Court Blocks N.Y. Rule Categorically Denying Religious Exemptions from Healthcare Workers COVID Immunization Mandate

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From Dr. A. v. Hochul, decided yesterday (Oct. 12) by Judge David Hurd (N.D.N.Y.):

On August 26, 2021, the New York State Department of Health adopted an emergency regulation [§ 2.61] that required most healthcare workers to be vaccinated against COVID-19 within the next thirty days. As relevant here, § 2.61 eliminated a religious exemption included in the first iteration of this mandate….

Plaintiffs hold the sincere religious belief that they "cannot consent to be inoculated … with vaccines that were tested, developed or produced with fetal cell[ ] line[s] derived from procured abortions." According to plaintiffs, the COVID-19 vaccines that are currently available violate these sincere religious beliefs "because they all employ fetal cell lines derived from procured abortion in testing, development or production." See also Rausch-Phung Decl. ¶¶ 35–45 (acknowledging that fetal cell lines are widely used in pharmaceutical development and were used in the testing and production of current COVID-19 vaccines).

The court concluded that § 2.61 is preempted by Title VII's requirement that employers (public and private) "reasonably accommodate" employees' religious practices, so long as the accommodation can be done "without undue hardship on the … employer's business":

"Title VII does not demand mere neutrality with regard to religious practices …. [r]ather, it gives them favored treatment." Thus, under certain circumstances, Title VII "requires otherwise-neutral policies to give way to the need for an accommodation."

Upon review, plaintiffs have established at this early stage of the litigation that they are likely to succeed on the merits of this [preemption] claim…. The plain terms of § 2.61 do not make room for "covered entities" to consider requests for reasonable religious accommodations. Instead, § 2.61 obligates all covered entities to "continuously require personnel to be fully vaccinated against COVID-19." And "personnel" is defined broadly, sweeping in "all persons employed or affiliated with a covered entity, whether paid or unpaid … 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."

Plaintiffs allege that some of their employers have revoked existing religious exemptions and/or religious accommodations by pointing to the State's adoption of § 2.61. Plaintiffs also allege that some of their employers have refused to consider exemption or accommodation requests because of § 2.61. Although Title VII certainly does not require an employer in all cases to "accommodate" an employee by necessarily granting them an "exemption," the statute does require employers to entertain requests for religious accommodations and to "reasonably" accommodate those requests absent a showing of undue hardship….

The court also concluded that the plaintiffs were likely entitled to an exemption under the Free Exercise Clause as well:

[T]he Free Exercise Clause "protect[s] religious observers against unequal treatment" and against "laws that impose special disabilities on the basis of religious status." However, the Free Exercise Clause "does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." …

Upon review, plaintiffs have established at this early stage of the litigation that § 2.61 is not a neutral law. As the Supreme Court has explained, "the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history" are all relevant circumstantial evidence in detecting a lack of neutrality.

Zucker's August 18 Order, which was imposed on a summary basis, included medical and religious exemptions to COVID-19 vaccination. The Health Council's adoption of § 2.61, which was imposed on a similar summary basis just eight days later, amended the vaccination mandate to eliminate the religious exemption. This intentional change in language is the kind of "religious gerrymander" that triggers heightened scrutiny.

Plaintiffs have also established at this early stage of the litigation that § 2.61 is not generally applicable. A law is "not generally applicable if it is substantially underinclusive such that it regulates religious conduct while failing to regulate secular conduct that is at least as harmful to the legitimate government interests purportedly justifying it."

Section 2.61's regulatory impact statement claims that "[u]nvaccinated personnel in [healthcare] settings have an unacceptably high risk of both acquiring COVID-19 and transmitting the virus to colleagues and/or vulnerable patients or residents, exacerbating staffing shortages, and causing unacceptably high risk of complications."

But as plaintiffs point out, the medical exemption that remains in the current iteration of the State's vaccine mandate expressly accepts this "unacceptable" risk for a non-zero segment of healthcare workers. Although defendants claim that they expect the number of people in need of a medical exemption to be low, the Supreme Court has recently emphasized that "[c]omparability is concerned with the risks various activities pose," not the reasons for which they are undertaken. Thus, absent further factual development the Court cannot conclude that § 2.61 satisfies the requirement of "general applicability."

