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Justice Gorsuch Pens Scathing Dissent After SCOTUS Allows New York Vaccine Mandate To Stand

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OPINION: This article may contain commentary which reflects the author's opinion.


Supreme Court Justice Neil Gorsuch penned a scathing dissent after the court ruled in favor of allowing a New York vaccine mandate for healthcare workers.

Justice Gorsuch was joined in his dissent by Justices Clarence Thomas and Samuel Alito, but two other Donald Trump appointees, Justices Brett Kavanaugh and Amy Coney Barrett, sided with the liberal justices in allowing the mandate to stay, The Washington Examiner reported.

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The court voted 6 -3 to reject a request that came from 20 anonymous doctors and medical faculty workers, the majority of whom were Catholic, to grant a religious exemption to the vaccine mandate.

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

“In this case, no one seriously disputes that, absent relief, the applicants will suffer an irreparable injury,” he said. “Not only does New York threaten to have them fired and strip them of unemployment benefits. This Court has held that ‘The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’”

Justices Brett Kavanaugh and Amy Coney Barrett, both of whom sided with Democratic-appointed justices to reject granting an emergency injunction over the New York mandate, said in October that the court’s emergency docket was not the proper place to resolve the merits of a similar challenge to Maine’s vaccine requirement and denied the petitioner’s request in that case. Thomas, Alito, and Gorsuch also dissented from the court’s decision not to intervene in the Maine case, with Gorsuch writing a dissenting opinion.

New York introduced its vaccine mandate for healthcare workers while Andrew Cuomo still governed the state in August. His successor, Kathy Hochul, preserved the mandate. The vaccine requirement included a deadline of Nov. 22 for medical personnel to receive at least one dose of the vaccine to continue working, allowing for some medical exemptions — but not for religious reasons.

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Justice Gorsuch argued that the court was “stand[ing] silent as majorities invade the constitutional rights of the unpopular and unorthodox.”

“Facing the imminent loss of their jobs and unemployment benefits, the doctors and nurses before us filed two separate lawsuits seeking a preliminary injunction preventing New York from enforcing its new mandate against them,” Gorsuch said.

“In the first suit, District Judge David Hurd granted the requested relief after concluding that New York’s ‘intentional change in language is the kind of religious gerrymander’ that violates the First Amendment. In the second suit, the District Court reached a contrary conclusion and denied relief without an opinion,” he said.

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“Under the Free Exercise Clause, government ‘cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices,’” the justice said. “As a result, we have said that government actions burdening religious practice should be ‘set aside’ if there is even ‘slight suspicion’ that those actions ‘stem from animosity to religion or distrust of its practices.’”

“New York’s mandate is such an action,” he said. “The State began with a plan to exempt religious objectors from its vaccine mandate and only later changed course. Its regulatory impact statement offered no explanation for the about-face. At the same time, a new Governor whose assumption of office coincided with the change in policy admitted that the revised mandate ‘left off’ a religious exemption ‘intentionally.’”

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“The Governor offered an extraordinary explanation for the change too. She said that ‘God wants people to be vaccinated—and that those who disagree are not listening to ‘organized religion’ or ‘everybody from the Pope on down.’ Then the new Governor went on to announce changes to the State’s unemployment scheme designed to single out for special disfavor healthcare workers who failed to comply with the revised mandate. This record gives rise to more than a ‘slight suspicion’ that New York acted out of ‘animosity [toward] or distrust of’ unorthodox religious beliefs and practices,” the justice said.

“This record practically exudes suspicion of those who hold unpopular religious beliefs,” he said. “That alone is sufficient to render the mandate unconstitutional as applied to these applicants.”

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