. N.Y. COMP. CODES
R. & REGS. tit. 10, § 2.61(c) (2021). As relevant here, § 2.61 eliminated a
religious exemption included in the first iteration of this mandate.
On September 13, 2021, seventeen healthcare workers employed in New
York State (“plaintiffs”), all of whom object to the existing COVID-19 vaccines
on religious grounds, filed this official-capacity 42 U.S.C. § 1983 action
against New York State Governor Kathy Hochul (“Hochul”), New York State
Health Commissioner Howard A. Zucker (“Zucker”), and New York State
Attorney General Letitia James (“James”) (collectively “defendants”).
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Plaintiffs’ three-count verified complaint alleges that § 2.61 violates their
constitutional rights because it effectively forbids employers from considering
workplace religious accommodations under processes guaranteed by federal
law. Plaintiffs sought to enjoin defendants from, inter alia, enforcing § 2.61
“to the extent it categorically requires health care employers to deny or
revoke religious exemptions from COVID-19 vaccination mandates.”
On September 14, 2021, the Court issued a temporary restraining order
(“TRO”) to that effect, Dr. A. v. Hochul, 2021 WL 4189533 (N.D.N.Y.), and
ordered briefing on whether the TRO should be converted to a preliminary
injunction pending a resolution of the merits of plaintiffs’ constitutional
claims seeking a permanent injunction. The TRO was extended for good
cause to this date, October 12, 2021. Dkt. No. 15. The motion has been fully
briefed and will be decided on the basis of the submissions without oral
argument.
II. BACKGROUND 1
On June 25, 2021, then-Governor Andrew Cuomo rescinded the COVID-19
public health emergency declaration that had been in effect across New York
1 The facts are taken from plaintiffs’ verified complaint, Dkt. No. 1, which is tantamount to an
affidavit, see 28 U.S.C. § 1746, and from the declaration of Elizabeth Rausch-Phung, M.D., M.P.H.,
Dkt. No. 16. A review of these submissions did not reveal any genuine disputes over the essential
facts necessary to decide the motion. See, e.g., In re Defend H20 v. Town Bd. of Town of E. Hampton,
147 F. Supp. 3d 80, 96–97 (E.D.N.Y. 2015) (discussing circumstances in which an evidentiary
hearing on a preliminary injunction is unnecessary).
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State for the previous eighteen months. Compl. ¶ 16; N.Y. Exec. Order 210
(June 24, 2021). As defendants explain, Cuomo’s decision was based on
“declining hospitalization and [rates of COVID-19] positivity statewide, as
well as success in vaccination rates.” Rausch-Phung Decl., Dkt. No. 16 ¶ 19.
However, the end of the emergency declaration did not bring an end to
defendants’ exercise of their emergency powers. 2 Compl. ¶ 17. On August
18, 2021, Health Commissioner Zucker issued an “Order for Summary
Action” that required general hospitals and nursing homes to “continuously
require all covered personnel to be fully vaccinated against COVID-19.” Ex.
B to Compl. at 95–101 (the “August 18 Order”). The August 18 Order
included a medical exemption as well as an explicit religious exemption:
Religious exemption. Covered entities shall grant a
religious exemption for COVID-19 vaccination for
covered personnel if they hold a genuine and sincere
religious belief contrary to the practice of
immunization, subject to a reasonable accommodation
by the employer.
Id.; see also Compl. ¶ 20.
Just five days later, on August 23, 2021, New York State’s Public
Health & Health Planning Council (the “Health Council”), acting on a
summary basis pursuant to its statutory authority under the Public Health
2 The New York legislature has curbed the executive’s authority to issue new COVID-related
orders. See N.Y. Sess. Laws ch. 71 § 4.
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Law, published a proposed emergency regulation that would quickly be
adopted as § 2.61. 3 Id. ¶¶ 4–5. This proposal expanded the vaccination
requirement set forth in the August 18 Order to reach personnel in other
healthcare settings. Rausch-Phung Decl. ¶ 5. This proposal also eliminated
the religious exemption found in Zucker’s August 18 Order. See id.
On August 26, 2021, three days after its publication, the Health Council
adopted § 2.61, which superseded the August 18 Order and became effective
immediately. Rausch-Phung Decl. ¶ 5. According to defendants, the Health
Council’s emergency action was a necessary measure to control the continued
spread of Delta and other SARS-CoV-2 variants. Id. ¶¶ 8–21.
The seventeen plaintiffs are “practicing doctors, M.D.s fulfilling their
residency requirement, nurses, a nuclear medicine technologist, a cognitive
rehabilitation therapist and a physician’s liaison.” Compl. ¶ 36; see
also id. ¶¶ 38, 47, 56, 66, 74, 84, 91, 98, 108, 117, 128, 140, 149, 161, 171, 181,
188. They are employed by hospitals, nursing homes, and other New York
State entities that are subject to § 2.61. See id. ¶ 10.
Plaintiffs hold the sincere religious belief that they “cannot consent to be
inoculated . . . with vaccines that were tested, developed or produced with
fetal cell[ ] line[s] derived from procured abortions.” Compl. ¶ 35; see also
3 August 23 is also the date on which Cuomo resigned from office, Compl. ¶ 14, and when the
Food & Drug Administration (“FDA”) granted approval to the first COVID-19 vaccine for those age
sixteen and older, Rausch-Phung Decl. ¶ 33. Hochul has since assumed the governorship.
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id. ¶ 37 (detailing beliefs held in common by plaintiffs). According to
plaintiffs, the COVID-19 vaccines that are currently available violate these
sincere religious beliefs “because they all employ fetal cell lines derived from
procured abortion in testing, development or production.” Id. ¶¶ 9, 36; see
also Rausch-Phung Decl. ¶¶ 35–45 (acknowledging that fetal cell lines are
widely used in pharmaceutical development and were used in the testing and
production of current COVID-19 vaccines).
The complaint alleges that each plaintiff has been denied a religious
exemption, or had an existing religious exemption revoked, on the basis of
their employers’ application of § 2.61. Compl. ¶¶ 39–42, 49–51, 58–60, 67–68,
77–78, 85, 92–94, 102, 111–12, 118–23, 129–31, 142–43, 154–56, 162–63,
173–74, 183–85, 189. The complaint further alleges that each plaintiff has
been threatened with professional discipline, loss of licensure, admitting
privileges, reputational harm, and/or the imminent termination of their
employment as a result of their refusal to comply with § 2.61. Id. ¶¶ 43–46,
52–55, 61–65, 69–73, 79–83, 86–90, 95–97, 103–07, 113–16, 124–27, 135–39,
144–48, 157–60, 164–65, 168–70, 176–80, 186–87, 190–91.
III. LEGAL STANDARD
“A preliminary injunction is an extraordinary remedy never awarded as of
right.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To win
relief, the movant must ordinarily demonstrate: (1) a likelihood of irreparable
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harm; (2) either a likelihood of success on the merits or sufficiently serious
questions as to the merits plus a balance of hardships that tips decidedly in
their favor; (3) that the balance of hardships tips in their favor regardless of
the likelihood of success; and (4) that an injunction is in the public
interest. Page v. Cuomo, 478 F. Supp. 3d 355, 362–63 (N.D.N.Y. 2020).
However, in cases like this one, where the movants seek to enjoin
government action taken in the public interest pursuant to a statutory or
regulatory scheme, the less rigorous “serious questions” component of this
legal standard is unavailable. Otoe-Missouria Tribe of Indians v. N.Y. State
Dep’t of Fin. Servs., 769 F.3d 105, 110 (2d Cir. 2014). As the Second Circuit
has explained, “[t]his exception reflects the idea that governmental policies
implemented through legislation or regulations developed through
presumptively reasoned democratic processes are entitled to a higher degree
of deference and should not be enjoined lightly.” Id. (citation omitted).
Defendants’ opposition memorandum invokes a second exception to the
general rules governing preliminary injunctive relief. Defs.’ Opp’n, Dkt. No.
16-50 at 4, 11. 4 As defendants correctly note, a heightened standard can also
apply when the requested injunction (1) is “mandatory”; i.e., it will alter the
status quo by compelling some positive action; or (2) “will provide the movant
4 Pagination corresponds to CM/ECF.
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with substantially all of the relief sought and that relief cannot be undone
even if the defendant prevails at a trial on the merits.” Page, 478 F. Supp. 3d
at 363. When either condition is met, the movant must make a “clear” or
“substantial” showing of a likelihood of success on the merits, and must also
make a “strong showing” of irreparable harm. Id.
Upon review, however, it is not clear why this heightened requirement
should apply to plaintiffs’ request for preliminary injunctive relief. “An
injunction that enjoins a defendant from enforcing a regulation clearly
prohibits, rather than compels, government action by enjoining the future
enforcement.” Hund v. Cuomo, 501 F. Supp. 3d 185, 207 (W.D.N.Y. 2020)
(cleaned up). Nor have defendants articulated how this heightened standard
has been triggered. See generally Defs.’ Opp’n. Accordingly, the ordinary
rules applicable to “prohibitory” injunctions will be applied. See, e.g., Hund,
501 F. Supp. 3d at 207 (rejecting application of heightened standard where
plaintiff sought to enjoin application of COVID-19 Executive Order).
IV. DISCUSSION 5
Since its ratification in 1791, the First Amendment has protected religious
practitioners from government action that “discriminates against some or all
5 Although Eleventh Amendment immunity sometimes poses a bar to § 1983 relief against state
officials, the doctrine of Ex parte Young permits an official-capacity claim for prospective injunctive
relief to remedy an ongoing violation of federal constitutional law. See, e.g., Avitabile v. Beach, 277
F. Supp. 3d 326, 332 (N.D.N.Y. 2017).
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religious beliefs or regulates or prohibits conduct because it is undertaken for
religious reasons.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 532 (1993). And since Congress amended the statute in 1972,
Title VII of the Civil Rights Act of 1964 has explicitly required most
employers to reasonably accommodate an employee’s religious beliefs absent
evidence that doing so would pose an undue hardship. 42 U.S.C. § 2000e(j).
Plaintiffs contend that § 2.61 conflicts with these longstanding federal
protections. In plaintiffs’ view, § 2.61 “flagrantly disallows the religious
protections required by federal employment law and specifically deletes its
own prior offering of religious exemptions for covered health care
workers.” Pls.’ Mem., Dkt. No. 5-1 at 13. As plaintiffs explain, § 2.61 “forbids
each of their employers from even considering requests for religious
exemptions notwithstanding the contrary requirements of Title VII.” Id. at
10 (emphases omitted). According to plaintiffs, “the specific events leading to
[§ 2.61’s] final version show that it effectively targets religious opposition to
the available COVID-19 vaccines.” Id. at 12.
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A. Likelihood of Success & Irreparable Harm 6
Plaintiffs have asserted § 1983 claims under the Free Exercise Clause,
Compl. ¶¶ 192–209, the Supremacy Clause, id. ¶¶ 210–19, and the Equal
Protection Clause, id. ¶¶ 220–37. To warrant preliminary injunctive relief,
plaintiffs must show a likelihood of success on the merits of at least one of
these constitutional claims. See, e.g., L.V.M. v. Lloyd, 318 F. Supp. 3d 601,
618 (S.D.N.Y. 2018). 7
As an initial matter, however, the parties dispute whether a presumption
of irreparable harm should attach to these claims. Plaintiffs argue the
Supreme Court has recognized that “[t]he loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes irreparable
injury.” Pls.’ Mem. at 19 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)
(plurality opinion)). Defendants respond that the Second Circuit has not
“consistently presumed irreparable harm in cases involving allegations of the
6 Defendants’ threshold invocation of Jacobson v. Massachusetts, 197 U.S. 11 (1905), Zucht v.
King, 260 U.S. 174 (1922), and Prince v. Massachusetts, 321 U.S. 158 (1944) is misplaced. Defs.’
Mem. at 12–13. The Second Circuit has previously relied on this line of precedent to reject a Free
Exercise Clause challenge to vaccination requirements for schoolchildren. Phillips v. City of N.Y.,
775 F.3d 538 (2d Cir. 2015). And early in the COVID-19 pandemic a number of district courts,
including this one, relied on Jacobson to reject constitutional challenges to various COVID-19
emergency restrictions. See, e.g., Page v. Cuomo, 478 F. Supp. 3d 355 (N.D.N.Y. 2020). More
recently, however, the Supreme Court and the Second Circuit have both cautioned that courts should
not rely on Jacobson or its progeny to grant “special deference to the executive when the exercise of
emergency powers infringes on constitutional rights.” Agudath Israel of Am. v. Cuomo, 983 F.3d 620,
635 (2d Cir. 2020).
7 Because plaintiffs are likely to succeed on the merits of their Free Exercise and Supremacy
Clause claims, the Court declines to reach the merits of the Equal Protection Claim. See Defs.’ Mem.
at 18–19.
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abridgement of First Amendment rights” unless the injury flows from “a rule
or regulation that directly limits speech.” Defs.’ Opp’n at 25 (quoting Bronx
Household of Faith v. Bd. of Educ. of City of N.Y., 331 F.3d 342, 349 (2d Cir.
2003)).
To be sure, the existing precedent in this area of law is less than perfectly
clear. The question seems to arise most frequently in free speech cases, but
the Second Circuit has also applied the presumption in other constitutional
contexts. N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 486 (2d Cir.
2013) (identifying dispute over applicability of the presumption).
In short, as the Second Circuit explained in Jolly v. Coughlin, 76 F.3d 468
(2d Cir. 1996), the favorable presumption of irreparable harm arises only
after a plaintiff has shown a likelihood of success on the merits of a
constitutional claim. Id. at 482 (characterizing the presumption as one that
“flows from a violation of constitutional rights”).
“Thus, when a plaintiff seeks injunctive relief based on an alleged
constitutional deprivation, ‘the two prongs of the preliminary injunction
threshold merge into one . . . in order to show irreparable injury, plaintiff
must show a likelihood of success on the merits.’” Page, 478 F. Supp. 3d at
364 (quoting Turley v. Guiliani, 86 F. Supp. 2d 291, 295 (S.D.N.Y. 2000)).
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1. The Supremacy Clause & Title VII
The Supremacy Clause declares that federal law “shall be the supreme
Law of the Land . . . any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.” U.S. Const. Art. VI, cl 2. Although it “is not
the source of any federal rights and certainly does not create a cause of
action,” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 324–25
(2015) (cleaned up), the Supreme Court has long recognized that, “if an
individual claims federal law immunizes him from state regulation, the court
may issue an injunction upon finding the state regulatory actions
preempted,” id. at 326 (citing Ex parte Young, 209 U.S. 123, 155–56 (1908)).
Plaintiffs contend that § 2.61 runs afoul of the Supremacy Clause because
it is preempted by Title VII, which prohibits discrimination in employment on
the basis of “religion.” 42 U.S.C. § 2000e-2(a)(1)–(2). Under Title VII, “[t]he
term ‘religion’ includes all aspects of religious observance and practice, as
well as belief, unless an employer demonstrates that he is unable to
reasonably accommodate [ ] an employee’s . . . religious observance or practice
without undue hardship on the . . . employer’s business.” § 2000e(j).
This protection for religious belief means that “[a]n employer may not take
an adverse employment action against an applicant or employee because of
any aspect of that individual’s religious observance or practice unless the
employer demonstrates that it is unable to reasonably accommodate that
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observance or practice without undue hardship.” Equal Emp. Opportunity
Comm’n v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 776 (2015) (Alito,
J., concurring). Importantly, however, “Title VII does not demand mere
neutrality with regard to religious practices . . . . [r]ather, it gives them
favored treatment.” Id. at 775 (majority opinion). Thus, under certain
circumstances, Title VII “requires otherwise-neutral policies to give way to
the need for an accommodation.” Id.
Plaintiffs argue that § 2.61 conflicts 8 with Title VII’s religious protections
because it “conspicuously eliminates (and thereby forbids) any opportunity
for covered employees to even attempt to secure a reasonable accommodation
for their sincerely held religious objections to the currently available
COVID-19 vaccines.” Pl.’s Mem. at 7. Defendants respond that there is a
distinction between a so-called “religious exemption” and a “reasonable
accommodation.” Defs.’ Opp’n at 15 –16. According to defendants, “Title VII
does not entitle employees to a religious exemption—it only requires
employers to make reasonable accommodation so long as it can be provided
by the employer without undue hardship.” Id. at 16.
8 “In general, three types of preemption exist: (1) express preemption, where Congress has
expressly preempted local law; (2) field preemption, where Congress has legislated so
comprehensively that federal law occupies an entire field of regulation and leaves no room for state
law; and (3) conflict preemption, where local law conflicts with federal law such that it is impossible
for a party to comply with both or the local law is an obstacle to the achievement of federal
objectives.” N.Y. SMS Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97, 104 (2d Cir. 2010) (cleaned
up).
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Upon review, plaintiffs have established at this early stage of the
litigation that they are likely to succeed on the merits of this constitutional
claim. Of course, defendants are correct that there is a substantial difference
between a blanket “religious exemption” from a vaccination requirement and
the “reasonable accommodation” for religious beliefs imposed on employers by
Title VII. But defendants’ assertion that § 2.61 “does not implicate Title VII
at all” and “does not require covered entities to deny reasonable
accommodation requests” fails to grapple with how the broad scope of the
Health Council’s mandate has allegedly impacted plaintiffs.
The plain terms of § 2.61 do not make room for “covered entities” to
consider requests for reasonable religious accommodations. Instead, § 2.61
obligates all covered entities to “continuously require personnel to be fully
vaccinated against COVID-19.” And “personnel” is defined broadly, sweeping
in “all persons employed or affiliated with a covered entity, whether paid or
unpaid . . . who engage in activities such that if they were infected with
COVID-19, they could potentially expose other covered personnel, patients or
residents to the disease.”
Plaintiffs allege that some of their employers have revoked existing
religious exemptions and/or religious accommodations by pointing to the
State’s adoption of § 2.61. See, e.g., Compl. ¶¶ 39–40, 77. Plaintiffs also
allege that some of their employers have refused to consider exemption or
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accommodation requests because of § 2.61. See, e.g., id. ¶ 49. Although Title
VII certainly does not require an employer in all cases to “accommodate” an
employee by necessarily granting them an “exemption,” the statute does
require employers to entertain requests for religious accommodations and to
“reasonably” accommodate those requests absent a showing of undue
hardship. According to plaintiffs, their employers have refused to engage in
that process because of § 2.61.
Defendants also argue that § 2.61’s elimination of the religious exemption
language found in the August 18 Order brings it more in line with healthcare
workplace immunization requirements for measles and rubella. Although
fetal cell lines were used in the development of the rubella vaccine, there is
no religious exemption in the State regulations that require workers to be
immunized against this pathogen. Rausch-Phung Decl. ¶¶ 44, 47–48.
