So What Case is going to be heard at the Second Circuit Tomorrow?

So What Case is going to be heard at the Second Circuit Tomorrow?

So here’s the deal. We the Patriots as plaintiffs filed two lawsuits in Brooklyn federal court recently. The teachers’ lawsuit challenged the NYC vaccine mandate. The other suit by the group and some health care workers challenged the state vaccine mandate for state health care workers.
Here is the complaint in that health care workers’case. show_multidocs(3)

The district court denied injunctions in both cases. A circuit court judge on Friday granted a stay or administrative injunction in both cases so that the court of appeals panel could take up both cases tomorrow. Last night, the court of appeals denied the stay and denied the request for an injunction pending appeal in the teachers’ case. So the teachers’ case is effectively over (unless they try for an emergency injunction before the Supremes, or they decide to continue to litigate the case despite the denial of the preliminary injunction by both the district and appellate courts).

So that leaves the health care workers’ case against the state, which will be argued tomorrow morning. Complicating things, another federal district judge (in the northern district of New York) issued a TRO barring the same state vaccine mandate for state health care workers on September 14th (Here is my post about that case. ).

The court of appeals noted that that case is not before it in terms of tomorrow’s hearing. While that might be technically true, the argument tomorrow and the panel’s decision will certainly impact the northern district’s case as it involves the same law. The only issue the court of appeals will hear tomorrow is the first amendment free exercise issue. The law doesn’t appear to give health care workers an option for a religious accommodation/exemption. It does allow for medical exemptions. The plaintiffs have a problem with that.

Per previous posts, the only winning arguments on these vaccine issues seem to be those involving religious free exercise, at least in terms of TROs. I believe this is the first court of appeals to address the issue.

I think the second circuit’s decision will be outcome determinative in the northern district case. Meaning, if the panel affirms the Brooklyn district court’s denial of the preliminary injunction against the state law, I expect the state will send the Northern District judge a copy of the decision and seek the vacature of the TRO. If the panel grants the injunction, then the Northern district case is moot because the panel (a higher court) would have already granted the relief sought in the upstate NY case. I think these cases are about legal/constitutional issues only so I don’t see the need for the panel to send the case back for an evidentiary hearing, mostly because the law doesn’t allow for religious exemptions supposedly. So the constitution either requires it or it doesn’t.

Of course, you all know (but hate and don’t accept it), the courts have held that there is no constitutional right to a personal belief exemption. The right to a religious exemption has been litigated in New York after the religious exemption was removed a couple of years ago. So to me, the odds are that the panel is going to affirm the denial of the preliminary injunction.

I don’t see how the courts could deny constitutional protection for the religious rights of kids, but grant their parents employed by the state those rights. I think a medical exemption is different from a constitutional point of view, and even Jacobson at least implied that such a right exists. I think a religious accommodation/exemption is different and more akin to a personal belief against vaccination. EXCEPT of course that there are specific constitutional protections for the exercise of religion, and that might well be a huge difference. Will it be enough? We should find out tomorrow because I think the Court understands that the state and its health care workers need clarity on the issue ASAP.

Rick Jaffe, Esq.

6 thoughts on “So What Case is going to be heard at the Second Circuit Tomorrow?

  1. Rick,
    You say: ” I think a medical exemption is different from a constitutional point of view, and even Jacobson at least implied that such a right exists.”

    I have no idea where the notion of a constitutional right to a medical exemption comes from. It’s not from Jacobson, by my reading.


  2. read it again. It’s all over the opinion both for adults and children,. Specifically that it would be an arbitrary and hence unlawful application of the law if it required vaccination for someone who would be medically injured by the vaccine. That would make it unconstitutional as applied, rather than facially unconstitutional based on a medical condition. Hence the notion that a medical exemption seems to be assumed to exist and constitutionally required.

    1. As I recall, Jacobson himself sought to exempt himself from the mandate because of prior adverse reactions to the vaccine. But the Court refused to entertain his arguments.

      In essence, the Court determined that he wasn’t being forced to be inoculated, and that he had no constitutional right to refuse the (fairly nominal) fine.

      Am I missing your point?

  3. read it again. There is nothing in the case or the record reported in the case which suggests he had a prior adverse reaction. He argued constitutional issues and that some doctors thought the vaccine was bad or dangerous.

    The fact that the opinion states so often that an individual’s medical reason not to get the shot would make the law arbitrary and illegal as to that person reinforces the fact that there was no such argument in the case, at least in terms of the reported record.
    The $5 fine thing which people opposed to vaccines use is a non-starter, and has been since the mid-1920’s based on Zucht and every other case which has upheld mandates based on Jacobson.

  4. Sorry to be so obstinate, but you won’t find mention of Jacobson’s prior adverse reaction because the Jacobson Court refused to entertain these arguments. Look at the prior record (MA Supreme Court) to find these details.

    Jacobson did attempt to make broad constitutional claims, but the Court, adopting what we would now call a rational basis examination, rejected all of his arguments.

    I still see nothing at all, then or now, to suggest an openness by the Court for medical exemptions being constitutionally protected.

  5. I agree with your opinion that you cannot deny children religious exemptions while granting them to adults. Therefore, if the courts rule in favor of the plaintiffs, this should leave the door open to overturn SN277/276, etc. Also, nowhere in the Constitution does it say that pastors or priests are are the authority on religious beliefs; therefore in theory, I should be able to make up my own religion and declare my own religious exemption- employers should not have the power to evaluate them and reject these exemptions either. What is happening in this country is egregious.

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