Breaking News on the Second Circuit’s Review of the NY Department of Health Vaccine Mandate and MORE BREAKING NEWS FROM THE SUPREME COURT
As expected, the the Second Circuit has just issued an order reversing the Northern District of New York’s preliminary injunction barring New York from enforcing its COVID vaccine mandate for New York State health care practitioners.
It also affirmed the Brooklyn district court’s denial of the preliminary injunction against the same law filed by We the Patriots.
All we have so far is the order which says that a decision will be issued “expeditiously.” Here is the order FWIW. 2nd Circuit Loss
That’s the second federal circuit court which rejected a challenge to a state law/order requiring mandatory COVID vaccination for health care workers. The First Circuit’s rejection is currently pending on the Supreme Court’s shadow docket. Before this Second Circuit case gets the the Supreme’s shadow docket, we’ll already have some idea from its treatment of the First Circuit’s decision. I would expect info about that case within two weeks or less.
To me it seems like a hard sell and a big ask, because if the Supremes creates even a hint that there is a federal constitutional right to a religious exemption to mandatory vaccination, that would open the floodgates to challenges to mandatory school vaccination. In a sense, you couldn’t ask for a worse group of plaintiffs to challenge vaccine mandates given the prevailing opinion about the vaccine; namely, health care workers who come in contact with sick patients. Go argue that their personal religious freedom and religious sensibilitie are more important than the safety of all their patients. Good luck with that!
I don’t think the Supremes are going to follow minority scientific views on the health issues. And frankly, after listening to the We the People’s attorney discuss the actual religious conviction issue (how he and his clients no longer take Tylenol, Pepto-Bismol, etc, because they learned they were made or studied or whatever with aborted fetal cells), I just don’t think appellate court judges are going to buy it.
Sorry, but that’s how I see this playing out. Not in a pandemic, and not when it could jeopardize the country’s school mandatory vaccine programs. If adults have a constitutional right to a religious accommodation to a vaccine mandate, for sure, the Constitution would require that right for school children as well. Whatever the Supremes would say to distinguish, there would be a bevy of lawyers (including me) filing lawsuits around the country in states which have removed the religious exemption to mandatory school vaccination. The Second Circuit verbalized that fear at the hearing and that possible unintended consequence. I think will be a very important consideration for the Supremes, as it surely was to the Second Circuit panel whether or not the Supremes explicitly say so.
More Breaking News:
Just heard that the Supremes refused to block Maine’s COVID Vaccine Mandate. So now we have the definitive answer. The chances of the Supremes taking up this Second Circuit case on its shadow docket have drove to basically zero.
On to the next battle and I think that will be the 5-11 kids but I think it will be more about mass non-compliance around the country.
Rick Jaffe, Esq.
3 thoughts on “Breaking News on the Second Circuit’s Review of the NY Department of Health Vaccine Mandate and MORE BREAKING NEWS FROM THE SUPREME COURT”
I see your point about the Supremes being concerned about the pandora’s box of school suits, but there is s historical distinction between a fundamental right to earn a living and the mere privilege of children to attend free schooling, correct?
I don’t think so. There is the same kind of general and vague right in each case. There is no constitutional right to work at a place that has employee restrictions and the workers don’t agree with, unless the restriction is based on a suspect class like race. If the restriction is neutral on its face then it can even impair religious rights. Similiarly there might be some kind of right to education under federal and state constitutions and statutes but that general right doesn’t get down to a specific right for a parent to send a unvaccinated child to school without a medical exemption or a PBE or religious exemption if the state has such. That issue was litigated in the post SB 277 cases and a couple years ago in NY,
The thing which most people miss is that there are no absolute rights. Most constitutional law is about balancing competing rights and defining what that right actually is.
This fascist corporatism nevertheless. Nothing based on real science . The “supremes” can go and f themselves and f the mandates.