However, this argument conflates the merits of plaintiffs’ present
constitutional claims with a hypothetical Title VII anti-discrimination claim
for a religious accommodation. What matters here is not whether a religious
practitioner would win or lose a future Title VII lawsuit. What matters is
that plaintiffs’ current showing establishes that § 2.61 has effectively
foreclosed the pathway to seeking a religious accommodation that is
guaranteed under Title VII.
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In any event, plaintiffs have not alleged a religious objection to other
workplace vaccination requirements. Nor have defendants explained why the
State’s approach to immunization against measles and rubella necessarily
justifies an identical approach to SARS-CoV-2. 9 In sum, plaintiffs have
established that § 2.61 stands “as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.” California Fed.
Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 281 (1987). Accordingly,
plaintiffs are likely to succeed on the merits of this claim.
2. The First Amendment & The Free Exercise Clause
The First Amendment provides that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof.” U.S. Const. amend. I. The “free exercise” component of this First
Amendment guarantee has been incorporated against the States through the
Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
“The free exercise of religion means, first and foremost, the right to believe
and profess whatever religious doctrine one desires.” Emp. Div., Dep’t of
9 The State’s healthcare regulatory framework is not monolithic when it comes to workplace
immunization requirements. Although it may not be an explicit “religious exemption,” the relevant
regulation for “influenza season” only requires covered entities to “ensure that all personnel not
vaccinated against influenza for the current influenza season wear a surgical or procedure mask
while in areas where patients or residents are typically present.” N.Y. COMP. CODES R. & REGS.
tit. 10, § 2.59(d) (2014). It may be true that a hypothetical healthcare worker who sought a Title VII
religious accommodation from immunization against rubella would be rebuffed by their employer on
the basis of “undue hardship.” But the same hypothetical worker who objected on religious grounds
to vaccination against influenza—a respiratory disease broadly similar to COVID-19—could be
“reasonably accommodated” with a surgical mask.
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Hum. Res. of Or. v. Smith, 494 U.S. 872, 877 (1990). Accordingly, “religious
beliefs need not be acceptable, logical, consistent, or comprehensible to others
in order to merit First Amendment protection.” Thomas, 450 U.S. at 714.
To that end, the Free Exercise Clause “protect[s] religious observers
against unequal treatment” and against “laws that impose special disabilities
on the basis of religious status.” Espinoza v. Mont. Dep’t of Revenue, 140 S.
Ct. 2246, 2254 (2020) (citation omitted). However, the Free Exercise Clause
“does not relieve an individual of the obligation to comply with a valid and
neutral law of general applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or proscribes).” Smith, 763
F.3d at 877 (citation omitted).
A neutral and generally applicable law is subject to rational basis
review. Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 631 (2d Cir.
2020). Under that standard, the law “is presumed to be valid and will be
sustained if the [burden imposed] by the statute is rationally related to a
legitimate state interest.” Cent. Rabbinical Cong. of U.S. & Can. v. N.Y. City
Dep’t of Health & Mental Hygiene, 763 F.3d 183, 186 n.2 (2d Cir. 2014)
(citation omitted). “A law burdening religious conduct that is not both
neutral and generally applicable, however, is subject to strict scrutiny.” Id.
at 193. Under that standard, the government must establish that the law is
“justified by a compelling interest” and “narrowly tailored to advance that
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interest.” Id. at 186 n.2 (citation omitted). “Neutrality and general
applicability are interrelated, and . . . failure to satisfy one requirement is a
likely indication that the other has not been satisfied.” City of Hialeah, 508
U.S. at 531.
A law is not neutral if it is “specifically directed at [a] religious
practice.” Cent. Rabbinical Cong., 763 F.3d at 193 (citation omitted). To
determine whether a law is neutral, the court begins with the text, “for the
minimum requirement of neutrality is that a law not discriminate on its
face.” City of Hialeah, 508 U.S. at 533. A law discriminates on its face “if it
refers to a religious practice without a secular meaning discernable from the
language or context.” Id. Importantly, though, even a facially neutral law
may trigger heightened scrutiny if it “targets religious conduct for distinctive
treatment.” Id. at 534. Likewise, “[t]he general applicability requirement
prohibits the government from ‘in a selective manner impos[ing] burdens only
on conduct motivated by religious belief.” Cent. Rabbinical Cong., 763 F.3d
at 196 (citation omitted). Although “[a]ll laws are selective to some
extent, . . . categories of selection are of paramount concern when a law has
the incidental effect of burdening religious practice.” Id. at 197 (citation
omitted).
Plaintiffs contend that § 2.61 “effectively targets religious opposition to the
available COVID-19 vaccines.” Pls.’ Mem. at 12. In plaintiffs’ view, the
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vaccination requirement “flagrantly disallows the religious protections
required by federal employment law and specifically deletes its own prior
offering of religious exemptions for covered health care workers.” Id. at
13. Defendants respond that § 2.61 is facially neutral because it “contains no
reference to religion” and “applies to every employee of the covered
entities.” Defs.’ Opp’n at 17. According to defendants, the “object” of the
vaccination requirement “is to protect public health and safety by reducing
the incidence of COVID-19.” Id. at 18.
Upon review, plaintiffs have established at this early stage of the
litigation that § 2.61 is not a neutral law. As the Supreme Court has
explained, “the historical background of the decision under challenge, the
specific series of events leading to the enactment or official policy in question,
and the legislative or administrative history” are all relevant circumstantial
evidence in detecting a lack of neutrality. City of Hialeah, 508 U.S. at 540.
Zucker’s August 18 Order, which was imposed on a summary basis,
included medical and religious exemptions to COVID-19 vaccination. The
Health Council’s adoption of § 2.61, which was imposed on a similar
summary basis just eight days later, amended the vaccination mandate to
eliminate the religious exemption. This intentional change in language is the
kind of “religious gerrymander” that triggers heightened scrutiny.
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Plaintiffs have also established at this early stage of the litigation
that § 2.61 is not generally applicable. A law is “not generally applicable if it
is substantially underinclusive such that it regulates religious conduct while
failing to regulate secular conduct that is at least as harmful to the
legitimate government interests purportedly justifying it.” Cent. Rabbinical
Cong., 763 F.3d at 197; see also Blackhawk v. Pennsylvania, 381 F.3d 202,
209 (3d Cir. 2004) (“A law fails the general applicability requirement if it
burdens a category of religiously motivated conduct but exempts or does not
reach a substantial category of conduct that is not religiously motivated and
that undermines the purposes of the law to at least the same degree as the
covered conduct that is religiously motivated.”).
Section 2.61’s regulatory impact statement claims that “[u]nvaccinated
personnel in [healthcare] settings have an unacceptably high risk of both
acquiring COVID-19 and transmitting the virus to colleagues and/or
vulnerable patients or residents, exacerbating staffing shortages, and causing
unacceptably high risk of complications.” Ex. A to Compl. at 78.
But as plaintiffs point out, the medical exemption that remains in the
current iteration of the State’s vaccine mandate expressly accepts this
“unacceptable” risk for a non-zero segment of healthcare workers. Pls.’ Mem.
at 13. Although defendants claim that they expect the number of people in
need of a medical exemption to be low, Rausch-Phung Decl. ¶¶ 65–66, the
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Supreme Court has recently emphasized that “[c]omparability is concerned
with the risks various activities pose,” not the reasons for which they are
undertaken. Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021). Thus, absent
further factual development the Court cannot conclude that § 2.61 satisfies
the requirement of “general applicability.”
Finally, plaintiffs have established at this early stage of the litigation
that § 2.61 is likely to fail strict scrutiny. To satisfy strict scrutiny,
defendants must show that the challenged law advances “interests of the
highest order” and is “narrowly tailored” to achieve those interests. Fulton v.
City of Phila., Pa., 141 S. Ct. 1868, 1881 (2021) (quoting City of Hialeah, 508
U.S. at 546). “Put another way, so long as the government can achieve its
interests in a manner that does not burden religion, it must do so.” Id.
Defendants have satisfied the first component of this analysis. Roman
Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (“Stemming
the spread of COVID-19 is unquestionably a compelling interest.”). However,
they have failed to establish that § 2.61—and in particular, its intentional
omission of a religious exemption—is narrowly tailored to address that public
health concern.
“Narrow tailoring requires the government to demonstrate that a policy is
the ‘least restrictive means’ of achieving its objective.” Agudath Israel of Am.,
983 F.3d at 633 (quoting Thomas, 450 U.S. at 718). The asserted justification
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“must be genuine, not hypothesized or invented post hoc in response to
litigation.” United States v. Virginia, 518 U.S. 515, 533 (1996). “And the
government must show that it ‘seriously undertook to address the problem
with less intrusive tools readily available to it.’” Agudath Israel of Am., 983
F.3d at 633 (quoting McCullen v. Coakley, 573 U.S. 464, 494 (2014)).
Defendants have not made this showing. According to the “alternative
approaches” component of § 2.61’s regulatory impact statement, the Health
Council considered two alternatives: (1) daily testing before each shift; and
(2) wearing appropriately fitted N95 face masks at all times. Ex. A to Compl.
at 81; see also Defs.’ Opp’n at 21.
However, there is no adequate explanation from defendants about why the
“reasonable accommodation” that must be extended to a medically exempt
healthcare worker under § 2.61 could not similarly be extended to a
healthcare worker with a sincere religious objection. Fulton, 141 S. Ct. at
1881 (cautioning courts to “scrutinize[ ] the asserted harm of granting specific
exemptions to particular religious claimants”).
Nor have defendants explained why they chose to depart from similar
healthcare vaccination mandates issued in other jurisdictions that include
the kind of religious exemption that was originally present in the August 18
Order. Pl.’s Mem. at 17 (citing Illinois and California COVID-19 regulations
that include religious exemption language); see also Roman Catholic Diocese
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of Brooklyn, 141 S. Ct. at 67 (finding tailoring requirement unsatisfied where,
inter alia, the challenged restriction was “much tighter than those adopted by
many other jurisdictions hard-hit by the pandemic”); Mast v. Fillmore Cty.,
Minn., 141 S. Ct. 2430, 2433 (2021) (Gorsuch, J., concurring) (“It is the
government’s burden to show this alternative won’t work; not the
[challenger’s] to show it will.”).
In sum, “[t]o meet the requirement of narrow tailoring, the government
must demonstrate that alternative measures imposing lesser burdens on
religious liberty would fail to achieve the government’s interests, not simply
that the chosen route was easier.” Agudath Israel of Am., 983 F.3d at 633
(cleaned up). Defendants have not done so. Accordingly, plaintiffs are likely
to succeed on the merits of this constitutional claim.
B. The Balance of Hardships & The Public Interest
Plaintiffs have also satisfied the remaining elements necessary to warrant
preliminary injunctive relief. Where, as here, a governmental defendant is
the party opposing relief, “balancing of the equities merges into [the court’s]
consideration of the public interest.” SAM Party of N.Y. v. Kosinski, 987 F.3d
267, 278 (2d Cir. 2021).
First, the public interest lies with enforcing the guarantees enshrined in
the Constitution and federal anti-discrimination law. See, e.g., Paykina ex
rel. E.L. v. Lewin, 387 F. Supp. 3d 225, 245 (N.D.N.Y. 2019) (“The public
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interest generally supports granting a preliminary injunction where . . . a
plaintiff has established a clear likelihood of success on the merits and made
a showing of irreparable harm.”).
Second, the balance of hardships clearly favors plaintiffs. Defendants
argue that a preliminary injunction will hinder its “ongoing efforts to curb
the spread” of SARS-CoV-2. Defs.’ Opp’n at 26. According to defendants, the
spread of SARS-CoV-2 among health care workers “imposes staffing burdens
on already strained hospital and healthcare operations due to quarantining
requirements and potential length of illness when healthcare workers become
infected.” Id. at 26–27.
However, defendants acknowledge that § 2.61 still includes a medical
exemption that requires covered entities to make a “reasonable
accommodation.” As plaintiffs point out, defendants have not shown that
granting the same benefit to religious practitioners that was originally
included in the August 18 Order “would impose any more harm—especially
when Plaintiffs have been on the front lines of stopping COVID for the past
18 months while donning PPE and exercising other proper protocols in
effectively slowing the spread of the disease.” Pls.’ Mem. at 20.
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V. CONCLUSION 10
The question presented by this case is not whether plaintiffs and other
individuals are entitled to a religious exemption from the State’s workplace
vaccination requirement. Instead, the question is whether the State’s
summary imposition of § 2.61 conflicts with plaintiffs’ and other individuals’
federally protected right to seek a religious accommodation from their
individual employers.
The answer to this question is clearly yes. Plaintiffs have established
that § 2.61 conflicts with longstanding federal protections for religious beliefs
and that they and others will suffer irreparable harm in the absence of
injunctive relief. Tandon, 141 S. Ct. at 1297 (finding irreparable harm from
loss of free exercise rights for even minimal periods of time). Plaintiffs have
also satisfied the remaining elements necessary to obtain preliminary relief.
To reiterate, these conclusions have nothing to do with how an individual
employer should handle an individual employee’s religious objection to a
workplace vaccination requirement. But they have everything to do with the
proper division of federal and state power. Cf. Arizona v. United States, 567
U.S. 387, 398 (2012) (“Federalism, central to the constitutional design, adopts
10 The bond requirement is waived. See FED. R. CIV. P. 65(c).
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the principle that both the National and State Governments have elements of
sovereignty the other is bound to respect.”).
In granting a preliminary injunction, the Court recognizes that it may not
have the final word. Under 28 U.S.C. § 1292(a)(1), “Congress permits, as an
exception to the general rule, an immediate appeal from an interlocutory
order that either grants or denies a preliminary injunction.” N.Y. State Nat’l
Org. for Women v. Terry, 886 F.2d 1339, 1350 (2d Cir. 1989). 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.
Therefore, it is
ORDERED that
1. Plaintiffs’ motion to proceed pseudonymously is GRANTED 11;
2. Plaintiffs’ motion for a preliminary injunction is GRANTED;
3. Defendants, their officers, agents, employees, attorneys and successors
in office, and all other persons in active concert or participation with them,
are preliminarily ENJOINED from enforcing, threatening to enforce,
attempting to enforce, or otherwise requiring compliance with § 2.61 such
that:
11 Plaintiffs requested leave to proceed pseudonymously. Compl. ¶¶ 26–34. Defendants do not
oppose. Defs.’ Opp’n at 3 n.2.
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(a) Section 2.61 is suspended in operation to the extent that the
Department of Health is barred from enforcing any requirement that
employers deny religious exemptions from COVID-19 vaccination or
that they revoke any exemptions employers already granted
before § 2.61 issued;
(b) The Department of Health is barred from interfering in any way
with the granting of religious exemptions from COVID-19 vaccination
going forward, or with the operation of exemptions already granted;
and
(c) The Department of Health is barred from taking any action,
disciplinary or otherwise, against the licensure, certification, residency,
admitting privileges or other professional status or qualification of any
of the plaintiffs on account of their seeking or having obtained a
religious exemption from mandatory COVID-19 vaccination.
IT IS SO ORDERED.
Dated: October 12, 2021
Utica, New York.
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EXHIBIT 5
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EXHIBIT 6
Appx.94
Amendment I. Establishment of Religion; Free Exercise of..., USCA CONST Amend. I
United States Code Annotated
Constitution of the United States
Annotated
Amendment I. Religion; Speech and the Press; Assembly; Petition
U.S.C.A. Const. Amend. I
Amendment I. Establishment of Religion; Free Exercise of Religion; Freedom
of Speech and the Press; Peaceful Assembly; Petition for Redress of Grievances
Currentness
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress
of grievances.
<Historical notes and references are included in the full text document for this amendment.>
<For Notes of Decisions, see separate documents for clauses of this amendment:>
<USCA Const Amend. I--Establishment clause; Free Exercise clause>
<USCA Const Amend. I--Free Speech clause; Free Press clause>
<USCA Const Amend. I--Assembly clause; Petition clause>
U.S.C.A. Const. Amend. I, USCA CONST Amend. I
Current through PL 117-52.
End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.
Appx.95
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1
EXHIBIT 7
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§ 2000e-7. Effect on State laws, 42 USCA § 2000e-7
United States Code Annotated
Title 42. The Public Health and Welfare
Chapter 21. Civil Rights (Refs & Annos)
Subchapter VI. Equal Employment Opportunities (Refs & Annos)
42 U.S.C.A. § 2000e-7
§ 2000e-7. Effect on State laws
Currentness
Nothing in this subchapter shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment
provided by any present or future law of any State or political subdivision of a State, other than any such law which purports
to require or permit the doing of any act which would be an unlawful employment practice under this subchapter.
CREDIT(S)
(Pub.L. 88-352, Title VII, § 708, July 2, 1964, 78 Stat. 262.)
Notes of Decisions (51)
O’CONNOR’S ANNOTATIONS
California Fed. S&L Ass’n v. Guerra, 479 U.S. 272, 290 n.29 (1987). “We conclude that ‘permit’ in [Title VII] §708 [now 42
U.S.C. §2000e-7] must be interpreted to pre-empt only those state laws that expressly sanction a practice unlawful under Title
VII; the term does not pre-empt state laws that are silent on the practice.”
42 U.S.C.A. § 2000e-7, 42 USCA § 2000e-7
Current through PL 117-52.
End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.