Finally, plaintiffs have established at this early stage of the litigation that § 2.61 is likely to fail strict scrutiny. To satisfy strict scrutiny, defendants must show that the challenged law advances "interests of the highest order" and is "narrowly tailored" to achieve those interests.

"Put another way, so long as the government can achieve its interests in a manner that does not burden religion, it must do so." …

"Stemming the spread of COVID-19 is unquestionably a compelling interest." … However, [defendants] have failed to establish that § 2.61—and in particular, its intentional omission of a religious exemption—is narrowly tailored to address that public health concern.

"Narrow tailoring requires the government to demonstrate that a policy is the 'least restrictive means' of achieving its objective." The asserted justification  "must be genuine, not hypothesized or invented post hoc in response to litigation." "And the government must show that it 'seriously undertook to address the problem with less intrusive tools readily available to it.'"

Defendants have not made this showing. According to the "alternative approaches" component of § 2.61's regulatory impact statement, the Health Council considered two alternatives: (1) daily testing before each shift; and

(2) wearing appropriately fitted N95 face masks at all times.

However, there is no adequate explanation from defendants about why the "reasonable accommodation" that must be extended to a medically exempt healthcare worker under § 2.61 could not similarly be extended to a healthcare worker with a sincere religious objection.

Nor have defendants explained why they chose to depart from similar healthcare vaccination mandates issued in other jurisdictions that include the kind of religious exemption that was originally present in the August 18 Order. Pl.'s Mem. at 17 (citing Illinois and California COVID-19 regulations that include religious exemption language); see also Roman Catholic Diocese  of Brooklyn (finding tailoring requirement unsatisfied where, inter alia, the challenged restriction was "much tighter than those adopted by many other jurisdictions hard-hit by the pandemic").

In sum, "[t]o meet the requirement of narrow tailoring, the government must demonstrate that alternative measures imposing lesser burdens on religious liberty would fail to achieve the government's interests, not simply that the chosen route was easier." Defendants have not done so….

The court closed, in a discussion that seems to be tailored to the Title VII analysis (though the court doesn't expressly so limit it):

The question presented by this case is not whether plaintiffs and other individuals are entitled to a religious exemption from the State's workplace vaccination requirement. Instead, the question is whether the State's summary imposition of § 2.61 conflicts with plaintiffs' and other individuals' federally protected right to seek a religious accommodation from their individual employers.

The answer to this question is clearly yes. Plaintiffs have established that § 2.61 conflicts with longstanding federal protections for religious beliefs ….

To reiterate, these conclusions have nothing to do with how an individual employer should handle an individual employee's religious objection to a workplace vaccination requirement. But they have everything to do with the proper division of federal and state power….

And here's the key part of the court's injunction:

Defendants, their officers, agents, employees, attorneys and successors in office, and all other persons in active concert or participation with them, are preliminarily ENJOINED from enforcing, threatening to enforce, attempting to enforce, or otherwise requiring compliance with § 2.61 such that: … Section 2.61 is suspended in operation to the extent that the Department of Health is barred from enforcing any requirement that employers deny religious exemptions from COVID-19 vaccination or that they revoke any exemptions employers already granted before § 2.61 issued ….

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  1. As I’ve posted on other Covid threads, I just am not getting the court’s conclusion that this will likely fail strict scrutiny, since it makes accommodations for those who can’t take the vaccine for medical reasons.

    If I am understanding this reasoning correctly; this means that if a blind or deaf person is allowed to have a guide dog on an airplane (in a movie theatre, in a restaurant, etc), then it’s okay to forbid mere “emotional support” animals, but it’s NOT okay to forbid animals that are required by your personal good-faith belief that your religion mandates that your dog accompany you. This seems crazy to me. I’m not seeing how this religious exemption does not swallow the rule.
    As a long-time Pastafarian, I’m suddenly coming to the realization that my religion calls for me to bring my animals with me whenever possible. No, really. Stop giggling…it’s totally part of my religion and is fundamental to my spiritual development. How bigoted of you to disbelieve me. Or to express the tiniest bit of skepticism in my 2021 afflatus.

    1. Your example is no more rational than the original COVID vaccine mandate. I the state can mandate a vaccine that doesn’t prevent transmission, then you should be able to take your sacrificial chickens with you on the plane.

    2. “I just am not getting the court’s conclusion that this will likely fail strict scrutiny, since it makes accommodations for those who can’t take the vaccine for medical reasons.”
      -Basically speaking, something will fail strict scrutiny if there is a less restrictive way the government can accomplish its objectives, and it doesn’t do so.

      From the example above, the government clearly has exceptions for medical reasons. So, since there is a less restrictive way (the exceptions), then it will fail in denying religious exemptions.

      Imagine a separate case though…a government requirement that ALL people be vaccinated who work in a particular hospital ward, no matter the medical or religious conditions. In such a case, a person who couldn’t be vaccinated for medical reasons literally couldn’t work in the hospital. Likewise for a person with religious exemptions. Then the religious exemption wouldn’t necessarily fail strict scrutiny.

      On a larger note, our society is built around respect for our differences, and our different beliefs, on all things. We may not need to agree with the different beliefs, but we should endeavor to respect them. Whether it be religion, sexual orientation, gender orientation, or whatnot. You may like men, or may like dressing as a woman, and that is OK. I don’t necessarily need to agree with your beliefs, but I can respect them. We should endeavor to do so, when possible.

      And that doesn’t mean that all beliefs necessarily need to be tolerated. There is a balance with society. A religion that required human sacrifice, or a sexual orientation of pedophilia would cross certain lines that are unacceptable to society as a whole. But where we CAN tolerate beliefs, religious or otherwise, where people largely are practicing on their own, with other consenting adults, we should.

      1. So … would you support polygamous/polyandrous marriages? How about sibling marriages (after the age of consent)? And what is wrong with human sacrifice if the sacrificee is a consenting adult?

        1. The human sacrifices are tacky. But plural marriage, of course. Sibling marriages are gross but should be allowed.

          1. How would voluntary human sacrifice differ from voluntary end of life decisions or assisted suicide?

            1. That is an exercise left to the student

        2. “support?” No. “Support your right to choose?” Yes. There’s a difference.

          As for “Human sacrifice”, among many issues, the biggest issue there is “consent” and the major potential for abuse. If you sign a contract saying you agree to be sacrificed, but then try to bail out just before…and the other guy goes “nope”…it’s not like you’re going to be around to argue “but I said no!” afterwards. That, and the abuse of that process lead to major issues.

          On the other hand, suicide is legal. If you choose to off yourself for religion…or for another reason…that’s your choice. It’s when you involve someone else it becomes a more troubling issue.

          All this being said, as a society, suicide should be discouraged. But discouraged isn’t the same as banning it.

    3. This seems crazy to me. I’m not seeing how this religious exemption does not swallow the rule.

      See Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3rd Cir 1999): if a law provides a medical exception, then it typically must provide a religious exception also. (It’s not a pure Title VII case because it involved a 1A claim, but it’s instructive.)

    4. Before you reach strict scrutiny, you have to determine whether the law is generally applicable. It’s not generally applicable if “it regulates religious conduct while failing to regulate secular conduct that is at least as harmful to the legitimate government interests purportedly justifying it.” In your hypothetical, is permitting guide dogs for the blind just as harmful to the government interest advanced by forbidding them for everyone else (including for religious purposes)?

      If the state can convince the courts the answer is no, then the law is generally applicable and no guide dogs will be allowed for religious reasons. What isn’t clear is what burden the state must overcome in establishing this claim.

    5. I agree that religious objections to being vaccinated are hard to see (other than the case where stem cells were used in the research, perhaps), but the government can’t unequivocally take 1A rights away from a group of people in a prejudicial manner like this law attempted to do.

    6. The failure is in your assumption at the end that skepticism is not allowed. All discussions of the religious exemption require the religious belief to be sincerely held. Our courts and even employers have lots of experience evaluating whether beliefs are in fact sincere or are mere pretext. Granted, those are fact-intensive questions requiring investigation. But they have been sufficient to keep exemption from swallowing the rule for a century or more in the military context of conscientious objectors. No reason that won’t apply equally here.

