ALBANY — A federal judge in Utica on Tuesday issued a temporary restraining order against Gov. Kathy Hochul and New York State from proceeding with a Covid-19 vaccine mandate on all health care workers.
The decision by U.S. District Court Judge David Hurd comes a day after the conservative Thomas More Society filed a lawsuit against New York to block the vaccine mandate because it fails to include an exemption for health workers who object to the vaccination on religious grounds.
The lawsuit was brought against Hochul and other state officials by 17 unnamed health care workers, including physicians, nurses and others, including several from Western New York, who argue their legal and constitutional rights are being violated by New York with the vaccine mandate set to kick in on Sept. 27.
The Buffalo News on Monday asked to interview the Western New York plaintiffs, but a spokeswoman for the firm say they all, for now at least, wish to remain anonymous. The court filing Monday said the 17 workers seek anonymity because of "unreasoning official coercion and widespread, media-generated panic" that could leave them facing "ostracization, threats of harm, immediate firing and other retaliatory consequences if their names become known."
The case was brought in the U.S. District Court for Northern New York. Hurd, in issuing the injunction, said the state is temporarily enjoined from enforcing or threatening to enforce the health workers' Covid vaccine mandate.
The Chicago-based Thomas More Society is a conservative legal organization that has sought to block other Covid vaccine mandates and that last year filed challenges in five states won by President Biden in the 2020 presidential election. In the case filed Monday against New York, most of the 17 are Catholics.
The lawsuit says the plaintiffs are all Christians who each have a "conscientious religious objection" to the Covid vaccines "because they all employ fetal cell lines derived from procured abortion testing, development or production of the vaccines."
Pope Francis authorized the Vatican's statement on the controversy, which stated that, given the lethal consequences of the Covid virus, that people could "in good conscience" be given the vaccine without it constituting "formal cooperation" with abortion.
But the lawsuit states that they do not accept some Catholic Church leaders, including the pope, saying they "reject as a matter of religious conviction any medical cooperation in abortion, no matter how 'remote.' "
"What New York is attempting to do is slam shut an escape hatch from an unconstitutional vaccine mandate," Thomas More special counsel Christopher Ferrara said in a statement Monday.
"Never in the history of New York State, never in the history of the world, has a government sought to forcibly impose mass vaccination on an entire class of people under threat of immediate personal and professional destruction," the lawyer added. "This is just another example of how Covid regimes are completely out of control. The federal judiciary has a duty under the Constitution to put a straitjacket jacket on this institutional insanity."
Hazel Crampton-Hays, a spokeswoman for Hochul, said the state believes the vaccine mandate is not legally suspended by the judge's order, but that the state can't enforce the requirement on individuals who claim religious exemptions.
"Governor Hochul is doing everything in her power to protect New Yorkers and combat the Delta variant by increasing vaccine rates across the state. Requiring vaccination of health care workers is critical to this battle," the Hochul official said. She added state officials are "considering all of our legal options to keep our communities safe."
The state Health Department on Aug. 26 formally issued a mandate requiring health care workers in hospitals, nursing homes and other settings to get at least a first dose of a Covid vaccine before Sept. 27. No religious exemptions were part of the order and, unlike other industries, a weekly Covid testing option was not provided for people who do not want to get a vaccine.
Health care entities have been warning unvaccinated employees to follow the state mandate or face disciplinary action, including dismissal. Republicans in the Legislature have been warning Hochul that the health industry, already facing worker shortages in many sectors, could see a staffing crisis if an estimated tens of thousands of workers quit or are fired for refusing to get vaccinated.
The vaccine mandate is a growing concern for some health entities. At Olean General Hospital, officials confirmed Tuesday afternoon that 11 employees — so far — have said they are resigning instead of being required to get the Covid vaccine.
The hospital said it has "grave concerns" about staffing and delivery of care if the vaccine mandate takes effect without any changes, such as regular testing for people who won't get vaccinated. The hospital said it supports all its employees getting vaccinated, but said that 32% have declined so far, which it said is "enough to push the hospital into a disaster status should these employees elect to leave the organization as a result of the mandate."
The decision by Hurd on Tuesday blocks the state Health Department from taking any disciplinary action against health workers who seek or obtain a religious exemption to the vaccine mandate. The judge gave the state until Sept. 22 to file any objections against the plaintiffs ultimate legal bid: to eventually obtain a permanent injunction against the vaccine mandate. He scheduled a Sept. 29 hearing in his Utica courtroom if the state seeks to challenge the matter.
The lawsuit was brought against Hochul, Health Commissioner Dr. Howard Zucker and Attorney General Letitia James.
Among the 17 health workers bringing the lawsuit is "Doctor G," a Catholic who is a board-certified specialist in internal medicine employed by two hospitals "operated by a health service" in Western New York, according to the lawsuit. The doctor also leads an internal medicine residency program in charge of instructing dozen of doctors seeking to fulfill their residency requirements.
The lawsuit claims "Doctor G" sought a religious exemption from his employer but was denied and told to either get a first vaccine dose by Sept. 27 or be denied access to any of the health care system's buildings. The lawsuit says the doctor faces the "imminent loss" of his positions and admitting privileges at his affiliated hospitals and will be "unemployable anywhere" in New York State because of his refusal, on religious grounds, to get vaccinated, and that he will face "irreparable harm" to his occupation, reputation, and professional standing" if the vaccine mandate is permitted to stand.
Hochul on Tuesday afternoon issued her daily Covid virus update, saying 3.48% of the 117,753 people tested for Covid yesterday in New York came back positive; most upstate areas, including Western New York, are considerably higher than the statewide number. Across New York, 2,476 people were hospitalized on Monday, nine times the level from just two months ago.
At least 28 people died in New York hospitals and nursing homes on Monday and the overall death count since the virus first appeared last year now stands at 56,097, according to the federal Centers for Disease Control and Prevention, which, unlike the state, also includes Covid deaths that occur in people's homes, prisons and other settings.
Dr. Joseph Sellers, president of the Medical Society of the State of New York, said the physicians' group is "greatly dismayed" at Hurd's temporary decision to require New York's vaccine mandate include a religious exemption. Sellers said the decision, if it stands, will result in a flurry of attempts to circumvent a "well-reasoned" vaccination mandate that came after the spread of the more easily spread Delta variant.
"No major religious denomination opposes vaccinations, and the Supreme Court has for over 100 years upheld vaccination requirements as a means to protect the public health. We are hopeful that this decision will be reversed two weeks from now when it comes up for consideration again," the Medical Society leader said.
Ferrara, one of the lawyers for the plaintiffs, on Tuesday night called Hurd's decision "a monumental victory for religious freedom" that "quickly saw through New York's arrogant and unconstitutional attempt to preempt federal law."
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