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© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1
EXHIBIT 8
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STATE OF NEW YORK : DEPARTMENT OF HEALTH
------------------------------------------------------------------------------------
IN THE MATTER
ORDER FOR
OF SUMMARY
ACTION
COVERED ENTITIES IN THE PREVENTION
AND CONTROL OF THE 2019 NOVEL
CORONAVIRUS
-------------------------------------------------------------------------------------
WHEREAS the 2019 Novel Coronavirus (“COVID-19”) is an infection associated with fever
and signs and symptoms of pneumonia and other respiratory illness that is easily transmitted
from person to person, predominantly through droplet transmission, and has significant public
health consequences; and
WHEREAS COVID-19 is a global pandemic that, to date, has resulted in 2,195,903 documented
cases and 43,277 deaths in New York State alone; and
WHEREAS the Centers for Disease Control and Prevention (CDC) has identified a concerning
national trend of increasing circulation of the Delta COVID-19 variant; and
WHEREAS the U.S. Food and Drug Administration (FDA) granted Emergency Use
Authorizations (EUA) for Pfizer -BioNTech, Moderna, and Janssen COVID-19 vaccines which
have been shown to be safe and effective as determined by data from the manufacturers and
findings from large clinical trials; and
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WHEREAS while New York State has aggressively promoted vaccination since COVID-19
vaccines first became available in December 2020, current vaccination rates are not high enough
to prevent the spread of the Delta variant, which is approximately twice as transmissible as the
original SARS-CoV-2 strain; and
WHEREAS data show that unvaccinated individuals are approximately 5 times as likely to be
diagnosed with COVID-19 as are vaccinated individuals; and
WHEREAS those who are unvaccinated have over 10 times the risk of being seriously ill and
hospitalized with COVID-19; and
WHEREAS since early July, cases have risen 10-fold, and 95 percent of sequenced recent
positives in New York State were the Delta variant; and
WHEREAS certain settings, such as healthcare facilities, pose increased challenges and urgency
for controlling the spread of this disease because of the vulnerable patient and resident
populations that they serve; and
WHEREAS unvaccinated personnel in such settings have an unacceptably high risk of both
acquiring COVID-19 and transmitting such virus to colleagues and/or vulnerable patients or
residents; and
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WHEREAS based upon the foregoing, the Commissioner of Health of the State of New York is
of the Opinion that all entities identified in this Order (“covered entities”), must immediately
implement and comply with the requirements identified herein, and that failure to do so
constitutes a danger to the health, safety, and welfare of the people of the State of New York; and
WHEREAS the Commissioner of Health of the State of New York has determined that requiring
covered entities to immediately implement and comply with the requirements set forth herein
and cannot be achieved through alternative means, including the adoption of the Public Health
and Health Planning Council of emergency regulations, without delay, which would be
prejudicial to health, safety, and welfare of the people of the State of New York; and
WHEREAS it therefore appears to be prejudicial to the interest of the people to delay action for
fifteen (15) days until an opportunity for a hearing can be provided in accordance with the
provisions of Public Health Law Section (PHL) 12-a.
NOW, THEREFORE, THE HEALTH COMMISSIONER HEREBY ORDERS THAT: Pursuant
to PHL § 16:
(a) Definitions.
(1) Covered entity shall mean a general hospital or nursing home pursuant to section 2801 of
the Public Health Law.
(2) Covered Personnel. All persons employed or affiliated with a covered entity, whether
paid or unpaid, including but not limited to employees, members of the medical and
nursing staff, contract staff, students, and volunteers, who engage in activities such that if
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they were infected with COVID-19, they could potentially expose, patients, residents, or
personnel working for such entity to the disease.
(3) Fully vaccinated. Covered personnel are considered fully vaccinated for COVID-19 ≥ 2
weeks after receiving either (1) the second dose in a 2-dose series (e.g., Pfizer-BioNTech
or Moderna), or (2) a single-dose vaccine (e.g., Johnson & Johnson [J&J]/Janssen),
authorized for emergency use or approved by the U.S. Food and Drug Administration,
and holds an emergency use listing by the World Health Organization.
(4) Documentation of vaccination shall include:
(i) a record prepared and signed by the licensed health practitioner who administered
the vaccine, which may include a CDC COVID-19 vaccine card;
(ii) an official record from one of the following, which may be accepted as
documentation of immunization without a health practitioner’s signature: a
foreign nation, NYS Countermeasure Data Management System (CDMS), the
NYS Immunization Information System (NYSIIS), City Immunization Registry
(CIR), a Department-recognized immunization registry of another state, or an
electronic health record system; or
(iii) any other documentation determined acceptable by the Department. Unless
otherwise specified by the Department.
(iv) The following elements, unless otherwise specified by the Department:
manufacturer, lot number(s), date(s) of vaccination; and vaccinator or vaccine
clinic site.
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(b) Covered entities shall continuously require all covered personnel to be fully vaccinated
against COVID-19, with the first dose for current personnel received by September 27, 2021.
Documentation of such vaccination shall be made in personnel records or other appropriate
records in accordance with applicable privacy laws, except as set forth in section (c) of this
order.
(c) Limited exemptions to vaccination:
1. Medical exemption. If any licensed physician or certified nurse practitioner certifies that
immunization with COVID-19 vaccine is detrimental to a specific member of a covered
entity’s personnel, based upon a specific pre-existing health condition, the requirements
of this section relating to COVID-19 immunization shall be subject to a reasonable
accommodation of such health condition only until such immunization is found no longer
to be detrimental to the health of such member. The nature and duration of the medical
exemption must be stated in the personnel employment medical record and must be in
accordance with generally accepted medical standards, (see, for example, the
recommendations of the Advisory Committee on Immunization Practices of the U.S.
Department of Health and Human Services). Covered entities shall document medical
exemptions and any reasonable accommodation in personnel records or other appropriate
records in accordance with applicable privacy laws by September 27, 2021, and
continuously, as needed, thereafter.
2. Religious exemption. Covered entities shall grant a religious exemption for COVID-19
vaccination for covered personnel if they hold a genuine and sincere religious belief
contrary to the practice of immunization, subject to a reasonable accommodation by the
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employer. Covered entities shall document such exemptions and such reasonable
accommodations in personnel records or other appropriate records in accordance with
applicable privacy laws by September 27, 2021, and continuously, as needed, thereafter.
(d) Upon the request of the Department, covered entities must report the number and percentage
of covered personnel that have been vaccinated against COVID-19 and the number of
personnel for which medical or religious exemptions have been granted by covered entities in
a manner and format determined by the Department.
(e) Covered entities shall develop and implement a policy and procedure to ensure compliance
with the provisions of Order.
(f) The Department may require all covered personnel, whether vaccinated or unvaccinated, to
wear acceptable face coverings for the setting in which they work. Covered entities shall
supply acceptable face coverings required by this section at no cost to covered personnel.
FURTHER, I DO HEREBY give notice that any entity that receives notice of and is subject to
this Order is provided with an opportunity to be heard at 10:00 a.m. on September 2, 2021, via
videoconference, to present any proof that failure to implement and comply with the
requirements of this Order does not constitute a danger to the health of the people of the State of
New York. If any such entity desires to participate in such a hearing, please inform the
Department by written notification to Vaccine.Order.Hearing@health.ny.gov, New York State
Department of Health, Corning Tower, Room 2438, Governor Nelson A. Rockefeller Empire
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State Plaza, Albany, New York 12237, within five (5) days of their receipts of this Order. Please
include in the notification the email addresses of all individuals who will be representing or
testifying for the entity at the hearing so that an invitation to access the hearing remotely can be
provided.
DATED: Albany, New York NEW YORK STATE DEPARTMENT OF HEALTH
August 18, 2021
BY: ___________________________________________
HOWARD A. ZUCKER, M.D., J.D.
Commissioner of Health
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EXHIBIT 9
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Prevention of COVID-19 Transmission by Covered Entities
Effective date: 8/26/21
Pursuant to the authority vested in the Public Health and Health Planning Council and the
Commissioner of Health by Public Health Law Sections 225, 2800, 2803, 3612, and 4010, as
well as Social Services Law Sections 461 and 461-e, Title 10 (Health) of the Official
Compilation of Codes, Rules and Regulations of the State of New York, is amended, to be
effective upon filing with the Department of State, to read as follows:
Part 2 is amended to add a new section 2.61, as follows:
2.61. Prevention of COVID-19 transmission by covered entities.
(a) Definitions.
(1) “Covered entities” for the purposes of this section, shall include:
(i) any facility or institution included in the definition of “hospital” in section
2801 of the Public Health Law, including but not limited to general hospitals,
nursing homes, and diagnostic and treatment centers;
(ii) any agency established pursuant to Article 36 of the Public Health Law,
including but not limited to certified home health agencies, long term home health
care programs, acquired immune deficiency syndrome (AIDS) home care
programs, licensed home care service agencies, and limited licensed home care
service agencies;
(iii) hospices as defined in section 4002 of the Public Health Law; and
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(iv) adult care facility under the Department’s regulatory authority, as set forth in
Article 7 of the Social Services Law.
(2) “Personnel,” for the purposes of this section, shall mean all persons employed or
affiliated with a covered entity, whether paid or unpaid, including but not limited to
employees, members of the medical and nursing staff, contract staff, students, and
volunteers, who engage in activities such that if they were infected with COVID-19, they
could potentially expose other covered personnel, patients or residents to the disease.
(3) “Fully vaccinated,” for the purposes of this section, shall be determined by the
Department in accordance with applicable federal guidelines and recommendations.
Unless otherwise specified by the Department, documentation of vaccination must
include the manufacturer, lot number(s), date(s) of vaccination; and vaccinator or vaccine
clinic site, in one of the following formats:
(i) record prepared and signed by the licensed health practitioner who administered the
vaccine, which may include a CDC COVID-19 vaccine card;
(ii) an official record from one of the following, which may be accepted as
documentation of immunization without a health practitioner’s signature: a foreign
nation, NYS Countermeasure Data Management System (CDMS), the NYS
Immunization Information System (NYSIIS), City Immunization Registry (CIR), a
Department-recognized immunization registry of another state, or an electronic health
record system; or
(iii) any other documentation determined acceptable by the Department.
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(c) Covered entities shall continuously require personnel to be fully vaccinated against COVID-
19, with the first dose for current personnel received by September 27, 2021 for general hospitals
and nursing homes, and by October 7, 2021 for all other covered entities absent receipt of an
exemption as allowed below. Documentation of such vaccination shall be made in personnel
records or other appropriate records in accordance with applicable privacy laws, except as set
forth in subdivision (d) of this section.
(d) Exemptions. Personnel shall be exempt from the COVID-19 vaccination requirements set
forth in subdivision (c) of this section as follows:
(1) Medical exemption. If any licensed physician or certified nurse practitioner certifies
that immunization with COVID-19 vaccine is detrimental to the health of member of a
covered entity’s personnel, based upon a pre-existing health condition, the requirements
of this section relating to COVID-19 immunization shall be inapplicable only until such
immunization is found no longer to be detrimental to such personnel member’s health.
The nature and duration of the medical exemption must be stated in the personnel
employment medical record, or other appropriate record, and must be in accordance with
generally accepted medical standards, (see, for example, the recommendations of the
Advisory Committee on Immunization Practices of the U.S. Department of Health and
Human Services), and any reasonable accommodation may be granted and must likewise
be documented in such record. Covered entities shall document medical exemptions in
personnel records or other appropriate records in accordance with applicable privacy laws
by: (i) September 27, 2021 for general hospitals and nursing homes; and (ii) October 7,
2021 for all other covered entities. For all covered entities, documentation must occur
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continuously, as needed, following the initial dates for compliance specified herein,
including documentation of any reasonable accommodation therefor.
(e) Upon the request of the Department, covered entities must report and submit documentation,
in a manner and format determined by the Department, for the following:
(1) the number and percentage of personnel that have been vaccinated against COVID-
19;
(2) the number and percentage of personnel for which medical exemptions have been
granted;
(3) the total number of covered personnel.
(f) Covered entities shall develop and implement a policy and procedure to ensure compliance
with the provisions of this section and submit such documents to the Department upon request.
(g) The Department may require all personnel, whether vaccinated or unvaccinated, to wear an
appropriate face covering for the setting in which such personnel are working in a covered entity.
Covered entities shall supply face coverings required by this section at no cost to personnel.
Subparagraph (vi) of paragraph (10) of subdivision (b) of Section 405.3 of Part 405 is added to
read as follows:
(vi) documentation of COVID-19 vaccination or a valid medical exemption to such vaccination,
pursuant to section 2.61 of this Title, in accordance with applicable privacy laws, and making
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such documentation immediately available upon request by the Department, as well as any
reasonable accommodation addressing such exemption.
Paragraph (5) of subdivision (a) of Section 415.19 of Part 415 is added to read as follows:
(5) collects documentation of COVID-19 or documentation of a valid medical exemption to such
vaccination, for all personnel pursuant to section 2.61 of this title, in accordance with applicable
privacy laws, and making such documentation immediately available upon request by the
Department, as well as any reasonable accommodation addressing such exemption.
Paragraph (7) of subdivision (d) of Section 751.6 is added to read as follows:
(7) documentation of COVID-19 vaccination or a valid medical exemption to such vaccination,
pursuant to section 2.61 of this Title, in accordance with applicable privacy laws, and making
such documentation available immediately upon request by the Department, as well as any
reasonable accommodation addressing such exemption.
Paragraph (6) of subdivision (c) of Section 763.13 is added to read as follows:
(6) documentation of COVID-19 vaccination or a valid medical exemption to such vaccination,
pursuant to section 2.61 of this Title, in accordance with applicable privacy laws, and making
such documentation available immediately upon request by the Department, as well as any
reasonable accommodation addressing such exemption.
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Paragraph (7) of subdivision (d) of Section 766.11 is added to read as follows:
(7) documentation of COVID-19 vaccination or a valid medical exemption to such vaccination,
pursuant to section 2.61 of this Title, in accordance with applicable privacy laws, and making
such documentation available immediately upon request by the Department, as well as any
reasonable accommodation addressing such exemption.
Paragraph (8) of subdivision (d) of Section 794.3 is added to read as follows:
(8) documentation of COVID-19 vaccination or a valid medical exemption to such vaccination,
pursuant to section 2.61 of this Title, in accordance with applicable privacy laws, and making
such documentation available immediately upon request by the Department, as well as any
reasonable accommodation addressing such exemption.
Paragraph (v) of subdivision (q) of Section 1001.11 is added to read as follows:
(v) documentation of COVID-19 vaccination or a valid medical exemption to such vaccination,
pursuant to section 2.61 of this Title, in accordance with applicable privacy laws, and making
such documentation available immediately upon request by the Department, as well as any
reasonable accommodation addressing such exemption.
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Paragraph (18) of subdivision (a) of Section 487.9 of Title 18 is added to read as follows:
(18) documentation of COVID-19 vaccination or a valid medical exemption to such vaccination,
pursuant to section 2.61 of Title 10, in accordance with applicable privacy laws, and making
such documentation available immediately upon request by the Department, as well as any
reasonable accommodation addressing such exemption.
Paragraph (14) of subdivision (a) of Section 488.9 of Title 18 is added to read as follows:
(14) documentation of COVID-19 vaccination or a valid medical exemption to such vaccination,
pursuant to section 2.61 of Title 10, in accordance with applicable privacy laws, and making
such documentation available immediately upon request by the Department, as well as any
reasonable accommodation addressing such exemption.
Paragraph (15) of subdivision (a) of Section 490.9 of Title 18 is added to read as follows:
(15) Operator shall collect documentation of COVID-19 vaccination or a valid medical
exemption to such vaccination, pursuant to section 2.61 of Title 10, in accordance with
applicable privacy laws, and making such documentation available immediately upon request by
the Department, as well as any reasonable accommodation addressing such exemption.
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REGULATORY IMPACT STATEMENT
Statutory Authority:
The authority for the promulgation of these regulations is contained in Public Health Law
(PHL) Sections 225(5), 2800, 2803(2), 3612 and 4010 (4). PHL 225(5) authorizes the Public
Health and Health Planning Council (PHHPC) to issue regulations in the State Sanitary Code
pertaining to any matters affecting the security of life or health or the preservation and
improvement of public health in the state of New York, including designation and control of
communicable diseases and ensuring infection control at healthcare facilities and any other
premises.
PHL Article 28 (Hospitals), Section 2800 specifies that “hospital and related services
including health-related service of the highest quality, efficiently provided and properly utilized
at a reasonable cost, are of vital concern to the public health. In order to provide for the
protection and promotion of the health of the inhabitants of the state, pursuant to section three of
article seventeen of the constitution, the department of health shall have the central,
comprehensive responsibility for the development and administration of the state's policy with
respect to hospital and related services, and all public and private institutions, whether state,
county, municipal, incorporated or not incorporated, serving principally as facilities for the
prevention, diagnosis or treatment of human disease, pain, injury, deformity or physical
condition or for the rendering of health-related service shall be subject to the provisions of this
article.”
PHL Section 2803(2) authorizes PHHPC to adopt and amend rules and regulations,
subject to the approval of the Commissioner, to implement the purposes and provisions of PHL
Article 28, and to establish minimum standards governing the operation of health care facilities.
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PHL Section 3612 authorizes PHHPC to adopt and amend rules and regulations, subject to the
approval of the Commissioner, with respect to certified home health agencies, long term home
health care programs, acquired immune deficiency syndrome (AIDS) home care programs,
licensed home care service agencies, and limited licensed home care service agencies. PHL
Section 4010 (4) authorizes PHHPC to adopt and amend rules and regulations, subject to the
approval of the Commissioner, with respect to hospice organizations.
Social Service Law (SSL) Section 461 requires the Department to promulgate regulations
establishing general standards applicable to Adult Care Facilities (ACF). SSL Section 461-e
authorizes the Department to promulgate regulations to require adult care facilities to maintain
certain records with respect to the facilities residents and the operation of the facility.
Legislative Objectives:
The legislative objective of PHL Section 225 empowers PHHPC to address any issue
affecting the security of life or health or the preservation and improvement of public health in the
state of New York, including designation and control of communicable diseases and ensuring
infection control at healthcare facilities and any other premises. PHL Article 28 specifically
addresses the protection of the health of the residents of the State by assuring the efficient
provision and proper utilization of health services of the highest quality at a reasonable cost.
PHL Article 36 addresses the services rendered by certified home health agencies, long term
home health care programs, acquired immune deficiency syndrome (AIDS) home care programs,
licensed home care service agencies, and limited licensed home care service agencies. PHL
Article 40 declares that hospice is a socially and financially beneficial alternative to conventional
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curative care for the terminally ill. Lastly, the legislative objective of SSL Section 461 is to
promote the health and well-being of residents of ACFs.
Needs and Benefits:
The Centers for Disease Control and Prevention (CDC) has identified a concerning
national trend of increasing circulation of the SARS-CoV-2 Delta variant. Since early July, cases
have risen 10-fold, and 95 percent of the sequenced recent positives in New York State were the
Delta variant. Recent New York State data show that unvaccinated individuals are
approximately 5 times as likely to be diagnosed with COVID-19 compared to vaccinated
individuals. Those who are unvaccinated have over 11 times the risk of being hospitalized with
COVID-19.
The COVID-19 vaccines are safe and effective. They offer the benefit of helping to
reduce the number of COVID-19 infections, including the Delta variant, which is a critical
component to protecting public health. Certain settings, such as healthcare facilities and
congregate care settings, pose increased challenges and urgency for controlling the spread of this
disease because of the vulnerable patient and resident populations that they serve. Unvaccinated
personnel in such settings have an unacceptably high risk of both acquiring COVID-19 and
transmitting the virus to colleagues and/or vulnerable patients or residents, exacerbating staffing
shortages, and causing unacceptably high risk of complications.
In response to this significant public health threat, through this emergency regulation, the
Department is requiring covered entities to ensure their personnel are fully vaccinated against
COVID-19, and to document evidence thereof in appropriate records. Covered entities are also
required to review and make determinations on medical exemption requests, and provide
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reasonable accommodations therefor to protect the wellbeing of the patients, residents and
personnel in such facilities. Documentation and information regarding personnel vaccinations
as well as exemption requests granted are required to be provided to the Department immediately
upon request.
Costs for the Implementation of and Continuing Compliance with these Regulations to the
Regulated Entity:
Covered entities must ensure that personnel are fully vaccinated against COVID-19 and
document such vaccination in personnel or other appropriate records. Covered entities must also
review and make determinations on requests for medical exemptions, which must also be
documented in personnel or other appropriate records, as well as any reasonable
accommodations. This is a modest investment to protect the health and safety of patients,
residents, and personnel, especially when compared to both the direct medical costs and indirect
costs of personnel absenteeism.
Cost to State and Local Government:
The State operates several healthcare facilities subject to this regulation. Most county
health departments are licensed under Article 28 or Article 36 of the PHL and are therefore also
subject to regulation. Similarly, certain counties and the City of New York operate facilities
licensed under Article 28. These State and local public facilities would be required to ensure that
personnel are fully vaccinated against COVID-19 and document such vaccination in personnel or
other appropriate records. They must also review and make determinations on requests for
11
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medical exemptions, which must also be documented in personnel or other appropriate records,
along with any reasonable accommodations.
Although the costs to the State or local governments cannot be determined with precision,
the Department does not expect these costs to be significant. State facilities should already be
ensuring COVID-19 vaccination among their personnel, subject to State directives. Further, these
entities are expected to realize savings as a result of the reduction in COVID-19 in personnel and
the attendant loss of productivity and available staff.
Cost to the Department of Health:
There are no additional costs to the State or local government, except as noted above.
Existing staff will be utilized to conduct surveillance of regulated parties and to monitor
compliance with these provisions.
Local Government Mandates:
Covered entities operated by local governments will be subject to the same requirements
as any other covered entity subject to this regulation.
Paperwork:
This measure will require covered entities to ensure that personnel are fully vaccinated
against COVID-19 and document such vaccination in personnel or other appropriate records.
Covered entities must also review and make determinations on requests for medical exemptions,
which must also be documented in personnel or other appropriate records along with any
reasonable accommodations.
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Upon the request of the Department, covered entities must report the number and
percentage of total covered personnel, as well as the number and percentage that have been
vaccinated against COVID-19 and those who have been granted a medical exemption, along with
any reasonable accommodations. Facilities and agencies must develop and implement a policy
and procedure to ensure compliance with the provisions of this section, making such documents
available to the Department upon request.
Duplication:
This regulation will not conflict with any state or federal rules.
Alternative Approaches:
One alternative would be to require covered entities to test all personnel in their facility
before each shift worked. This approach is limited in its effect because testing only provides a
person’s status at the time of the test and testing every person in a healthcare facility every day is
impractical and would place an unreasonable resource and financial burden on covered entities if
PCR tests couldn’t be rapidly turned around before the commencement of the shift. Antigen tests
have not proven as reliable for asymptomatic diagnosis to date.
Another alternative to requiring covered entities to mandate vaccination would be to
require covered entities to mandate all personnel to wear a fit-tested N95 face covering at all
times when in the facility, in order to prevent transmission of the virus. However, acceptable face
coverings, which are not fit-tested N95 face coverings have been a long-standing requirement in
these covered entities, and, while helpful to reduce transmission it does not prevent transmission
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and; therefore, masking in addition to vaccination will help reduce the numbers of infections in
these settings even further.
Federal Requirements:
There are no minimum standards established by the federal government for the same or
similar subject areas.
Compliance Schedule:
These emergency regulations will become effective upon filing with the Department of
State and will expire, unless renewed, 90 days from the date of filing. As the COVID-19
pandemic is consistently and rapidly changing, it is not possible to determine the expected
duration of need at this point in time. The Department will continuously evaluate the expected
duration of these emergency regulations throughout the aforementioned 90-day effective period
in making determinations on the need for continuing this regulation on an emergency basis or
issuing a notice of proposed rule making for permanent adoption. This notice does not constitute
a notice of proposed or revised rule making for permanent adoption.
Contact Person: Ms. Katherine E. Ceroalo
NYS Department of Health
Bureau of Program Counsel, Regulatory Affairs Unit
Corning Tower Building, Room 2438
Empire State Plaza
Albany, NY 12237
(518) 473-7488
(518) 473-2019 –FAX
REGSQNA@health.ny.gov
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REGULATORY FLEXIBILITY ANALYSIS
Effect on Small Business and Local Government:
This regulation will not impact local governments or small businesses unless they
operate a covered entity as defined in the emergency regulation. Currently, 5 general hospitals,
79 nursing homes, 75 certified home health agencies (CHHAs), 20 hospices and 1,055 licensed
home care service agencies (LHCSAs), and 483 adult care facilities (ACFs) are small businesses
(defined as 100 employees or less), independently owned and operated affected by this rule.
Local governments operate 19 hospitals, 137 diagnostic and treatment facilities, 21 nursing
homes, 12 CHHAs, at least 48 LHCSAs, 1 hospice, and 2 ACFs.
Compliance Requirements:
Covered entities are required to ensure their personnel are fully vaccinated against
COVID-19, and to document evidence thereof in appropriate records. Covered entities are also
required to review and make determinations on medical exemption requests, along with any
reasonable accommodations.
Upon the request of the Department, covered entities must report the number and
percentage of total covered personnel, as well as the number and percentage that have been
vaccinated against COVID-19 and those who have been granted a medical exemption, along with
any reasonable accommodations. Facilities and agencies must develop and implement a policy
and procedure to ensure compliance with the provisions of this section, making such documents
available to the Department upon request.
Professional Services:
There are no additional professional services required as a result of this regulation.
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Compliance Costs:
Covered entities must ensure that personnel are fully vaccinated against COVID-19 and
document such vaccination in personnel or other appropriate records. Covered entities must also
review and make determinations on requests for medical exemptions, which must also be
documented in personnel or other appropriate records, along with any reasonable
accommodations. This is a modest investment to protect the health and safety of patients,
residents, and personnel, especially when compared to both the direct medical costs and indirect
costs of personnel absenteeism.
Economic and Technological Feasibility:
There are no economic or technological impediments to the rule changes.
Minimizing Adverse Impact:
As part of ongoing efforts to address the COVID-19 pandemic, regulated parties have
been a partner in implementing measures to limit the spread and/or mitigate the impact of
COVID-19 within the Department since March of 2020. Further, the Department currently has
an emergency regulation in place, which requires nursing homes and adult care facilities to offer
COVID-19 vaccination to personnel and residents, which has helped to facilitated vaccination of
personnel. Further, it is the Department’s understanding that many facilities across the State
have begun to impose mandatory vaccination policies. Lastly, on August 18, 2021, President
Biden announced that as a condition of participating in the Medicare and Medicaid programs, the
United States Department of Health and Human Services will be developing regulations
requiring nursing homes to mandate COVID-19 vaccination for workers.
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Small Business and Local Government Participation:
Due to the emergent nature of COVID-19, small businesses and local governments were
not consulted. If these regulations are proposed for permanent adoption, all parties will have an
opportunity to provide comments during the notice and comment period.
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RURAL AREA FLEXIBILITY ANALYSIS
Type and Estimated Numbers of Rural Areas:
While this rule applies uniformly throughout the state, including rural areas, for the
purposes of this Rural Area Flexibility Analysis (RAFA), “rural area” means areas of the state
defined by Exec. Law § 481(7) (SAPA § 102(10)). Per Exec. Law § 481(7), rural areas are
defined as “counties within the state having less than two hundred thousand population, and the
municipalities, individuals, institutions, communities, and programs and such other entities or
resources found therein. In counties of two hundred thousand or greater population ‘rural areas’
means towns with population densities of one hundred fifty persons or less per square mile, and
the villages, individuals, institutions, communities, programs and such other entities or resources
as are found therein.”
The following 42 counties have an estimated population of less than 200,000 based upon
2019 United States Census projections:
Allegany County Greene County Schoharie County
Broome County Hamilton County Schuyler County
Cattaraugus County Herkimer County Seneca County
Cayuga County Jefferson County St. Lawrence County
Chautauqua County Lewis County Steuben County
Chemung County Livingston County Sullivan County
Chenango County Madison County Tioga County
Clinton County Montgomery County Tompkins County
Columbia County Ontario County Ulster County
Cortland County Orleans County Warren County
Delaware County
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Essex County Oswego County Washington County
Franklin County Otsego County Wayne County
Fulton County Putnam County Wyoming County
Genesee County Rensselaer County Yates County
Schenectady County
The following counties of have population of 200,000 or greater, and towns with
population densities of 150 person or fewer per square mile, based upon 2019 United States
Census population projections:
Albany County Niagara County Saratoga County
Dutchess County Oneida County Suffolk County
Erie County Onondaga County
Monroe County Orange County
Reporting, recordkeeping, and other compliance requirements; and professional services:
Covered entities are required to ensure their personnel are fully vaccinated against
COVID-19, and to document evidence thereof in appropriate records. Covered entities are also
required to review and make determinations on medical exemption requests, along with any
reasonable accommodations.
Upon the request of the Department, covered entities must report the number and
percentage of total covered personnel, as well as the number and percentage that have been
vaccinated against COVID-19 and those who have been granted a medical exemption, along with
any reasonable accommodations. Facilities and agencies must develop and implement a policy
19
Appx.125
and procedure to ensure compliance with the provisions of this section, making such documents
available to the Department upon request.
Compliance Costs:
Covered entities must ensure that personnel are fully vaccinated against COVID-19 and
document such vaccination in personnel or other appropriate records. Covered entities must also
review and make determinations on requests for medical exemptions, which must also be
documented in personnel or other appropriate records, along with any reasonable
accommodations. This is a modest investment to protect the health and safety of patients,
residents, and personnel, especially when compared to both the direct medical costs and indirect
costs of personnel absenteeism.
Minimizing Adverse Impact:
As part of ongoing efforts to address the COVID-19 pandemic, regulated parties have
been a partner in implementing measures to limit the spread and/or mitigate the impact of
COVID-19 within the Department since March of 2020. Further, the Department currently has
an emergency regulation in place, which requires nursing homes and adult care facilities to offer
COVID-19 vaccination to personnel and residents, which has helped to facilitated vaccination of
personnel. Further, it is the Department’s understanding that many facilities across the State
have begun to impose mandatory vaccination policies. Lastly, on August 18, 2021, President
Biden announced that as a condition of participating in the Medicare and Medicaid programs, the
United States Department of Health and Human Services will be developing regulations
requiring nursing homes to mandate COVID-19 vaccination for workers.
20
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Rural Area Participation:
Due to the emergent nature of COVID-19, parties representing rural areas were not
consulted. If these regulations are proposed for permanent adoption, all parties will have an
opportunity to provide comments during the notice and comment period.
21
Appx.127
JOB IMPACT STATEMENT
Nature of Impact:
Covered entities may terminate personnel who are not fully vaccinated and do not have a valid
medical exemption and are unable to otherwise ensure individuals are not engaged in
patient/resident care or expose other covered personnel.
Categories and numbers affected:
This rule may impact any individual who falls within the definition of “personnel” who is
not fully vaccinated against COVID-19 and does not have a valid medical exemption on file with
the covered entity for which they work or are affiliated.
Regions of adverse impact:
The rule would apply uniformly throughout the State and the Department does not
anticipate that there will be any regions of the state where the rule would have a disproportionate
adverse impact on jobs or employment.
Minimizing adverse impact:
As part of ongoing efforts to address the COVID-19 pandemic, regulated parties have
been a partner in implementing measures to limit the spread and/or mitigate the impact of
COVID-19 within the Department since March of 2020. Further, the Department currently has
an emergency regulation in place, which requires nursing homes and adult care facilities to offer
COVID-19 vaccination to personnel and residents, which has helped to facilitated vaccination of
personnel. Further, it is the Department’s understanding that many facilities across the State
22
Appx.128
have begun to impose mandatory vaccination policies. Lastly, on August 18, 2021, President
Biden announced that as a condition of participating in the Medicare and Medicaid programs, the
United States Department of Health and Human Services will be developing regulations
requiring nursing homes to mandate COVID-19 vaccination for workers.
23
Appx.129
EMERGENCY JUSTIFICATION
The Centers for Disease Control and Prevention (CDC) has identified a concerning
national trend of increasing circulation of the SARS-CoV-2 Delta variant. Since early July, cases
have risen 10-fold, and 95 percent of the sequenced recent positives in New York State were the
Delta variant. Recent New York State data show that unvaccinated individuals are approximately
5 times as likely to be diagnosed with COVID-19 compared to vaccinated individuals. Those
who are unvaccinated have over 11 times the risk of being hospitalized with COVID-19.
The COVID-19 vaccines are safe and effective. They offer the benefit of helping to
reduce the number of COVID-19 infections, including the Delta variant, which is a critical
component to protecting public health. Certain settings, such as healthcare facilities and
congregate care settings, pose increased challenges and urgency for controlling the spread of this
disease because of the vulnerable patient and resident populations that they serve. Unvaccinated
personnel in such settings have an unacceptably high risk of both acquiring COVID-19 and
transmitting the virus to colleagues and/or vulnerable patients or residents, exacerbating staffing
shortages, and causing unacceptably high risk of complications.
In response to this significant public health threat, through this emergency regulation, the
Department is requiring covered entities to ensure their personnel are fully vaccinated against
COVID-19, and to document evidence thereof in appropriate records. Covered entities are also
required to review and make determinations on medical exemption requests, and provide
reasonable accommodations therefor to protect the wellbeing of the patients, residents and
personnel in such facilities. Documentation and information regarding personnel vaccinations as
well as exemption requests granted are required to be provided to the Department immediately
upon request.
24
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Based on the foregoing, the Department has determined that these emergency regulations
are necessary to control the spread of COVID-19 in the identified regulated facilities or entities.
As described above, current circumstances and the risk of spread to vulnerable resident and
patient populations by unvaccinated personnel in these settings necessitate immediate action and,
pursuant to the State Administrative Procedure Act Section 202(6), a delay in the issuance of
these emergency regulations would be contrary to public interest.
25
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EXHIBIT 10
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Case 1:21-cv-01009-DNH-ML Document 1 Filed 09/13/21 Page 1 of 202
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF NEW YORK
DR. A., NURSE A., DR. C., NURSE D., DR. F., )
DR. G, THERAPIST I., DR. J., NURSE J., DR. )
)
M., NURSE N., DR. O., DR. P.,
)
TECHNOLOGIST P., DR. S., NURSE S. and )
PHYSICIAN LIAISON X., )
)
Plaintiffs, ) Case No. 1:21-cv-1009 (DNH/ML)
)
v. )
)
KATHY HOCHUL, Governor of the State of New )
York, in her official capacity; HOWARD A. )
ZUCKER, Commissioner of the New York State )
Department of Health, in his official capacity; and )
LETITIA JAMES, Attorney General of the State of )
New York, in her official capacity, )
)
Defendants. )
VERIFIED COMPLAINT
Plaintiffs herein, proceeding under pseudonyms for the reasons set forth below,
complain of the Defendants as follows:
NATURE OF ACTION
1. This action seeks injunctive and declaratory relief from a New York State
Department of Health (DOH) regulation, promulgated on August 26, 2021, that purports to
nullify Title VII and the parallel protections of the New York State Human Rights Law and the
New York City Human Rights Law by mandating the COVID-19 vaccination of health care
professionals with no exemption for sincere religious beliefs that compel the refusal of such
vaccination (the “Vaccine Mandate”).
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2. This “emergency” regulation, promulgated almost three months after the former
Governor of New York ended the COVID-related “state disaster emergency” and rescinded all
his pertinent executive orders, negates even the protection for sincere religious beliefs in a prior
DOH regulation promulgated only days before, when the former Governor was still in office.
3. Plaintiffs have moved this Court for temporary and preliminary injunctive relief in
view of the September 27, 2021 deadline for compliance with the Vaccine Mandate, after which
plaintiffs, whose religious beliefs compel abstention from COVID-19 vaccination, will be
harmed irreparably by loss of employment and professional standing.
JURISDICTION AND VENUE
4. This action arises under the First and Fourteenth Amendments to the United States
Constitution and is brought pursuant to 42 U.S.C. § 1983. This action also arises under federal
statutory laws, namely 42 U.S.C. § 1985(3) and 42 U.S.C. § 2000e-2
5. This Court has jurisdiction over the instant matter pursuant to 28 U.S.C. §§ 1331
and 1343.enue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) because two of the
defendants reside in this District and a substantial part of the events or omissions giving rise to
Plaintiffs’ claims occurred in this District.
6. This Court is authorized to grant declaratory judgment under the Declaratory
Judgment Act, 28 U.S.C. §§ 2201–02, implemented through Rule 57 of the Federal Rules of
CivilProcedure.
7. This Court is authorized to grant Plaintiffs’ prayer for temporary, preliminary, and
permanent injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure.
8. This Court is authorized to grant Plaintiffs’ prayer for relief regarding costs,
including a reasonable attorney’s fee, pursuant to 42 U.S.C. § 1988.
2
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Case 1:21-cv-01009-DNH-ML Document 1 Filed 09/13/21 Page 3 of 202
THE PARTIES
Plaintiffs
9. As more particularly alleged below, the plaintiffs herein are medical professionals
whose sincere religious beliefs compel them to refuse vaccination with the available COVID-19
vaccines, all of which employ aborted fetus cell lines in their testing, development, or
production.
10. All of the plaintiffs are employed by entities with 15 more employees covered by
Title VII, which mandates the reasonable accommodation of sincere religious beliefs. Eight of
the seventeen plaintiffs reside and work in this District, while the others reside and/or work
variously in the Southern, Eastern and Western Districts.
Defendants
11. Defendant Kathy Hochul (Hochul) is Governor of the State of New York who, as
the State’s chief executive, is responsible for the execution of its laws and regulations,
including the challenged vaccine mandate, and for the approval of all executive branch policies
and directives, including those of the DOH pertaining to the vaccine mandate. At all pertinent
times Hochul has acted and will act under color of state law. Defendant Hochul’s principal
place of business is located at the State Capitol Building, Albany, New York. She is sued in her
official capacity.
12. Defendant Howard A. Zucker (Zucker) is Commissioner of Health for the DOH. He
is responsible for promulgation and enforcement of the challenged vaccine mandate. At all
pertinent times Zucker has acted and will act under color of state law. Defendant Zucker’s
principal place of business is located at 3959 Broadway, New York, NY 10032. He is sued in
his official capacity.
3
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Case 1:21-cv-01009-DNH-ML Document 1 Filed 09/13/21 Page 4 of 202
13. Defendant LETITIA JAMES (James) is the Attorney General for the State of New
York, the State’s highest-ranking law enforcement officer charged with overall supervision of
the enforcement of the challenged vaccine mandate and other laws of the State of New York. At
all times relevant to this Complaint, James is and was acting under color of State law. Defendant
James’ principal place of business is located at the State Capitol Building, Albany, New York.
