WE THE PATRIOTS USA, INC., DIANE BONO, MICHELLE MELENDEZ, MICHELLE SYNAKOWSKI, Plaintiffs-Appellants, v. 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. 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.
Docket No. 21-2179; 21-2566
United States Court of Appeals For the Second Circuit
November 4, 2021
August Term, 2021 (Argued: October 27, 2021 Decided: November 4, 2021)
CAMERON L. ATKINSON (Norman A. Pattis, Earl A. Voss, on the brief), Pattis & Smith, LLC, New Haven, CT, for Plaintiffs-Appellants
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,
Mark D. Harris, Shiloh Rainwater, Proskauer Rose LLP, New York, NY, for Amicus Curiae (in No. 21-2179) Greater New York Hospital Association.
Before: WALKER, SACK, and CARNEY, Circuit Judges.
PER CURIAM:
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
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 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
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
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
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 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
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 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
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’
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 defined in the Rule.
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.
As required by New York law, the notice of emergency rulemaking included the Council‘s findings and a Regulatory Impact Statement (the “Statement“). See
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.
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
In affidavits appended to its briefing to this Court and filed in other
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
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 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
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 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
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 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
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. 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).
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
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 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.
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
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 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.
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,
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
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 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
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 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).
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 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 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 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
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 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 employing certain household employees hired before November 1986). The “mere existence of an exemption
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
during which the vaccination remains detrimental to their health. See
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
* * *
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, 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.
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.
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
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.”
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
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.
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
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.
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.
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
Accordingly, the WTP Plaintiffs have not established that they are likely to succeed on the merits of their
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 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
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
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.
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
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. 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.
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.
(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 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.
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.