  2. Levels of scrutiny run amok, during an existential crisis.

    At a minimum, require that every person seeking a religious exemption on this basis show previous rejection of other medical procedures on this same basis. To assure that the public interest is protected alike with the religious interest, rule that “the basis for exemptions must be genuine, not hypothesized or invented post hoc in response to litigation.”

    But really, even that is not enough. Where is consideration for the interests of patients who cannot be effectively vaccinated? Medical conditions which result in patients experiencing vaccine intolerance or vaccine failure tend to require those patients to be exposed to medical facilities and medical personnel at greater frequencies than others. Monthly or weekly patient exposures to hospital environments are commonplace. Let this decision stand, and odds of survival for such compromised patients will be notably reduced.

    This decision is literally a balance, irresponsibly weighing the life or death of medically compromised patients in one scale, against highly attenuated religious liberty claims in the other. If it is indeed the rule that, “Title VII does not demand mere neutrality with regard to religious practices …. [r]ather, it gives them favored treatment,” then it is time to rule out that extreme bias in the law, at least in cases where bystanders will pay with their lives for ruling otherwise.

    1. …as plaintiffs point out, the medical exemption that remains in the current iteration of the State’s vaccine mandate expressly accepts this “unacceptable” risk for a non-zero segment of healthcare workers.

      1. Gandydancer, that is right. Non-zero in this instance meaning a very small number, an inelastic number, which applies only to cases inflicted by verifiable happenstance, and not as a matter of private choice. That is compared instead to the extremely large number of would-be vaccination avoiders, a large number made unreliable by its elastic responsiveness to other-than-religiously-motivated vaccine avoidance.

        There is no reasonable comparison there. Ours is a secular state, not a religious one. On religion, we let people make their own choices. To keep that system of religious liberty in operation, we have to be prepared in instances like this one—where other lives are involuntarily put in jeopardy—to tell the religious to live with their choices.

        It is strained to the point of being bogus to say this vaccine mandate targets religion. This court decision insists in so many words on favoritism for the religious. If that must become the guiding light of public health policy, then a great many Americans ought to conclude that unbounded liberty claimed by the religious is an unbounded threat to liberty for everyone else.

        1. ” in instances like this one—where other lives are involuntarily put in jeopardy”
          This statement assumes as fact that the number of daily new cases will fall as the percentage of fully vaccinated persons increases.
          In fact, the data of the UK (70%), Sweden (67%), Germany (~70%) are inconsistent with that assumption. The data from Norway do show a decrease as the %tage increased from 65% to 70%. Denmark showed a slight decrease from 70% to 75%, but past 75% the case rate has begun to increase again.
          Assumptions and wishful thinking are not medical evidence. You can track the numbers using Oxford University’s Our World in Data

          1. Other changes occur when a society reaches certain percentages, like opening up of restaurants, people more willing to go into larger groups without masks, etc. The numbers show effect but not cause. It could simply be a coincidence between the rise of the delta variant at the same time vaccines reached the 70% range in wealthier nations. San Francisco has one of the highest vaccination rates in the country and one of the lowest COVID rates and a very low hospitalization rate. Compare child hospitalization in any large Florida city, for example, with SF’s.

            1. Shawn,
              The delta variant arrived before any country reached such high rates.
              One can see that clearly if one compares the times series of infections in multiple countries with the reports of first delta cases.
              Looking at a few select cities might suggest investigations to be made on a systematic basis over a wide range of societies with very different medical facilities, public health policies, and demographics. But single city cases don’t prove anything in themselves. They are only a starting point and also can be misleading.

            2. One would like to tease apart contagiousness and virulence of variants from from other factors that influence contagion such as social norms and public heath policies
              In that regard, the scandanavian countries are a useful case study in that the COVID control measures were very different among them, but the patterns (though not magnitudes) of time variations are extremely similar and highly correlated.

    2. “Title VII does not demand mere neutrality with regard to religious practices …. [r]ather, it gives them favored treatment,” then it is time to rule out that extreme bias in the law, at least in cases where bystanders will pay with their lives for ruling otherwise.

      Or favored treatment if a giant government union. Or politically correct mob. Or nobody is watching and you need a fundraiser.

      If you go after religious exemptions, all the rest and more should fall first.

      What a lovely fall day. Grass covered with leaves. Screw the neighbors.

    3. This isn’t the polio vaccine. If the COVID vaccine conferred real immunity then the vaccine mandates might have some moral weight to them. If the vaccinated can still transmit the disease, and the vaccine only mitigates individual risk, it’s like legally mandating that you wear sunscreen or lose your job.

      1. Schu, it is undeniably apparent that unvaccinated people transmit contagion at higher rates than vaccinated people do, and the difference is not a small one. To confirm that for yourself, compare state-by-state (or county-by-county) vaccination rates with Covid case rates.

        It is a mistake to suppose that face-to-face transmission is the only issue. The effects of pandemic suppression by mass vaccination are collectively the most protective results of vaccination.

        1. Stephen Lathrop
          October.13.2021 at 7:59 am
          Flag Comment Mute User
          >Schu, it is undeniably apparent that unvaccinated people transmit contagion at higher rates than vaccinated people do, and the difference is not a small one. To confirm that for yourself, compare state-by-state (or county-by-county) vaccination rates with Covid case rates.<

          True – If the vaccine mandators wanted to be intellecually consistent (which is obviously hard for them), they would exempt to previously covid infected, since their ability to carry and transmit the virus is even lower than the vaccinated.

          1. Tom is not a lawyer or doctor. What is his expertise?

            1. David Nieporent
              October.13.2021 at 9:38 am
              Flag Comment Mute User

              Vastly greater than the expertise you have displayed on the topic

            2. Stop being dishonest, Dave. You know there are doctors AND lawyers who have made this claim.

          2. Retarded for two reasons (at least) Tom:

            1. When the previously infected get vaccinated, they become even less likely to transmit the disease. So previous infection is not a reason to avoid vaccination.

            2. Previous infection gives you good protection _on average_. But its degree of protection varies by individual much more than the vaccines’ do. The vaccines are very consistent, but the disease itself affects different people in different ways as we all know. So even if you’ve had covid, you might not be very well protected. Better to get vaccinated.

            If there were a vaccine shortage, you might have a point about who should get one first. But now that there are enough for everyone, everyone should get one.

            1. Randal
              October.13.2021 at 12:57 pm
              Flag Comment Mute User
              Retarded for two reasons (at least) Tom:

              1. When the previously infected get vaccinated, they become even less likely to transmit the disease. So previous infection is not a reason to avoid vaccination.

              That incremental improvement is exceedingly small and declines rapidly after 5-6 months.

            2. >2. Previous infection gives you good protection _on average_. But its degree of protection varies by individual much more than the vaccines’ do. The vaccines are very consistent, but the disease itself affects different people in different ways as we all know. So even if you’ve had covid, you might not be very well protected. Better to get vaccinated.<

              randal – Thats not what the raw empirical data shows

              A) the reinfection rate for individuals with prior covid infections is running close to 1%.
              B) the vaccines effectiveness has shown to drop rather rapidly after 6 months, Pfizer is estimated to only be 60% effective after 5-6 months. See the Israeli study.
              C) Depending location, the breakthrough infections for vaccinated individuals is ranging from 10% to 30% of the current covid cases (Minnesota aug/Sept 2021 covid cases show approx 25-28% of the cases are from people who were vaccinated. Vs the 1% of reinfections.
              D) normalizing for the 45m previously covid infected individuals and the 200m vaxed individuals, the vaxed individuals are 4-6 times more likely to get infected than the previously covid infected individuals.

              bottom line, your statements is not well supported by the actual data

              1. You clearly don’t understand how numbers work.

                A reinfection rate is not comparable to an effectiveness. If 1% of people get reinfected, 1% of them get covid. If a vaccine is 60% effective, it doesn’t mean that 40% of the recipients get covid!

                A percentage of cases coming from one group of people is not comparable to a reinfection rate. If 25% of the people getting covid are vaccinated, it doesn’t mean that 25% of vaccinated people get covid!

                Even if your numbers are right, you obviously don’t understand what they mean. So why are you saying stuff?

                Retarded!

                1. Randal,
                  “If a vaccine is 60% effective, it doesn’t mean that 40% of the recipients get covid!”
                  The man never claimed that.
                  “If 25% of the people getting covid are vaccinated, it doesn’t mean that 25% of vaccinated people get covid!”
                  That is true. What percentage of vaccinated people get COVID depends on both the effectiveness of the vaccine and the degree of exposure that vaccinated people subject themselves to AND the degree to which relevant co-morbidities are in the vaccinated population.

            3. Randal,
              Re #1: Be accurate. When the previously infected get vaccinated, they become even less likely to get the disease. If they are less likely to get the disease, then they are less likely to transmit the disease.
              However, previous infection does raise the risk of moderate to serious side effects. So the conclusion is not so clear cut as you state. But in general I agree with you.
              Re #2: The degree of fall off in efficacy and in efficiency of protection of the vaccines is also variable among individuals. If one had only a mild case the level of protection might not be so great as if one had an infection with a high viral load. Again the rational is not so clear cut as you write. But here again I agree, “Better to get vaccinated.”

              Question: Why do either of those reasons for a recommendation justify a mandate? When the statistics of CFR vs %tage vaccinated and the statistics of new cases vs. %tage vaccinated do not justify the usual statement that refusal is equivalent to killing others.

              1. Question: Why do either of those reasons for a recommendation justify a mandate?

                Because there’s no reason not to get vaccinated. At least, no reason that isn’t already accommodated.

                You’ll probably say something about “serious side effects” but they are so rare that that can’t be taken seriously as a reason. You’re more likely to get in a car wreck on the way to the vaccination station.

                1. Randal
                  1) “Because there’s no reason not to do it” is not a reason for doing anything.

                  2) Some people do have serious side effects. My son is one. Vaccination has seriously damaged his ability to walk without a heavy walking stick. The effect started after the first shot and got worse after the second shot.
                  The stuff about getting into a car wreck is propaganda

                  1. I gave you the reasons for the mandate. The vaccine makes everything better.

                    There are only reasons to get the vaccine. There aren’t (serious) reasons not to (that aren’t already accommodated). The stuff about walking sticks and swollen scrota, like car wrecks, is sad but also propaganda, not science.

                    1. Randal,
                      The mandate does not make the country politically better and from the point of view of the total citizenry, the benefit is far from certain and far from large.
                      AT the personal level, I have already gotten a booster shot and I recommend to friends that they should take the vaccine absent a strong medical reason.
                      The fact that my son can’t walk properly because of the vaccine is not propaganda. It is a fact that you’d rather disregard. Your dismissal of medical reasons is a matter of politics and medical ignorance.

                    2. Now who’s the one resorting to political rhetoric?

                      The fact that your son can’t walk for whatever reason is sad, but in this context, propaganda. It’s not an argument against the data. We know the rate of serious side effects and it’s stupid low. Saying “walking stick” doesn’t rebut the data or change the risk analysis. It’s just a scare tactic.

                      The only people for whom this is political are on the right. They chose to make a stink for no reason at all, and now they’re saying vaccines are politicized. There’s no sense in which vaccines are political.

                      It’s the same trick they’re pulling with elections. First sow a lot of meaningless fear, uncertainty, and doubt. Then say “look at all the fear, uncertainty, and doubt around elections! That by itself justifies audits and voter restriction laws!” thus generating even more fear, uncertainty, and doubt, and politicizing stuff like the US Postal Service along the way, which there’s no reason to politicize.

                      It’s a stupid game that’s designed simply to divide Americans against each other for no reason other than the accumulation of power.

                    3. … and, anyone with a legitimate medical concern can get an exception, as it should be.

                    4. Randal,
                      To reiterate, you have claimed that there are NO legitimate medical reasons to decline vaccination.
                      How is an identified severe consequence of a Pfizer covid vaccination propaganda? It is evidence directly related to the treatment and control of the disease being discussed. And who said anything about swollen scrota?
                      It seems that you don’t want to recognize evidence when it is inconvenient to your point of view. You don’t want to recognize that 5 Scandinavian countries have halted Moderna use for persons under 30 because of a serious side effect of that vaccine. How is that propaganda? How is that denying the data?
                      People that must take immuno-suppressant drugs may also be advised against vaccination.
                      Evidence is the starting point for science, but you are ruling it out by fiat.
                      I said that your comment about car crashes was mere propaganda because auto accidents have NOTHING to do with SARS-CoV-2. Can’t you see a difference?