She is sued in her official capacity.
BACKGROUND
“No one should be forced to be vaccinated against their will both because of the
constitutional right to refuse treatment, and pragmatically because forced
vaccination will deter at least some people from seeking medical help when they
need it.”
“Following this flawed logic, several state-based proposals have sought to address
any ‘public health emergency,’ … [by] resort[ing] to punitive, police-state tactics,
such as forced examinations, vaccination and treatment, and criminal sanctions
for those individuals who did not follow the rules.”
-The American Civil Liberties Union in 2008
(before it became the Anti-Civil Liberties Union)
The Cuomo Administration and the
“Public Health Emergency” Come to an End
14. On August 23, 2021, the People of the State of New York were definitively rescued
from the nearly eighteen-month-long medical dictatorship of ex-Governor Cuomo, who
resigned in disgrace and forfeited the Emmy Award for his press conference “performances” as
the savior of New York from the coronavirus.1
15. The legacy of Cuomo’s medical dictatorship was the second highest COVID death
rate per 100,000 in the country—with New Jersey in first place under the equally draconian and
1
See Nick Niedzwiaek, “Cuomo Loses Emmy following scandal, resignation,” POLITICO,
August 24, 2021, https://www.politico.com/states/new-york/albany/story/2021/08/24/cuomo-
loses-emmy-following-scandal-resignation-1390423
4
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Case 1:21-cv-01009-DNH-ML Document 1 Filed 09/13/21 Page 5 of 202
still-ongoing medical dictatorship of Governor Murphy.2 There is an ongoing FBI investigation
into official concealment of the 15,000 COVID deaths caused by Cuomo’s order to return
COVID-positive patients to nursing homes after their discharge from the hospital.3
16. On June 25, 2021, two months before his last day in office, Cuomo finally
rescinded his declaration of a “State disaster emergency”—fifteen months after it was issued—
along with all the executive orders that followed. There is no longer a public health emergency
in the State of New York. Despite the incessant media fearmongering over the “Delta variant”
and now the “Mu variant,” on September 7, 2021, only 47 deaths out of a state population of
almost 20,000,000 could be attributed (however loosely) to the virus.4
The Vaccination Mandate
Supersedes the Prior Health Order
17. The end of the Cuomo administration, however, has apparently not been
accompanied by any institutional awareness of the failure of his policies to improve the lot of
New Yorkers during the pandemic as compared to virtually every other State in the Union. On
the contrary, the defendant Health Commissioner, Howard A. Zucker, and Cuomo’s successor
as Governor, defendant Governor Kathy Hochul (Hochul), continue to behave as if the “disaster
emergency” had never ended—and never will end.
18. Solely on the pretext of what the DOH’s Public Health and Health Planning
Council (“the Health Council”) deems “a concerning national trend of increasing circulation of
the SARS-CoV-2 Delta variant,” Zucker and the DOH, with the assistance of defendant
2
See https://www.statista.com/statistics/1109011/coronavirus-covid19-death-rates-us-by-state/.
New York was only recently bumped to third worst in the nation, but only barely, by Mississippi.
3
See Michael Gold and Ed Shanahan, “What We Know About Cuomo’s Nursing Home
Scandal,” August 4, 2021, https://www.nytimes.com/article/andrew-cuomo-nursing-home-
deaths.html
4
See https://www.worldometers.info/coronavirus/usa/new-york/
5
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Case 1:21-cv-01009-DNH-ML Document 1 Filed 09/13/21 Page 6 of 202
Attorney General Letitia James and the approval of Hochul as the State’s chief executive, are
now enforcing the Health Council’s proposed COVID-19 “emergency” regulation, the aforesaid
Vaccine Mandate, effective only days ago, on August 26, 2021.
19. The Vaccine Mandate orders the COVID-19 vaccination of the “personnel” of all
“covered entities” in the field of medical and health services, including the Plaintiffs and all the
hospitals, clinics, or private practices with which they are associated. See Exhibit A to this
Complaint and NYCRR, Title 10, Part 2, § 2.61 (“the Vaccine Mandate”).
20. The Vaccine Mandate excludes any religious exemption from COVID-19
vaccination but permits medical exemptions. Yet, only days before, the superseded Public
Health Order issued in the waning days of the Cuomo administration (the “prior Health
Order”)—one of the few things he got right—provided a broad and indeed constitutionally
required religious exemption:
Religious exemption. Covered entities shall grant a religious exemption for
COVID-19 vaccination for covered personnel if they hold a genuine and sincere
religious belief contrary to the practice of immunization, subject to a reasonable
accommodation by the employer. Covered entities shall document such
exemptions and such reasonable accommodations in personnel records or other
appropriate records in accordance with applicable privacy laws by September 27,
2021, and continuously, as needed, thereafter.
See Exhibit B to this Complaint (emphasis added)
21. The Vaccination Mandate declares that “Covered entities shall continuously
require personnel to be fully vaccinated against COVID-19, with the first dose for current
personnel received by September 27, 2021 for general hospitals and nursing homes, and by
October 7, 2021 for other covered entities absent receipt of an exemption.” Mandate at 2.61 (c)
(emphasis added).
22. Ominously enough, by “continuously… fully vaccinated” the Vaccine Mandate
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appears to contemplate however many “booster shots” of COVID vaccine federal and state
health bureaucrats demand: “‘Fully vaccinated,’ for the purposes of this section, shall be
determined by the Department in accordance with applicable federal guidelines and
recommendations.” Id. at § 3.
23. In the State of Israel, where COVID vaccines are already failing massively to
“contain the virus,” the national government has announced that “fully vaccinated” now means
three shots.5 Or perhaps four shots very soon, as Israel’s top health expert suggests.6 In this
country, the Biden administration is already promoting the three shots = “fully vaccinated”
narrative: “It will make you safer, and for longer, and it will help us end the pandemic faster,”
said Biden said in a speech on August 18.7
24. As pleaded more particularly below, the Vaccine Mandate purports to override
federal protections under Title VII, commanding employers to deny religious accommodation
of sincere religious objections to vaccination—a blatant violation of the Supremacy Clause as
well as the Free Exercise Clause. The Vaccine Mandate even nullifies parallel state law
protections under the New York Human Rights Law and the New York City Human Rights
Law.
25. Only days after the prior Health Order had declared “Covered entities shall grant a
religious exemption” in recognition of federal and state law, the Vaccine Mandate effectively
declared that “covered entitles” shall not grant a religious exemption. The targeting of a large
5
“Three doses not two: Israel sets new benchmark for full vaccination. It is on India’s horizon as
well,” The Times of India, September 1, 2021 @ https://timesofindia.indiatimes.com/blogs/toi-
editorials/three-doses-not-two-israel-sets-new-benchmark-for-full-vaccination-it-is-on-indias-
horizon-as-well/
6
“New normal: Israel's health expert says fourth shot of Covid vaccine needed,” September 5,
2021, Wio News, https://www.wionews.com/world/new-normal-israels-health-expert-says-
fourth-shot-of-covid-vaccine-needed-410904
7
https://www.politico.com/news/2021/08/18/biden-recommends-covid-booster-shots-505911
7
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Case 1:21-cv-01009-DNH-ML Document 1 Filed 09/13/21 Page 8 of 202
class of religious objectors to mandatory vaccination among health professionals, who are very
knowledgeable on this subject—and notably at least 20% of the health care workforce in New
York8—is plainly evident. Yet any ill-informed college student can obtain a religious
exemption from a panoply of vaccinations simply by filing a statement that “he/she objects to
immunization due to his/her religious beliefs.” See Public Health Law § 2165.
Reasons for Proceeding with Pseudonyms
26. The same “front line” health care workers hailed as heroes by the media for
treating COVID patients before vaccines were available, including the Plaintiffs herein, are now
vilified by the same media as pariahs who must be excluded from society until they are
vaccinated against their will.
27. The Vaccine Mandate emerges in the context of an atmosphere of fear and
irrationality in which the unvaccinated are threatened with being reduced to a caste of
untouchables if they will not consent to being injected, even “continuously,” with vaccines that
violate their religious beliefs, are clearly not as effective as promised, and have known and
increasingly evident risks of severe and even life-threatening side effects, including blood clots9
and what the CDC admits is “a ‘likely association’ between a rare heart inflammatory condition
in adolescents and young adults [under age 30] mostly after they’ve received their second
Covid-19 vaccine shot…”10
8
See letter to defendants Zucker and Hochul from numerous members of the State Assembly @
https://www.scribd.com/document/523955400/COVID-Vaccination-Letter#from_embed
9
Cf. authoritative study in the prestigious journal Nature: “Antibody epitopes in vaccine-
induced immune thrombotic thrombocytopaenia,” July 7, 2021; available at
https://www.nature.com/articles/s41586-021-03744-4
10
See Berkeley Lovelace, Jr. “CDC safety group says there’s a likely link between rare heart
inflammation in young people after Covid shot,” CNBC, June 23, 2021 @
https://tinyurl.com/sse5zsr9
8
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28. With caution thrown to the winds, everyone—the young and healthy, the old, the
previously recovered and naturally immune, even pregnant and breastfeeding women—is now
being pressured by governments, businesses and educational institutions to submit to COVID-
19 vaccination with no assessment of the risks or benefits for each individual or any
consideration of medical necessity or contraindication in each particular case. Even the smallest
children, at virtually no risk from the virus, are to be vaccinated as soon as a rushed approval
can be obtained from the FDA.
29. For the sake of forcing people to be inoculated with novel vaccines regardless of
risk or benefit, college admissions are being revoked, career paths blocked, employment
terminated, and lives ruined on a vast scale. Nothing like this has ever been seen in our nation.
30. And yet the CDC now admits that the COVID vaccines do not prevent viral
transmission or infection, especially by the “Delta variant.”11
31. As things now stand, according to “public health authorities” the vaccinated can
infect the unvaccinated, the unvaccinated can infect the vaccinated, both the vaccinated and the
unvaccinated can infect each other, and everyone must wear masks indoors in “high
transmission” areas—that is, virtually the entire country12—as if no one at all had been
vaccinated.13 And with both the “fully vaccinated” and the unvaccinated still contracting
COVID, “continuous” “booster shots” of the same less-than-miraculous vaccines, to which
11
Frank Diamond, Infection Control Today, “Vaccines Not as Effective against the Delta Variant,
say CDC Data,” August 25, 2021 @ https://www.infectioncontroltoday.com/view/vaccines-not-
as-effective-against-delta-variant-says-cdc-data
12
See CDC Map at https://www.usatoday.com/in-depth/graphics/2021/07/29/cdc-mask-
guidelines-map-high-covid-transmission-county/5400268001/
13
See “When You’ve Been Fully Vaccinated,” https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/fully-vaccinated.html
9
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plaintiffs have the same religious objections, are doubtless on the way, accompanied by further
government mandates.
32. In the midst of this regulatory muddle, combined with unreasoning official coercion
and widespread, media-generated panic, plaintiffs seek leave of court to proceed anonymously as
they run the risk of ostracization, threats of harm, immediate firing and other retaliatory
consequences if their names become known. This is shown by the following examples of a
pervasive climate of fear and loathing of the unvaccinated:
MSNBC guest Frank Schaeffer stating that those who are “anti-vaccine” are
“bio terrorists” who should be the target of “Drone strikes.”14
In the Eastern District of New York, where two of the Plaintiffs reside, an
explicit death threat was made in a comment that had to be deleted (likely for
fear of liability on the part of the publishers) (Exhibit C)15
Mayor de Blasio, announcing his “vaccine passport” for New York City,
which affects several of the plaintiffs herein, declared that “If you want to
participate in our society fully, you’ve got to get vaccinated.”16
On ABC News, commentator Margaret Hoover declared that government, by
withholding all benefits from the unvaccinated, should “just make it almost
impossible for people to—to live their lives without being protected and
protecting the rest of us.”17
On CNN, commentator Don Lemon stated to Chris Cuomo that “[If ou] don’t
get the vaccine, you can’t go to the supermarket. Don’t have the vaccine, can’t
go to the ball game. Don’t have a vaccine, can’t go to work. You don’t have a
vaccine, can’t come here. No shirt, no shoes, no service.”18
14
https://www.breitbart.com/politics/2021/09/10/msnbc-guest-calls-drone-strikes-americans-
opposed-vaccine-mandates/
15
https://riverheadlocal.com/2021/09/04/protest-outside-riverhead-hospital-draws-crowd-of-
vaccine-mandate-opponents/
16
See video @ https://tinyurl.com/j4npw5c h
17
This Week,” July 25, 2021, https://abcnews.go.com/Politics/week-transcript-25-21-speaker-
nancy-pelosi-sen/story?id=79045738
18
https://www.realclearpolitics.com/video/2021/08/01/don_lemon_no_shirt_no_shoes_no_
vaccine_no_service.html
10
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On his late night “comedy” show Jimmy Kimmel stated that the unvaccinated
who contract COVID should be allowed to die rather than being admitted to
the hospital: “Rest in peace, wheezy.”19 The audience roared its approval.
Kimmel offered no such advice to the millions who seek emergency medical
treatment after disregarding constant public health warnings against smoking,
drinking, drug abuse, and junk food-induced Type II diabetes.
In The Week, Ryan Cooper declared that “Anti-vaxxers” (i.e. people who
decline the COVID vaccines) “should be exiled from society until they get
their shots, and their efforts to intimidate people against controlling the
pandemic should be met with massive resistance.”20
33. Furthermore, plaintiffs’ allegations below involve sensitive personal medical
information concerning their vaccination status, the presence of antibodies, and whether they are
breastfeeding or intending to become pregnant.
34. Under these circumstances, plaintiffs clearly meet the criteria for permission to
proceed anonymously. See Memorandum of Law in Support of this application.
Plaintiffs’ Common Religious Beliefs Opposing
Compulsory COVID-19 Vaccination
35. The following allegations detail plaintiffs’ sincere religious conviction that they
cannot consent to be inoculated, “continuously” or otherwise, with vaccines that were tested,
developed or produced with fetal cells line derived from procured abortions, and the drastic
consequences they now face absent emergency injunctive relief.
36. The seventeen plaintiffs in this action—practicing doctors, M.D.s fulfilling their
residency requirement, nurses, a nuclear medicine technologist, a cognitive rehabilitation
therapist and a physician’s liaison—are united in their conscientious religious objection as
Christians to being inoculated at all, much less “continuously,” with any of the available
19
https://www.westernjournal.com/late-night-host-ghoulishly-mocks-sick-unvaccinated-rest-
peace-wheezy/
20
https://theweek.com/coronavirus/1002909/theres-1-obvious-solution-to-the-delta-variant-
mandatory-vaccination
11
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COVID-19 vaccines because they all employ fetal cell lines derived from procured abortion in
testing, development or production of the vaccines. In particular:
Johnson & Johnson/Janssen: Fetal cell cultures are used to produce and
manufacture the J&J COVID-19 vaccine and the final formulation of this
vaccine includes residual amounts of the fetal host cell proteins (≤0.15 mcg)
and/or host cell DNA (≤3 ng).
Pfizer/BioNTech: The HEK-293 abortion-related cell line was used in
research related to the development of the Pfizer COVID-19 vaccine.
Moderna/NIAID: Aborted fetal cell lines were used in both the development
and testing of Moderna’s COVID-19 vaccine.
37. Plaintiffs hold in common the following sincere religious beliefs concerning
abortion-connected vaccines:
a) They oppose abortion under any circumstances, as they believe that abortion
is the intrinsically evil killing of an innocent, and thus they also oppose the
use of abortion-derived fetal cell lines for medical purposes and abortion-
derived fetal stem cell research.
b) It would be a violation of their deeply held religious beliefs and moral
consciences to take any of the available COVID-19 vaccines given their use of
abortion-derived fetal cell lines in testing, development, or production.
c) By receiving one of the COVID vaccines currently available, all of which are
abortion-connected, they believe they would be cooperating with the evil of
abortion in a manner that violates their consciences and that they would sin
gravely if they acted against their consciences by taking any of these vaccines.
d) They agree with the teaching of spiritual leaders, including certain Catholic
bishops, who urge Christians to refuse said vaccines to avoid cooperation in
12
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abortion and to bear witness against it without compromise, and who defend
the right to a religious exemption from vaccination with such vaccines.
e) They do not accept the opinion—expressed by certain other Catholic bishops,
the Pope included—that there is a therapeutically proportional reason to resort
to abortion-connected vaccines which can justify “remote” cooperation in
abortion. They reject as a matter of religious conviction any medical
cooperation in abortion, no matter how “remote.”21
f) They believe in the primacy of conscience in this matter. While one may
personally conclude that recourse to abortion-connected vaccines can be
justified in his or her case, vaccination is not morally obligatory and must be
voluntary, and those who in conscience refuse vaccination need only take
other protective measures to avoid spreading the virus.22
g) Although they are not “anti-vaxxers” who oppose all vaccines, they believe as
a matter of religious conviction that the ensouled human person, made in the
image and likeness of God, is inviolable as a temple of the Holy Ghost and
that civil authorities have no right to force anyone to be medicated or
vaccinated against his or her will, whether or not the medication or vaccine is
abortion-connected.
21
See, Exhibit D (collecting statements of Catholic prelates, who call for conscientious abstention
from abortion-connected vaccines).
22
See, “Note on the Morality of Using Some Anti-COVID-19 Vaccines,”
https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_202012
21_nota-vaccini-anticovid_en.html
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h) A risk-benefit analysis factors into each person’s formulation of a
conscientious religious position on the morality of vaccinations.23 Plaintiffs
are all aware of the vaccines’ side effects, which can be quite serious, their
fading efficacy, requiring “booster shots,” their evident inability to prevent
transmission or infection, (see Exhibit F)24 and the fact that natural immunity
is likely more protective than injections with the available COVID-19
vaccines.25 These medical facts inform Plaintiffs’ religious conviction against
involuntary or coerced vaccination as an invasion of bodily autonomy
contrary to their religious beliefs. Given that the Vaccine Mandate requires
that employers insure that employees are “continuously” “fully vaccinated”—
as many times as the government advises—Plaintiffs now reasonably fear that
“booster shots” of the same vaccines they consider immoral will soon be
demanded by the government as a condition of employment and even normal
life in society, as is already the case with the original vaccines.
Plaintiff “Dr. A.”
38. Plaintiff A., M.D. (“Dr. A.”), who is Catholic, is a board-certified Anatomic and
Clinical Pathologist on staff at a private hospital in the Northern District, where he performs
pathology testing and diagnosis under contract with the hospital.
