Judge Grants Temporary Restraining Order in Lawsuit Over New York Vaccine Mandate
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Conservative Legal Group Challenged New York’s Mandate for Healthcare Workers, Calling COVID-19 Vaccines ‘Abortion Connected.’ A Judge Granted a Temporary Restraining Order.

Update, Sept. 14: A federal district judge issued a temporary restraining order on Tuesday, blocking New York State from enforcing a vaccination mandate for healthcare workers who claim a religious exemption.

Image of temporary restraining order text

The original story appears below.

A conservative legal group is suing over New York State’s vaccine mandate for healthcare workers, claiming that COVID-19 vaccines violate their religious rights because they are “abortion-connected.”

The preliminary order, issued by U.S. District Judge David N. Hurd (a Bill Clinton appointee), directs parties to file briefs by September 22, and schedules oral arguments for September 28. For now, though, employers within the state are legally enjoined from imposing consequences on workers who refuse a vaccine on religious grounds.

The complaint, filed by the Thomas More Society on behalf of a group of unnamed “medical professionals” in the Northern District of New York, asks the federal judge to keep their names hidden during the litigation to protect them from being subjected to “risk of ostracization, threats of harm, immediate firing and other retaliatory consequences if their names become known.”

The lawsuit claims that they are entitled to a religious exemption because the vaccines “employ aborted fetus cell lines in their testing, development, or production.” According to pleadings, all three vaccines currently in use in the U.S. — those made by Moderna, Pfizer, and Johnson & Johnson — “employ fetal cell lines derived from procured abortion in testing.”

COVID-19 vaccines themselves do not contain aborted fetal cells. Some opponents of abortion have objected to the fact that some coronavirus vaccines have used cells originally isolated from fetal tissue in various stages of vaccine development and manufacturing, according to a fact sheet on the issue by the North Dakota Department of Health and Los Angeles County Department of Public Health.

“Historical fetal cell lines were derived in the 1960’s and 1970’s from two elective abortions and have been used to create vaccines for diseases such as hepatitis A, rubella, and rabies,” the fact sheet notes.

Such vaccines have been the subject of mandates, without the same controversy, for far longer.

The Thomas More Society, a group which Rudy Giuliani referred to as a “partner” in failed attempts to overturn President Joe Biden’s victory with post-election challenges in Wisconsin, Pennsylvania, Michigan, Nevada, Georgia, and Arizona, filed the federal lawsuit on behalf of the plaintiffs against New York State Health Commissioner Howard A. Zucker, New York Governor Kathy Hochul (D), and New York State Attorney General Letitia James (D).

Before getting to the heart of their claim, plaintiffs first took aim at former New York Governor Andrew Cuomo (D) along with New Jersey Governor Phil Murphy (D).

“The legacy of Cuomo’s medical dictatorship was the second highest COVID death rate per 100,000 in the country,” they alleged, “with New Jersey in first place under the equally draconian and still-ongoing medical dictatorship of Governor Murphy.”

“There is an ongoing FBI investigation into official concealment of the 15,000 COVID deaths caused by Cuomo’s order to return COVID-positive patients to nursing homes after their discharge from the hospital,” the complaint continues.

In August, Texas surpassed New York in COVID-related deaths, and Florida blew past the Empire State in reported cases.

Despite those grim statistics, the complaint states, “There is no longer a public health emergency,” a pronouncement at odds with the U.S. Department of Health and Human Services’s declaration to the contrary. The anonymous medical professions claim the current measures have only been undertaken in response to “incessant media fearmongering over the ‘Delta variant’ and now the ‘Mu variant.'”

Specifically, the regulation challenged in the lawsuit is a public health order issued on Aug. 26, 2021, which requires medical personnel to be fully vaccinated against COVID-19. The regulation allows for an exemption for individuals who can document that a medical professional deemed the vaccine detrimental to their individual health based upon a pre-existing health condition.

The lawsuit calls particular attention to the mandate’s requirement that healthcare providers be vaccinated “continuously,” calling use of that term “ominous,” likening the mandate to regulations in Israel, and hypothesizing that individuals may be required to receive three, four, or more shots in the future.

The plaintiffs argue that healthcare workers, in particular, should be permitted to exercise their own religious objections to the vaccine mandate because medical professionals are “very knowledgeable” on the subject. Per the complaint:

The same “front line” health care workers hailed as heroes by the media for treating COVID patients before vaccines were available, including the Plaintiffs herein, are now vilified by the same media as pariahs who must be excluded from society until they are vaccinated against their will.

Furthermore, because the vaccines are “abortion-connected,” the plaintiffs’ “deeply-held religious beliefs” would be offended by “cooperating with the evil of abortion in a manner that violates their consciences.” The complaint insists that the anonymous plaintiffs “are not “anti-vaxxers” who oppose all vaccines,” but that they are individuals who “believe as a matter of religious conviction that the ensouled human person, made in the image and likeness of God, is inviolable as a temple of the Holy Ghost and that civil authorities have no right to force anyone to be medicated or vaccinated against his or her will, whether or not the medication or vaccine is abortion-connected.”

In addition to the plaintiffs’ claim that the New York regulation violates their religious rights, they also claim that it violates the Supremacy Clause of the U.S. Constitution in that it attempts to supersede the anti-discrimination requirements of Title VII. Furthermore, they raise an Equal Protection Clause challenge, alleging that the mandate “specifically targets Plaintiffs’ sincerely held religious beliefs for discriminatory and unequal treatment as compared with the medical exemptions favored by the State’s impermissible, anti-religious value judgment.”

Christopher Ferrara, an attorney for the Thomas More Society, provided an email statement to Law&Crime on Monday. “What New York is attempting to do,” Ferrara said, “is slam shut an escape hatch from an unconstitutional vaccine mandate.”

“And they are doing this,” he continued, “while knowing that many people have sincere religious objections to vaccines that were tested, developed, or produced with cell lines derived from aborted children.”

Scholars note that the Supreme Court have found vaccine mandates legal and constitutional since the watershed case of Jacobson v. Massachusetts, which decided the question more than a century ago in 1905.

Attorneys for New York State did not immediately respond to request for comment.

[image via Eva Hambach/AFP via Getty Images]

Editor’s note: This story was updated from its original version to include developing news.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos