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.