23
See, “A Letter from the Colorado Bishops on COVID-19 Vaccine Mandates,” August 5, 2021
@ https://cocatholicconference.org/a-letter-from-the-bishops-on-covid-19-vaccine-mandates/
24
On August 5, 2021, during a CNN interview, CDC Director Rochelle Walensky stated that
because of the new spread of the delta variant, “what [the COVID vaccines] can’t do anymore is
prevent transmission,” (emphasis added),
http://www.cnn.com/TRANSCRIPTS/2108/05/sitroom.02.html; see also Exhibit F (reproducing
transcript of this interview).
25
See, Exhibit E (on the science pertaining to natural versus vaccine-induced immunity).
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39. On August 12, 2021, Dr. A., who seeks a religious exemption from COVID
vaccination based on the religious beliefs enumerated in ¶ 37 (a)-(h), was informed by the
hospital administration via email that the hospital would be mandating the Covid-19 vaccination
for all employees and medical staff members who provide on-site care. Unvaccinated staff
members could refuse the vaccine without penalty but would be required to undergo weekly
testing.
40. This policy changed on or about August 20, 2021, due to the DOH’s issuance of the
prior Health Order, which eliminated testing in lieu of vaccination but did allow both medical
and religious exemptions.
41. On August 27, 2021, however, the hospital policy changed again after DOH issued
the Vaccinate Mandate removing the religious exemption provision under the prior Health
Order.
42. Knowing that religious exemptions had been banned by the DOH, on August 31,
2021, Dr. A. sent the hospital administration the required form for a medical exemption instead,
but has not yet received a reply.
43. Refusal to receive an abortion-connected COVID-19 vaccine will imminently result
in the loss of Dr. A’s position at the hospital and this termination of employment would have to
be mentioned in Dr. A.’s license renewal statements, which could trigger disciplinary
proceedings against him.
44. Dr. A. is now also at risk of disciplinary charges by the DOH or otherwise that
could result in loss of his license if he refuses, as he must, vaccination with any of the currently
available abortion-connected vaccines. There is also the threat that the DOH will make COVID-
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19 vaccination a condition of renewal or threaten license suspension or revocation in order
further to coerce Dr. A. to be vaccinated with a vaccine he cannot take in good conscience.
45. The imminent loss of his position and staff privileges at the hospital with which Dr.
A. is affiliated will make it impossible to conduct his practice and will also render him
unemployable anywhere in the State of New York as no other hospital would place him on the
pathology staff under the Vaccine Mandate.
46. Dr. A. will suffer imminent irreparable harm to his occupation, reputation, and
professional standing in the absence of injunctive relief barring enforcement of the Vaccine
Mandate.
Plaintiff “Nurse A.”
47. Plaintiff A., R.N. (“Nurse A.”), who is Catholic, is a registered nurse, licensed in
the State of New York, who works in a major medical center in the Southern District.
48. Nurse A. has cared for numerous dialysis patients with COVID during the
pandemic without need of vaccination.
49. On August 20, 2021, Nurse A. received a religious exemption from COVID
vaccination from her hospital, based on the religious beliefs enumerated in ¶ 37 (a)-(h),On
August 30, 2021, however, Nurse A. received an email revoking her religious exemption because
of the Vaccine Mandate, which email stated that her hospital “must follow NYS DOH
requirements as they evolve. This means that [the hospital] can no longer consider any religious
exemptions to the COVID vaccination even those previously approved.”
50. Said email further warned that “employees who do not comply with the vaccination
program by the deadlines above will be placed off duty for seven days without pay, and given
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those seven days to meet the program requirements. Employees who choose not to
meet the program requirements after seven days will be deemed to have opted to resign.”
51. Nurse A. has been given a deadline of September 15, 2021 to receive the “first
dose” of COVID vaccine.
52. Termination of Nurse A.’s employment will be devastating to her and her family.
Nurse A. will also be unemployable anywhere in the State of New York as no other hospital
would hire her under the Vaccine Mandate.
53. Nurse A.’s termination will have to be reported at the time of license renewal and
may well trigger disciplinary proceedings against her. There is also the threat that the DOH will
make COVID-19 vaccination a condition of her license renewal to further coerce compliance.
54. Nurse A. is now also under the threat of disciplinary proceedings by the DOH,
including license suspension or revocation as measure of coercion to take a vaccine that in her
informed medical judgment she cannot take in good conscience.
55. Nurse A. will suffer imminent irreparable harm to her occupation, reputation, and
professional standing in the absence of injunctive relief barring enforcement of the Vaccine
Mandate.
Plaintiff “Dr. C.”
56. Plaintiff C, M.D. (“Dr. C.”), who is Catholic, is a board-certified ophthalmologist
who is an attending physician with admitting privileges at a private hospital in the Northern
District, and he also directs a large private surgical practice.
57. During 2020, Dr. C.’s large practice group performed almost 10,000 surgeries
without a single case or outbreak of COVID-19 traceable to his practice and without vaccination
of anyone on staff.
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58. Prior to the Vaccine Mandate, religious exemption and periodic testing in lieu of
vaccination were allowed under the prior Health Order that the Vaccine Mandate superseded, as
to which exemption Plaintiff Dr. C. was in discussions with hospital management.
59. Plaintiff Dr. C. has now been advised by said hospital that on account of the Vaccine
Mandate he must be COVID-vaccinated by September 27, 2021, and that there is no religious
exemption.
60. Dr. C.’s written request for an exemption, reflecting the religious beliefs enumerated
in ¶ 37 (a)-(h), was thus denied on September 1, the same day it was submitted.
61. The imminent loss of admitting privileges at the hospital with which Dr. C is
affiliated will make it impossible to conduct his practice, as he cannot conduct ophthalmic and
maxillofacial surgery without the ability to admit patients to a hospital if the need arises.
62. The imminent loss of privileges will also render Dr. C. unemployable anywhere in
the State of New York as no other hospital would grant him privileges under the Vaccine
Mandate.
63. The imminent loss of privileges will have to be reported at the time of license
renewal and may well trigger disciplinary proceedings against Dr. C. There is also the threat that
the DOH will make COVID-19 vaccination a condition of license renewal in a further bid to
coerce compliance.
64. Dr. C. is now also under the threat of disciplinary proceedings by the DOH,
including license suspension or revocation, for refusing to obey the Vaccine Mandate by taking a
vaccine that in his informed medical judgment he cannot take in good conscience.
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65. Dr. C. will suffer imminent irreparable harm to his occupation, reputation, and
professional standing in the absence of injunctive relief barring enforcement of the Vaccine
Mandate.
Plaintiff “Nurse D.”
66. Plaintiff D., R.N. (“Nurse D.”), who is Catholic, is a registered nurse, licensed in
the State of New York, who works at a private hospital in the Northern District. She has two
sons and a husband, and her job is a vital source income and health and dental insurance for her
family.
67. Nurse D. attempted to obtain a religious exemption from her hospital, based on the
religious beliefs enumerated in ¶ 37 (a)-(h), but it was denied on account of the Vaccine
Mandate. She has been advised by management that if she is not vaccinated by September 27,
she will be deemed to have “voluntarily resigned.”
68. In a memo issued September 7, 2021, management further advised that the
employment of Nurse D. and any other employee refusing vaccination under the Vaccine
Mandate will end on September 28, the separation will be “deemed” to be voluntary, meaning no
unemployment benefits, and all health and other benefits will terminate.
69. Termination of Nurse D’s employment will be devastating to her and her family.
Nurse D. has more than $50,000 of student loans from her nursing program alone.
70. Nurse D. will also be unemployable anywhere in the State of New York as no other
hospital would hire her under the Vaccine Mandate.
71. Nurse D.’s termination will have to be reported at the time of license renewal and
may well trigger disciplinary proceedings against her. There is also the threat that the DOH will
make COVID-19 vaccination a condition of her license renewal to further coerce compliance.
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72. Nurse D. is now also under the threat of disciplinary proceedings by the DOH,
including license suspension or revocation as measure of coercion to take a vaccine that in her
informed medical judgment she cannot take in good conscience.
73. Nurse D. will suffer imminent irreparable harm to her occupation, reputation, and
professional standing in the absence of injunctive relief barring enforcement of the Vaccine
Mandate.
Plaintiff “Dr. F.”
74. Plaintiff F., D.D.S., M.D. (“Doctor F.”), who is Catholic, is a board-certified Oral
and Maxillofacial Surgeon, licensed in dentistry and medicine in the State of New York.
75. Dr. F. is employed by a private hospital in the Northern District, where he is on
staff and has admitting privileges in addition to his private practice.
76. Dr. F. and his partners have treated numerous patients who were sick with COVID
without need of vaccination. Patients with COVID were not turned away but received dental
treatment that was urgently needed. Dr. F.’s clinic is vital to the region in which it is located and
cannot turn away patients in need of urgent care.
77. Although he was granted a religious exemption from COVID vaccination under the
prior Health Order, the Vaccine Mandate has forced his hospital employer to revoke it and he
was notified by hospital administration that if he fails to provide proof of vaccination by
September 21, 2021, his hospital privileges will be suspended.
78. In addition to the concerns about the scientific questions pertaining to the available
COVID-19 vaccines noted in ¶ 37(h), Dr. F. also knows of two people who have died, one who
had a heart attack, and many others who have been injured following injection with a COVID
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vaccine. These medical facts inform Dr. F’s religious objection to involuntary vaccination of
any kind, including COVID vaccines, although he is not “anti-vax” in general.
79. The imminent loss of admitting privileges at the hospital with which Dr. F is
affiliated will make it impossible to conduct his practice, as he cannot conduct oral and
maxillofacial surgery without the ability to admit patients to a hospital if the need arises.
80. The imminent loss of privileges will also render Dr. F. unemployable anywhere in
the State of New York as no other hospital would grant him privileges under the Vaccine
Mandate, which he cannot in conscience obey.
81. The imminent loss of privileges will have to be reported at the time of license
renewal and may well trigger disciplinary proceedings against Dr. F. There is also the threat that
the DOH will make COVID-19 vaccination a condition of license renewal in a further bid to
coerce compliance with the Vaccine Mandate.
82. Dr. F. is now also under the threat of disciplinary proceedings by the DOH,
including license suspension or revocation—yet another measure of coercion to take a vaccine
that in his informed medical judgment he cannot take in good conscience.
83. Dr. F. will suffer imminent irreparable harm to his occupation, reputation, and
professional standing in the absence of injunctive relief barring enforcement of the Vaccine
Mandate.
Plaintiff Dr. “G.”
84. Plaintiff G., M.D. (“Dr. G.”), who is Catholic, is a board-certified specialist in
Internal Medicine, licensed in the State of New York, who is employed by two private hospitals
operated by a health service in the Western District at which he has staff and admitting
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privileges. Dr. G also directs an internal medicine residency program in which he instructs
dozens of M.D.s who are fulfilling their residency requirements.
85. Dr. G., who seeks a religious exemption from COVID vaccination based on the
beliefs enumerated in ¶ 37 (a)-(h), has been informed by the Medical Affairs Department that
there is no religious exemption from the Vaccine Mandate and that if he is not “fully vaccinated”
by September 27 he will not be allowed to enter any of the buildings of the health service,
including the hospitals in which he works and teaches.
86. The imminent loss of Dr. G.’s positions and admitting privileges at the hospitals
with which he is affiliated will make it impossible for him to conduct his practice.
87. The imminent loss of his positions and privileges will also render Dr. G.
unemployable anywhere in the State of New York as no other hospital would grant him
privileges under the Vaccine Mandate, which he cannot in conscience obey.
88. The imminent loss of privileges and the termination of his employments will have
to be reported at the time of license renewal and may well trigger disciplinary proceedings
against Dr. G. There is also the threat that the DOH will make COVID-19 vaccination a
condition of his license renewal.
89. Dr. G. is now also under the threat of disciplinary proceedings by the DOH,
including license suspension or revocation as a further measure of coercion to take a vaccine that
in his informed medical judgment he cannot take in good conscience.
90. Dr. G. will suffer imminent irreparable harm to his occupation, reputation, and
professional standing in the absence of injunctive relief barring enforcement of the Vaccine
Mandate.
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Plaintiff “Therapist I.”
91. Plaintiff I. (“Therapist I.”), who is Catholic, is a certified brain injury specialist who
provides cognitive rehabilitation and other assistance to patients, groups of patients, their
families and visitors at a facility located in the Northern District.
92. In October of 2020, Therapist I. treated COVID patients as a TNA (temporary
nurses' aide) on a dedicated COVID Unit in a nursing home. Therapist I. was part of a team that
the parent facility set up to travel among its properties when the destination facility was in a
staffing crisis. Therapist I. did not require any form of vaccination to treat these patients but
rather was tested twice a week.
93. Therapist I. knows of two colleagues who were “fully vaccinated” yet still
contracted COVID-19 and had to be quarantined. These medical facts, along with those recited
herein above, inform Therapist I’s religious objection to involuntary vaccination as a violation of
human dignity.
94. Therapist I., who seeks a religious exemption from COVID vaccination based on
the beliefs noted in ¶ 37 (a)-(h), has been advised by his employer, a rehabilitation center, that,
because of the Vaccine Mandate, he must receive “at least the first dose” of an abortion-
connected vaccine by September 27, 2021.
95. Therapist I. is now facing imminent termination of his employment and damage to
his reputation and future employment prospects if he refuses to be vaccinated against his
religious belief.
96. Therapist I. is also at risk of action against his certification in EMS as the DOH
imposing the Vaccine Mandate also regulates the granting, oversight and renewal of his EMT-B
certificate.
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97. Therapist I will thus suffer imminent irreparable harm to his occupation, reputation,
and professional standing in the absence of injunctive relief barring enforcement of the Vaccine
Mandate.
Plaintiff “Doctor J.”
98. Plaintiff J., D.O., who is Catholic, is a Doctor of Osteopathy (“Dr. J.”), licensed in
the State of New York, whose specialty is Obstetrics and Gynecology, for which she is board-
certified. She has admitting privileges at a private hospital in the Western District in addition to
her private practice.
99. Dr. J. believes she has probably treated dozens of women with COVID, most of
whom were asymptomatic, and may have had an asymptomatic case of COVID herself. She
works in Labor and Delivery two days per week, training residents, and cares for “unassigned
patients” who don’t have a doctor. All patients are tested for COVID. Sometimes if the delivery
was happening quickly, Dr. J. would have to run into the room without knowing the patient’s
COVID status, and there was not always time to wear proper personal protection equipment
(PPE). She would find out after the fact that the patient was COVID-positive. Dr. J. has had 5 to
8 patients who were admitted specifically due to complications of COVID in pregnancy. She
assisted in their treatment even while she herself was pregnant.
100. As an OBGYN, Dr. J. has always practiced in accord with the dictates of her
personal religious convictions, including the beliefs enumerated above, and she does not perform
any form of abortion or sterilization procedure, nor prescribe any contraceptive that could induce
an unintentional abortion.
101. Dr. J. is currently breastfeeding her daughter, is aware of reports of the death of
breastfeeding infants following maternal vaccination, and is not aware of any studies to date that
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would prove safety in breastfeeding or during pregnancy, which is of particular concern to her as
an OB-GYN. Her hospital’s own notice of the Vaccination Mandate advises breastfeeding
women hesitantly as follows: “Evidence about the safety and effectiveness of COVID-19
vaccination during pregnancy is growing… It’s best to talk to your OB-GYN or pediatrician
about any questions or concerns you have.”
These medical facts, along with those recited herein above, inform Dr. J.’s religious conviction
against involuntary vaccination as an invasion of bodily autonomy that is contrary to Catholic
Church teaching, especially in the case of COVID vaccination while she is breast-feeding or
pregnant, when the welfare of her child is also implicated.
102. Dr. J., who seeks a religious exemption from COVID vaccination that reflects the
beliefs set forth in ¶ 37 (a)-(h), has been advised by hospital management that unless she has the
“first shot” of COVID vaccine by September 27, she can no longer have admitting privileges at
the hospital.
103. Refusal to receive an abortion-connected COVID-19 vaccine will imminently result
in the loss of Dr. J.’s admitting privileges, which will make it impossible to conduct her practice.
104. The loss of privileges due to refusal to comply with the Vaccine Mandate would
have to be mentioned in her license renewal statements, which could trigger disciplinary
proceedings against Dr. J.
105. There is also the threat that the DOH will make COVID-19 vaccination a condition
of renewal or threaten license suspension or revocation in order further to coerce Dr. J. to be
vaccinated with a vaccine she does not need in her informed medical judgment, does not want,
and cannot take in good conscience.
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106. The loss of admitting privileges at the hospital with which Dr. J. is affiliated will
also render her unemployable anywhere in the State of New York as no other hospital would
grant her admitting privileges under the Vaccine Mandate.
107. Dr. J. will suffer imminent irreparable harm to her occupation, reputation, and
professional standing in the absence of injunctive relief barring enforcement of the Vaccine
Mandate.
Plaintiff “Nurse J.”
108. Plaintiff J., L.P.N. (“Nurse J.”), who is Baptist, is a licensed practical nurse,
licensed in the State of New York, who provides home nursing care for two private home care
agencies doing business in the Eastern District.
109. Nurse J. has cared for COVID patients on an in-home basis, including a patient who
had to be hospitalized for several months, on which occasion Nurse J had to be quarantined for
two weeks. Nurse J. developed COVID-like symptoms and believes she has had the virus and
thus has acquired natural immunity.
110. While not a Catholic, Nurse J. shares the common beliefs of the plaintiffs, as
enumerated above.
111. On September 6, 2021, Nurse J. sent a letter of protest concerning the Vaccine
Mandate to the administration of the agencies for which she works, urging them not to capitulate
to the State. But on September 7, 2021, Nurse J. was advised by management that there would be
no religious exemptions from vaccination, “much to our disappointment.”
112. Nurse J. has requested a religious exemption but does not expect to receive one,
given the Vaccine Mandate. On September 9, 2021, Nurse J. was advised by the executive
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director of one of the agencies that employ her that no religious exemption is possible due to the
Vaccine Mandate and that “my hands are tied.”
113. Nurse J. is now facing imminent termination of her employment as of October 7,
2021, the compliance date for entities other than hospitals and nursing homes under the Vaccine
Mandate. She will also be unemployable anywhere in the State of New York as no other hospital
would hire her under the Vaccine Mandate.
114. Nurse J.’s termination will have to be reported at the time of license renewal and
may well trigger disciplinary proceedings against her. There is also the threat that the DOH will
make COVID-19 vaccination a condition of her license renewal.
115. Nurse J. is now also under the threat of disciplinary proceedings by the DOH,
including license suspension or revocation as a further measure of coercion to take a vaccine that
in her informed medical judgment she cannot take in good conscience.
116. Nurse J. will suffer imminent irreparable harm to her occupation, reputation, and
professional standing in the absence of injunctive relief barring enforcement of the Vaccine
Mandate.
Plaintiff “Dr. M.”
117. Plaintiff M., M.D. (“Dr. M”), who is Catholic, is a medical school graduate in the
process of completing her residency at a private hospital in the Western District.
118. On August 19, 2021, during the short time the prior Health Order was in effect, Dr.
M. received an email from Human Resources advising that all residents must be vaccinated for
COVID-19 and that “Information regarding waivers for medical or religious reasons will be
available shortly.”
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119. On August 25, 2021, however, Dr. M. received an email from administration
warning that “disregarding the NYS Vaccination Mandate may affect your ability to continue
working and training with your residency or fellowship program.” There was no indication of an
allowance for religious exemptions.
120. On August 30, 2021, Dr. M. received another email from HR advising that “Late
last week, the NYS Public Health & Planning Council and the NYS Commissioner of Health
removed the religious exemption for the recent state mandate requiring all health professionals
get vaccinated for COVID-19.” Dr. M. was thus barred from obtaining the religious exemption
from COVID vaccination that she seeks, based on the religious beliefs enumerated above.
121. In addition to the medical concerns recited in ¶37 (h), Dr. M. has personally
witnessed a medical student having a seizure after receiving the one-shot Johnson & Johnson
vaccine. She collapsed to the floor and a rapid response team was summoned because she was
unresponsive. She recovered with the assistance of the team. These medical facts inform Dr.
M.’s religious conviction against involuntary vaccination.
122. On September 3, 2021, the hospital administration further advised Dr. M. by email
that she must receive the “first dose” of a COVID vaccine by September 27 and that
“Disregarding the NYS Vaccination Mandate may affect your ability to continue working and
training with your residency or fellowship program.”
123. Dr. M. has met with her program director to discuss her religious objection to
COVID vaccination, but was met only with reiteration of the warning that her residency was at
risk if she did not accept vaccination.
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124. Dr. M. now faces the imminent loss of her residency and thus the destruction of her
entire career as she can never become a fully licensed physician and practice independently
without completing a residency.
125. Given the Vaccine Mandate, Dr. M. will be unable to find a residency anywhere in
the State of New York due to her conscientious religious abstention from vaccination.
126. Further, termination of her residency for refusal to obey the Vaccine Mandate in
violation of her religious belief is likely to have adverse consequences for Dr. M.’s licensure in
New York or any other jurisdiction.
127. Dr. M. will suffer imminent irreparable harm to her occupation, reputation, and
professional standing in the absence of injunctive relief barring enforcement of the Vaccine
Mandate.
Plaintiff “Nurse N.”
128. Plaintiff N., B.S.N, R.N.-C.(“Nurse N.), who is Catholic, is a Bachelor’s-prepared,
medical-surgical certified Registered Nurse, licensed in the State of New York, who works at a
hospital in the Northern District.
129. On August 19, 2021, Nurse N., under the prior regime that included the Health
Order, received an exemption from COVID vaccination on the basis of anticipated pregnancy
and current breastfeeding, and thus did not submit an additional request to her employer for
religious exemption, which she would have done, based on the beliefs enumerated above, had
her request for exemption related to pregnancy and breastfeeding been denied. Nurse N.’s
request for exemption was approved as a “vaccination deferral.”
130. On September 1, 2021, however, Nurse N. was notified by hospital administration
that the Vaccine Mandate had eliminated all exemptions for religion and pregnancy, that her
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exemption was thus revoked, and that she must receive at least one dose of a COVID-19 vaccine
by September 21.
131. Nurse N. does not accept the view that recourse to abortion-connected vaccines
can be justified as “remote” cooperation in abortion. She rejects any medical cooperation in
abortion, “remote” or otherwise.
132. Nurse N. also believes and follows the religious teaching of the Congregation for
the Doctrine of the Faith that vaccination is not morally obligatory. Nurse N. does not oppose
vaccination generally, and is not an “anti-vaxxer,” but does oppose government imposition of
any medication or vaccine without informed consent, which she views with sincere religious
conviction as a violation of the dignity of the human person.
133. Further, Nurse N. has had COVID-19, from which she recovered. As a medical
professional who has read the pertinent medical literature, Nurse N. knows that she has natural
immunity that is superior to the vaccine-induced immunity that is already fading, that she is in no
need of vaccination by any form of COVID vaccine, and that all available COVID vaccines have
known and quite serious side effects, including death.
134. Nurse N. also knows that in her county “fully vaccinated” patients now comprise
the majority of COVID cases according to testing results (25 out of 41 cases), which is why
“health experts” are now calling for “booster shots,” which she fears will be demanded of her
under the Vaccine Mandate, which requires that employees “continuously” be “fully
vaccinated,” however many times the government demands. These medical facts inform Nurse
N.’s religious conviction against involuntary vaccination as an invasion of bodily autonomy that
is contrary to Church teaching.
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135. Plaintiff is now facing imminent loss of her employment, which is essential to the
support of her family, on account of her religious abstention from COVID-19 vaccination.
136. Nurse N. will also be unemployable anywhere in the State of New York as no other
hospital would hire her due to her conscientious refusal to obey the Vaccine Mandate.
137. Nurse N.’s termination will have to be reported at the time of license renewal and
may well trigger disciplinary proceedings against her. There is also the threat that the DOH will
make COVID-19 vaccination a condition of her license renewal.
138. Nurse N. is now also under the threat of disciplinary proceedings by the DOH,
including license suspension or revocation as a further measure of coercion to take a vaccine that
in her informed medical judgment she cannot take in good conscience.
139. Nurse N. will suffer imminent irreparable harm to her occupation, reputation, and
professional standing in the absence of injunctive relief barring enforcement of the Vaccine
Mandate.
Plaintiff “Dr. O.”
140. Plaintiff O., M.D. (“Dr. O.”), who is Catholic, is a board-certified General
Surgeon, licensed in the State of New York. He is employed by a private hospital in the
Northern District.
141. Dr. O. has treated and seen multiple patients for surgical problems (appendicitis,
cholecystitis, soft tissue infections and other problems) who have had COVID.
142. On July 13, 2021, Dr. O. was granted a religious exemption from his hospital
under the prior Health Order, which allowed for religious exemptions, but this has been revoked
on account of the new Vaccine Mandate announced on August 26, removing the provision for
religious exemptions.
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143. Dr. O. has thus been advised by his employer that, because of the Vaccine
Mandate, he must be “fully vaccinated” with an abortion-connected vaccine by September 21,
and that “under the emergency regulations the NYS DOH will not permit exemptions or deferrals
for sincerely held religious beliefs…” As the employer further advised: “any colleague who was
previously approved for one of the above exemptions/deferrals [including religious exemption]
will be required to provide proof of [vaccination]…”
144. Dr. O. now faces imminent loss of his privileges at the hospital where he performs
surgery. Without admitting privileges, he would not be able to operate a private surgical practice
as he would not have the capacity to admit patients to a hospital if need be.
145. The imminent loss of his staff position and hospital privileges will also render Dr.
O. unemployable anywhere in the State of New York as no other hospital would hire him under
the Vaccine Mandate, given his religiously motivated refusal to follow it.
146. The imminent loss of Dr. O’s staff position and hospital privileges will have to be
reported at the time of license renewal and may well trigger disciplinary proceedings against
him. There is also the threat that the DOH will make COVID-19 vaccination a condition of his
license renewal.
147. Dr. O. is now also under the threat of disciplinary proceedings by the DOH,
including license suspension or revocation as a further measure of coercion “continuously” to be
inoculated with a vaccine that in his informed medical judgment he cannot take in good
conscience.
148. Dr. O. will suffer imminent irreparable harm to his occupation, reputation, and
professional standing in the absence of injunctive relief barring enforcement of the Vaccine
Mandate.
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Plaintiff “Dr. P.”
149. Plaintiff P., D.O. (“Dr. P.”), who is Catholic, is a third-year obstetrics and
gynecology resident at private hospital in the Western District.
150. Midway through her first year of training, the COVID-19 pandemic broke out, and
Dr. P. cared for many patients infected with the virus, often with limited or no PPE. No
vaccination was needed or required for her to treat patients safely.
151. In March 2020, Dr. P. was assigned to an ICU rotation, standard for a first-year
resident, during which she helped care for the sickest patients in the hospital, many suffering
from COVID. It was during this time that Dr. P. herself became sick with the virus, from which
she recovered before returning to work.
152. As a Catholic, Dr. P. intends to practice medicine in line with the moral teachings
of the Church, including the beliefs enumerated in ¶ 37 (a)-(h), which is why she chose her
current residency program, in reliance on which she and her husband moved from Texas to
Buffalo.
153. As a medical doctor who has recovered from COVID, Dr. P. knows that she has
natural immunity, shown by numerous studies to be superior to the vaccine-induced immunity
that is already fading; that the COVID vaccines now available do not limit viral transmission, as
shown by the rising demand for “booster shots” (including a fourth shot in Israel); and that
vaccinating a naturally immune person can do more harm than good by provoking a hyper-
immune response.
154. On August 19, 2021, during the short time the prior Health Order was in effect, Dr.
P. received an email from Human Resources advising that all residents must be vaccinated for
COVID-19 and that “Information regarding waivers for medical or religious reasons will be
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available shortly.” This email also states that “disregarding the NYS Vaccination Mandate may
affect your ability to continue working and training with your residency or fellowship program.”
155. On August 30, 2021, Dr. P. received another email from HR advising that “Late last
week, the NYS Public Health & Planning Council and the NYS Commissioner of Health
removed the religious exemption for the recent state mandate requiring all health professionals
get vaccinated for COVID-19.”
156. On September 7, Dr. P. was directed to meet with the OB/GYN department chair,
who attempted to pressure her into being vaccinated with the suggestion that, as she had been
advised on August 19, “disregarding the NYS Vaccination Mandate may affect your ability to
continue working and training with your residency or fellowship program.”
157. Dr. P. now faces the imminent loss of her residency and thus destruction of her
entire career as she can never become a fully licensed physician and practice independently
without completing a residency.
158. Given the Vaccine Mandate, Dr. P. will be unable to find a residency anywhere in
the State of New York due to her conscientious religious abstention from vaccination.
159. Further, termination of her residency for refusal to obey the Vaccine Mandate in
violation of her religious belief is likely to have adverse consequences for her full licensure in
New York or any other jurisdiction.
160. Dr. P. will suffer imminent irreparable harm to her occupation, reputation, and
professional standing in the absence of injunctive relief barring enforcement of the Vaccine
Mandate.
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Plaintiff “Technologist P.”
161. Plaintiff P. (“Technologist P.”), who is Catholic, is a Nuclear Medicine
Technologist, licensed in the State of New York, who is employed by a private health
organization in the Eastern District.
162. On or about August 18, 2021, with the prior Health Order in effect, Technologist
P. was advised by her employer that she must be vaccinated with a COVID vaccine unless she
obtained a religious exemption, for which she applied on August 26, 2021, with extensive
explanation and documentation of her sincere religious belief.
163. After the Vaccine Mandate eliminated religious exemptions on August 26,
however, Technologist P. was advised by her employer by email on September 1, 2021, that her
pending request for religious exemption had been rejected because “on August 26, 2021, the
DOH announced that religious exemptions are not permitted under the State mandate. It is for
this reason that we are unable to grant your request for a religious exemption.”
164. Technologist P.’s employer warned in said email that she must receive at least her
“first shot” of one of the abortion-connected vaccines by September 27, 2020 and that “If you
choose to not receive your first shot between now and September 27, 2021, you will be non-
compliant with the NYS mandate and your continued employment will be at risk.”
165. Technologist P. has been further advised by her manager that, as of September 27,
if she fails to be vaccinated against her religious belief, her security badge will be deactivated,
she will not be able to access her place of employment and will essentially be regarded as a
trespasser.
166. In addition to the medical facts recited in ¶ 37 (h), Technologist P. knows of a co-
worker who collapsed after vaccination from a severe allergic reaction, requiring the calling of a
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code and the administration of Benadryl and steroids for a month, and who returned to work
visibly miserable, covered in a rash, itchy, jittery, and shaking. Technologist P. has also observed
that 50 percent of her colleagues who contract COVID and are out sick have been “fully
vaccinated,” and that there is a regular flow of “fully vaccinated” patients being admitted to her
hospital.
167. In addition to the medical concerns recited herein above, Technologist P. is
breastfeeding, and there are limited data on the safety of COVID vaccines for the breastfeeding
child, with reports of infant death following vaccination of the breastfeeding mother. These
medical facts inform Technologist P.’s religious conviction against involuntary vaccination as an
invasion of bodily autonomy contrary to Church teaching.
168. Technologist P. now faces imminent loss of her employment, as well as loss of her
certification in disciplinary proceedings, if she refuses, as she must, any of the available COVID
vaccines.
169. Any discharge from employment on account Technologist’s P’s conscientious and
religiously motivated refusal to take any of the available abortion-connected vaccines would
have to be reported upon renewal of Technologist P’s certification.
170. Plaintiff Technologist P. will thus suffer imminent irreparable harm to her
occupation, reputation, and professional standing in the absence of injunctive relief barring
enforcement of the Vaccine Mandate.
Plaintiff “Dr. S.”
171. Plaintiff S., D.D.S. (“Dr. S.”), who is Catholic, is a board-certified Oral and
Maxillofacial surgeon who, in addition to his private practice, is an attending physician with
admitting privileges at a hospital in the Northern District.
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172. Dr. S. and his partners have treated numerous patients who were sick with COVID
without need of vaccination, and Dr. S. thus contracted COVID, from which he recovered.
Patients with COVID were not turned away but received dental treatment that was urgently
needed.
173. On August 17, 2021, under the then-applicable DOH vaccination requirement,
which included the prior Health Order as of August 18, Dr. S. received a religious exemption
from COVID-19 vaccination. The exemption was based on his religious convictions as a
Catholic, including the beliefs enumerated above.
174. On September 1, however, Dr. S.’s religious exemption was revoked due to the
issuance of the Vaccine Mandate, and he was notified by hospital administration that if he fails
to provide proof of vaccination by September 21, 2021, his hospital privileges will be suspended.
175. As a licensed physician who has recovered from COVID, Dr. S. knows that he has
natural immunity, shown by studies he has reviewed to be superior to the vaccine-induced
immunity that is already fading. See Exhibit E.
176. The imminent loss of admitting privileges at the hospital with which Dr. S is
affiliated will make it impossible to conduct his practice, as he cannot conduct oral and
maxillofacial surgery without the ability to admit patients to a hospital if the need arises.
177. The imminent loss of privileges will also render Dr. S. unemployable anywhere in
the State of New York as no other hospital would grant him privileges under the Vaccine
Mandate.
178. The imminent loss of privileges will have to be reported at the time of license
renewal and may well trigger disciplinary proceedings against Dr. S. There is also the threat that
the DOH will make COVID-19 vaccination a condition of license renewal.
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179. Dr. S. is now also under the threat of disciplinary proceedings by the DOH,
including license suspension or revocation as a further measure of coercion to take a vaccine that
in his informed medical judgment he cannot take in good conscience.
180. Dr. S. will suffer imminent irreparable harm to his occupation, reputation, and
professional standing in the absence of injunctive relief barring enforcement of the Vaccine
Mandate.
Plaintiff “Nurse S.”
181. Plaintiff S., R.N. (“Nurse S.”), who is Catholic, is a registered nurse employed by a
hospital in the Northern District.
182. Nurse S. has treated a patient who had recovered from COVID but still decided to
be vaccinated. After receiving the second dose of the vaccine, this patient needed high-flow
oxygen to survive and was not able to get out of bed or even turn over without exacerbation of
her condition.
183. On August 15, 2021, before the Vaccine Mandate removed religious exemptions,
Nurse S. applied for a religious exemption from the employing hospital, based on the beliefs
enumerated above. Nurse S.’s request for religious exemption advised in particular that she could
not take any of the available COVID-19 vaccines because of their connection to aborted fetal cell
lines, citing the analysis of each vaccine by the Charlotte Lozier Institute. Nurse S. advised that
“is my Catholic duty to refuse the injection.”
184. In addition to the medical concerns recited herein above, Nurse S. intends to have
children, and she is aware that there is a lack of data on the effect of the available COVID
vaccines on pregnancy and post-partum development of children, given that the vaccines have
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been available for less than year. These medical facts inform Nurse S.’s religious conviction
against involuntary vaccination.
185. On September 1, 2021, Nurse S. was advised by the hospital administration that due
the Vaccine Mandate, as of August 26, 2021 the State will not permit exemptions for sincerely
held religious beliefs, that “we are required to comply with state law” and that every member of
the staff must have at least one dose of a two-dose COVID vaccine, or a single dose vaccine by
September 21, 2021.
186. Nurse S., who is just beginning her nursing career, now faces imminent termination
of her employment and will be unemployable as a nurse anywhere in New York State due to the
Vaccine Mandate, as well as possible license suspension or disciplinary proceedings due to
termination for “insubordination.”
187. Nurse S. will thus suffer imminent irreparable harm to her occupation, reputation,
and professional standing in the absence of injunctive relief barring enforcement of the Vaccine
Mandate.
Plaintiff “Physician Liaison X.”
188. Plaintiff X. (“Physician Liaison X”), who is Catholic, is a physician liaison manager
for a major cancer center in the Southern District. Her job has been 100% remote for the past 18
months.
189. Last month, Physician Liaison X.’s employer began mandating COVID
vaccinations for all employees, but with religious and medical exemptions allowed under the
prior Health Order. That policy changed on September 1, 2021, when her employer announced
by email that the Vaccine Mandate had eliminated all religious exemptions, that the employer
could no longer grant religious exemptions, and that any religious exemptions granted would be
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revoked. Physician Liaison X. is thus barred from obtaining the religious exemption she seeks,
based on the religious beliefs enumerated above, which she holds in common with the other
plaintiffs.
190. Physician Liaison X. now faces imminent loss of her employment and severe
damage to her professional reputation and future employment in the extremely competitive
sector of the medical executive class.
191. Physician Liaison X. will thus suffer imminent irreparable harm to her occupation,
reputation, and professional standing in the absence of injunctive relief barring enforcement of
the Vaccine Mandate.
COUNT I
VIOLATION OF THE FREE EXERCISE CLAUSE
OF THE FIRSTAMENDMENT TO THE UNITED STATES CONSTITUTION.
(42 U.S.C. § 1983)
192. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1-191
above as if fully set forth herein.
193. The Free Exercise Clause of the First Amendment to the United States Constitution,
as applied to the states by the Fourteenth Amendment, prohibits the State from abridging
Plaintiffs’rights to free exercise of religion.
194. Plaintiffs have sincerely held religious beliefs that compel them to refuse
vaccination with abortion-connected vaccines.
195. Plaintiffs reallege the discussion of their sincerely held religious beliefs as set
forth in all the preceding paragraphs.
196. The Vaccine Mandate, on its face and as applied, targets Plaintiffs’ sincerely held
religious beliefs by requiring the revocation of revoking religious exemptions previously
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granted by their employers or by prohibiting them from seeking and receiving exemption and
accommodation for their sincerely held religious beliefs from their employers, with the
employers citing the Vaccine Mandate as the grounds for refusing even to consider exemption
requests.
197. The Vaccine Mandate, on its face and as applied, impermissibly burdens Plaintiffs’
sincerely held religious beliefs, compels them to abandon their beliefs or violate them under
coercion, and forces Plaintiffs to choose between their religious convictions and the State’s
patently unconstitutional value judgment that their religious beliefs are of no account and cannot
be considered by employers.
198. The Vaccine Mandate strips Plaintiffs, adult medical professionals, of the right to
religious exemption secured by state statute even for 17-year-old college students, who can
obtain an exemption by merely submitting “a written and signed statement from the student
(parent or guardian of students less than 18 years of age) that he/she objects to immunization due
to his/her religious beliefs.” See Public Health Law § 2165, Immunization Requirements for
Students, https://tinyurl.com/4byd8s56.
199. The Vaccine Mandate even eliminates the protection for religion and the allowance
of religious exemptions under the prior Health Order, which was revised to exclude religious
accommodation on or about August 26, 2021, only days ago.
200. The Vaccine Mandate, on its face and as applied, places Plaintiffs in an irresolvable
conflict between compliance with the mandate and their sincerely held religious beliefs.
201. The Vaccine Mandate, on its face and as applied, puts substantial pressure on
Plaintiffs to violate their sincerely held religious beliefs or face loss of their occupations,
professional standing, licenses, reputations, and ability to support their families.
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202. The Vaccine Mandate, on its face and as applied, is neither neutral nor generally
applicable as it grants the possibility of medical exemptions for reasons of secular “health” but
bars religious exemptions according to the State’s unconstitutional value judgment that physical
health is less important than spiritual health.
203. The Vaccine Mandate, on its face and as applied, thus targets Plaintiffs’ religious
beliefs for disparate and discriminatory treatment.
204. The Vaccine Mandate, on its face and as applied, creates a system of
individualized exemptions for preferred exemption requests based on physical health, while
discriminating against requests for exemption and accommodation based on sincerely held
religious beliefs.
205. The Vaccine Mandate, on its face and as applied, is a religious gerrymander that,
only days after promulgation of the Health Order allowing religious exemptions, excluded
sincerely held religious beliefs from any form of accommodation while permitting state-favored
medical exemptions.
206. There is no legitimate, rational, or compelling interest in the Vaccine Mandate’s
exclusion of exemptions and accommodations for sincerely held religious beliefs, especially
given the following facts: (a) those exempted for reasons of “health” are no less susceptible of
contracting and spreading COVID (the prevention of which is the very reason for the Vaccine
Mandate) than those who would be exempted for reasons of religion (b) that the available
COVID-19 vaccines are clearly failing to prevent transmission or infection, so that “booster
shots” are now being promoted; (c) even the vaccinated must continue to wear masks as if they
were not vaccinated because they can still be infected or infect others; (d) that naturally
immune persons who have recovered from COVID have superior immunity and do not need
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vaccination; (e) that vaccinating naturally immune people may harm them by causing a
hyperimmune response; and (f) that vaccinated persons are being admitted to the hospital along
with unvaccinated persons.
207. The Vaccine Mandate is not the least restrictive means of achieving an otherwise
permissible government interest, which could be achieved by the same protective measures
(masking, testing, quarantining, etc.) already being required of the vaccinated and the
unvaccinated alike (including those exempted for health reasons).
208. The Vaccine Mandate, on its face and as applied, has caused, is causing, and will
continue to cause irreparable harm and actual and undue hardship to Plaintiffs from violation of
their sincerely held religious beliefs and the occupational, professional, social and economic
consequences pleaded above.
209. Plaintiffs have no adequate remedy at law to prevent the continuing violation of
their constitutional liberties and sincerely held religious beliefs.
COUNT II
VIOLATION OF THE SUPREMACY CLAUSE OF
THE UNITED STATES CONSTITUTIONBY
(42 U.S.C. ¶ 1983))
210. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1-209
as if fully set forth herein.
211. The Supremacy Clause provides:
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any Thing in the Constitution
or Lawsof any State to the Contrary notwithstanding.
U.S. Const. Art. VI, cl. 22 (emphasis added).
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212. The Vaccine Mandate, both facially and as applied, compels employers of health
care workers in the State of New York to disregard Title VII’s protection against employment
discrimination on account of religion, forbidding any accommodation of religious belief
whatsoever and even requiring the revocation of previously granted religious exemptions from
COVID vaccination.
213. The Vaccine Mandate thus requires actions that federal law forbids, which renders
the Vaccine Mandate null and void. Mutual Pharm. Co., Inc. v. Bartlett, 570 U.S. 472, 486
(2013).
214. All of Plaintiffs’ employers have 15 or more employees and are subject to the
requirements of Title VII.
215. By attempting to preclude application of Title VII in the State of New York in the
case of COVID vaccination, the Vaccine Mandate patently violates the Supremacy Clause.
216. In particular, the Vaccine Mandate purports to negate Title VII’s requirement that
employers provide reasonable accommodations to individuals with sincerely held religious
beliefs, and even flatly prohibits religious exemption or accommodation requests, as the
employers noted above have indicated.
217. By purporting to place themselves and their mandate outside the protections of
both Title VII and the First Amendment, Defendants have violated the basic constitutional
principle that “federal law is as much the law of the several States as are the laws passed by
their legislatures.” Haywood v. Drown, 556 U.S. 729, 734 (2009) (emphasis added).
218. The Vaccine Mandate, on its face and as applied, has caused, is causing, and will
continue to cause irreparable harm and actual and undue hardship to Plaintiffs from violation of
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their sincerely held religious beliefs and the occupational, professional, social and economic
consequences pleaded above.
219. Plaintiffs have no adequate remedy at law for the continuing deprivation of their
statutory rights under Title VII as secured by the Supremacy Clause.
COUNT III
VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION
(42 U.S.C. § 1983)
220. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1-209
above as if fully set forth herein.
221. The Fourteenth Amendment to the United States Constitution guarantees
Plaintiffs’ right to equal protection under the law.
222. The Vaccine Mandate, on its face and as applied, is an unconstitutional abridgment
of Plaintiffs’ right to equal protection, is not neutral, and specifically targets Plaintiffs’ sincerely
held religious beliefs for discriminatory and unequal treatment as compared with the medical
exemptions favored by the State’s impermissible, anti-religious value judgment.
223. The Vaccine Mandate, on its face and as applied, is an unconstitutional
abridgement of Plaintiffs’ right to equal protection because it permits the State to treat Plaintiffs
differently from similarly situated healthcare workers solely on the basis of Plaintiffs’ sincerely
held religious beliefs.
224. The Vaccine Mandate, on its face and as applied, singles out Plaintiffs for
selective treatment based upon their sincerely held religious objections to the COVID-19
vaccines.
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225. The Vaccine Mandate, on its face and as applied, was clearly designed to slam
shut what Defendants undoubtedly viewed as a large potential “escape hatch” from their
planned regime of brute coercion to be vaccinated under penalty of personal and professional
destruction, which regime has no precedent in the history of the United States. This is shown
by the Vaccine Mandate’s abrupt excision of religious protection and religious accommodation
from the prior Health Order, issued only days before. The intent is clearly to leave religious
believers with no choice but to violate their religious beliefs to keep their jobs and avoid
professional destruction and financial hardship.
226. The Vaccine Mandate, on its face and as applied, creates a system of classes and
categories that improperly accommodates exemptions for the class of healthcare workers
concerned with bodily health while denying exemption to the class of health care workers
concerned with spiritual health above bodily health, including all the Plaintiffs herein.
227. The Vaccine Mandate, reversing the State’s policy of only days before, arbitrarily
and capriciously attempts to deny Plaintiffs and others similarly situated the protection for
religion and the requirement of religious accommodation under both the Human Rights Law of
the State of New York and the Human Rights Law of the City of New York, as well as the
parallel the protections of Title VII, while leaving untouched protections under the same
statutes for other protected classes, including by allowing exemptions for reasons of “health”
but not religion.
228. The Vaccine Mandate arbitrarily and capriciously denies to adult medical workers
with expert knowledge of vaccination and its risks the same religious exemption from
vaccination available to any college student under Public Health Law § 2615, as pleaded above.
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229. By purporting to negate statutorily required religious accommodations from
consideration in the State of New York, Defendants, via the Vaccine Mandate, have singled out
for disparate treatment the specific class of healthcare employees whose motive for seeking
exemption from vaccination is religious rather than medical.
230. Further, Nurse J, Nurse N, Dr. P, and Dr. S have all previously had COVID or
COVID-like symptoms and, on information and belief, have natural immunity at a level no less
than, and likely far more than, the immunity purportedly offered by available COVID vaccines.
(See Exhibit E.)
231. There is no rational, legitimate, or compelling interest in the Vaccine Mandate’s
application of different standards to different, similarly situated groups in the field of healthcare.
232. The Vaccine Mandate, on its face and as applied, discriminates between religion
and nonreligion by allowing nonreligious exemptions to the Vaccine Mandate while prohibiting
religious exemptions.
233. The Vaccine Mandate, on its face and as applied, is a “status-based enactment
divorced from any factual context” and “a classification of persons undertaken for its own
sake,” which “the Equal Protection Clause does not permit.” Romer v. Evans, 517 U.S. 620, 635
(1996). The Vaccine Mandate, on its face and as applied, “identifies persons by a single trait
[religious beliefs] and then denies them protections across the board.” Id.at 633.
234. The Vaccine Mandate, on its face and as applied, by allowing medical exemptions
while denying religious exemptions, is a “disqualification of a class of persons from the right to
seek specific protection [for their religious beliefs].” Id.
235. “A law declaring that in general it shall be more difficult for one group of citizens
than for all others to seek [an exemption from the COVID-19 Vaccine Mandate] is itself a
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denial of equal protection of the laws in the most literal sense.” Id. The Vaccine Mandate, on its
face and as applied, is such a measure.
236. The Vaccine Mandate, on its face and as applied, has caused, is causing, and will
continue to cause irreparable harm and actual and undue hardship to Plaintiffs from violation of
their sincerely held religious beliefs and the occupational, professional, social and economic
consequences pleaded above.
237. Plaintiffs have no adequate remedy at law for the continuing deprivation of their
rights under the Equal Protection Clause.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray for relief as follows as to all Counts:
(A). A statewide temporary restraining order and/or preliminary injunction, followed by
a permanent injunction, restraining and enjoining the Defendants, their officers, agents,
employees, attorneys and successors in office, and all other persons in active concert or
participation with them, from enforcing, threatening to enforce, attempting to enforce, or
otherwise requiring compliance with the Vaccine Mandate such that:
(1) The Vaccine Mandate is suspended in operation to the extent that the
Department of Health is barred from enforcing any requirement that employers
deny religious exemptions from COVID-19 vaccination or that they revoke any
exemptions employers already granted before the Vaccine Mandate superseded
the prior Health Order to exclude religious exemptions, including the exemptions
already granted to certain of the Plaintiffs herein;
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(2) The Department of Health is barred from interfering in any way with the
granting of religious exemptions from COVID-19 vaccination going forward, or
with the operation of exemptions already granted under the prior Health Order;
(3) The Department of Health is barred from taking any action, disciplinary or
otherwise, against the licensure, certification, residency, admitting privileges or
other professional status or qualification of any of the Plaintiffs on account of
their seeking or having obtained a religious exemption from mandatory COVID-
19 vaccination.
(B). A declaratory judgment declaring that the Vaccine Mandate, both on its face and as
applied by Defendants, is unconstitutional, unlawful, and unenforceable in that:
(1) the Vaccine Mandate violates the Free Exercise Clause of the First Amendment by
depriving Plaintiffs and others similarly situated of the free exercise of religion under a
measure that is neither neutral nor generally applicable but rather favors secular over
religious reasons for exemption from COVID-19 vaccination and specifically targets for
elimination the religious exemptions provided only days earlier under the superseded
Health Order;
(2) the Vaccine Mandate violates the Supremacy Clause by purporting to strip Plaintiff
and others similarly situated of statutory and constitutional protections for religion and
religious accommodation under federal law;
(3) the Vaccine Mandate violates the Equal Protection Clause of the Fourteenth
Amendment by purporting to strip Plaintiffs and others similarly situated of state and
federal statutory protection from discrimination in the matter of vaccination solely
because of the religious grounds on which Plaintiffs seek protection.
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(C). An award of reasonable costs and expenses of this action, including a reasonable
attorney’s fee, in accordance with 42 U.S.C. § 1988; and
(D). Such other and further relief as the Court deems equitable and just under the
circumstances.
Dated: September 13, 2021
Respectfully submitted,
__________________________ _________________________
MMICHAEL G. MCHALE, ESQ. CHRISTOPHER A. FERRARA, ESQ.
(Bar No. 701887) (Bar No. 51198)
Counsel Special Counsel
THOMAS MORE SOCIETY THOMAS MORE SOCIETY
10506 Burt Circle, Ste. 110 148-29 Cross Island Parkway
Omaha, NE 68114 Whitestone, Queens, New York 11357
Telephone: 402-501-8586 Telephone: (718) 357-1040
mmchale@thomasmoresociety.org cferrara@thomasmoresociety.org
Counsel for Plaintiffs Counsel for Plaintiffs
Peter Breen Stephen M. Crampton
Vice President and Senior Counsel Senior Counsel
THOMAS MORE SOCIETY THOMAS MORE SOCIETY
309 W. Washington, Ste. 1250 309 W. Washington St., Ste. 1250
Chicago, IL 60606 Chicago, IL 60606
(312) 782-1680 662-255-9438
pbreen@thomasmoresociety.org scrampton@thomasmoresociety.org
Counsel for Plaintiffs Counsel for Plaintiffs
*Pro hac vice motion pending *Pro hac vice motion pending
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VERIFICATION
I, Der. P , am over the age of 18 and am a Plaintiff in this action. The
allegations that pertain to me in this VERIFIED COMPLAINT are true and correct, based upon
my personal knowledge (unless otherwise indicated), and if called upon to testify as to their
truthfulness, I would and could do so competently. I declare under penalties of perjury, under the
laws of the United States, that the foregoing statements are true and correct.
Executed on S(tunbu- 10, 202)
Da_F
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● VERIFICATION
I, _____________________, am over the age of 18 and am a Plaintiff in this action. The
allegations that pertain to me in this VERIFIED COMPLAINT are true and correct, based upon
my personal knowledge (unless otherwise indicated), and if called upon to testify as to their
truthfulness, I would and could do so competently. I declare under penalties of perjury, under the
laws of the United States, that the foregoing statements are true and correct.
Executed on 9/9/2021
___________
____________________________________
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VERIFICATION
I, _____________________, am over the age of 18 and am
a Plaintiff in this action. The allegations that pertain to me in
this VERIFIED COMPLAINT are true and correct, based upon
my personal knowledge (unless otherwise indicated), and if
called upon to testify as to their truthfulness, I would and could
do so competently. I declare under penalties of perjury, under the
laws of the United States, that the foregoing statements are true
and correct.
Executed on ___________
________________________________
____
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EXHIBIT 11
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Case 1:21-cv-01009-DNH-ML Document 14 Filed 09/17/21 Page 1 of 2
A national public interest law firm defending life, family and religious liberty.
September 17, 2021
By ECF
Honorable David N. Hurd
United States District Judge
Alexander Pirnie Federal Bldg. and U.S. Courthouse
10 Broad Street Utica, New York 13501
Re: Dr. A., et al., v. Hochul, et al., 21-CV-1009 (DNH)(ML)
Dear Judge Hurd:
Plaintiffs strongly oppose the Defendants’ application to schedule oral argument on Plaintiffs’
motion for a preliminary injunction on Friday, September 24, 2021, instead of Wednesday, September 28,
2021, as provided in the Court’s Order granting the TRO. The reasons for our opposition are as follows:
1. The Defendants' written opposition is due on Wednesday, September 22 at 5
p.m. Given that plaintiffs’ counsel would have to travel to Utica on September 23, they
would have less than one business day—literally only a few hours—to review, research and
digest that response and prepare to rebut it at oral argument.
2. Plaintiffs’ counsel are involved in other litigated matters that are very
pressing next week, including co-counsel McHale’s TRO application in another state, as
well as assisting the clients in this matter respecting religious exemptions which, due to the
TRO, are now being granted (multiple plaintiffs) or reconsidered (multiple other plaintiffs).
3. We were dismayed to learn that the Defendants have relied on this Court’s
TRO in arguing against expedited proceedings in the Second Circuit in We the Patriots USA,
Inc. v. Hochul, No, 21-2179, an appeal from denial of a TRO against the Vaccine Mandate
in the Eastern District, at the same time they argue in favor of expediting proceedings this
case even more than they have already been expedited. (See attached letter from Assistant
Solicitor Grube to the Clerk of the Second Circuit.)
4. The Defendants argue for the September 24th date on the grounds that
“Defendants may fully present their positions to the Court in advance of September 27,
2021, the effective date of the challenged regulation.” But the effective date of the
challenged regulation is August 26, 2021, whereas the deadline for compliance is September
27. In any case, this is no reason to schedule argument on the 24th versus the 28th of
September.
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Case 1:21-cv-01009-DNH-ML Document 14 Filed 09/17/21 Page 2 of 2
Honorable David N. Hurd
September 17, 2021
Page 2
In sum, Plaintiffs would be severely prejudiced by the Defendants’ proposed impossible time
constraint, which appears to serve no other purpose than unfairly to advantage the Defendants. We urge
the Court to deny the State’s request.
Respectfully submitted,
s/Michael G. McHale s/Christopher A. Ferrara
Michael G. McHale, Esq. Christopher A. Ferrara, Esq.
(N.D.N.Y. Bar No. 701887) (N.D.N.Y. Bar No. 51198)
THOMAS MORE SOCIETY THOMAS MORE SOCIETY
Counsel Special Counsel
10506 Burt Circle, Ste. 110 148-29 Cross Island Parkway
Omaha, NE 68114 Whitestone, Queens, New York 11357
Telephone: 402-501-8586 Telephone: 718-357-1040
mmchale@thomasmoresociety.org cferrara@thomasmoresociety.org
c: All counsel of record (via ECF)
309 W. Washington Street | Suite 1250 | Chicago, IL 60606 | P: 312.782.1680 | thomasmoresociety.org
“Injustice anywhere is a threat to justice everywhere.” - Dr. Martin Luther King
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