                      And then you launch into some yadda yadda about elections. I don’t care about that issue in this context as it has NOTHING to do with SARS-CoV-2. (By the way, Scandinavians cited above have nothing to do with US politicians, elections, and the US right)

                      If you want to discuss issues related to this virus stay on point or politely agree to disagree.

                    5. I never said there are no legitimate medical reasons to decline a vaccination. By all means, decline the vaccination if you have a legitimate medical reason.

                  2. “Randal
                    October.13.2021 at 11:40 pm
                    … and, anyone with a legitimate medical concern can get an exception, as it should be.”

                    Ah now you agree. There are legitimate medical reasons for an exemption. That is want I said in the first place and what you argued against.

                    I am glad to see that we finally agree

                    1. Perhaps our disagreement is that I don’t think “I’m afraid of the side effects,” with nothing more, counts as a legitimate medical reason. If you have real, diagnosed, contraindicated condition, that’s a legitimate medical reason.

                2. Please note that Finland has joined Sweden, Denmark and Norway in either banning or discouraging young adults or teens from getting the Moderna COVID-19 vaccine, because of the increased risk of myocarditis — heart inflammation.

                  Political rhetoric is not evidence based medicine

        2. “it is undeniably apparent ”
          Why don’t you explain the biological science for that “apparent” statement. What are the statistics to substantiate it.
          Let’s talk about evidence based medicine rather that public health politics.

          1. He gave the evidence: the inverse correlation between infection rates and vaccination rates. Are you saying that’s not “undeniably apparent” evidence?

            1. In fact his assertion is NOT substantiated by the medical statistics

            2. For one example (Sweden and Germany are others)
              Denmark with 75% fully vaccinated has seen an increase over the past three weeks. I’d be wary of making predictions or statements that one’s wishes are undeniably apparent.

              1. I don’t see how that in any way contradicts his statement that “unvaccinated people transmit contagion at higher rates than vaccinated people do.” Are you saying that if fewer people had been vaccinated in Denmark, the increase in cases wouldn’t have happened? That seems mad.

                1. I am saying that the increase in cases would likely have happened regardless of the vaccination program in Denmark.
                  What seems mad to you does not have to correspond to the ground truth, because you are denying the possibility of the ground truth.
                  The virus “doesn’t care” what you and I think.
                  I really suggest that you download the statistics and spend hours staring at the data and forgetting about politics. That is the way science is done.
                  After that you can decide what marginal benefits are worth what societal costs.

                  1. I have “spent hours staring at the data and forgetting about politics” as you know. Having done so, I can vouch that it is in fact “undeniably apparent” that “unvaccinated people transmit contagion at higher rates than vaccinated people do.”

                    1. Well, I have done the same and disagree.
                      I am a research scientist by training and practice.
                      I would be interested to know your primary data source.
                      I’ll analyze it myself. Maybe I’ll change my mind

                    2. “staring at the data “… it is in fact “undeniably apparent” that “unvaccinated people transmit contagion at higher rates than vaccinated people do.””

                      The problem Randal is that there are no on-point data available. First you’d have to tease apart data on unvaccinated persons into 1) unvaccinated previously covid-naive and 2) unvaccinated previously covid-recovered. Those data either do not exist or are unavailable.

                      Second, to substantiate your claim you would need measurements of the distribution of viral titres in the following populations:
                      1) unvaccinated previously covid-naive, 2) unvaccinated previously covid-recovered, 3) vaccinated previously covid-naive. Those data either do not exist or are unavailable.

                      But if you know of such data I would most most interested to see it for my current research

      2. It’s exactly like the polio vaccine. Both prevent you from getting the disease, which in turn prevents you from transmitting it to other people.

        There’s an open question as to whether the vaccines reduce transmission risk for those who do get the disease, but there’s a huge societal benefit from just preventing people getting the disease and subsequently spreading. around especially where we’re talking with a highly contagious variant such as Delta.

        1. Then why are the vaccinated still being forced to wear masks?

          1. Because too many people lie about being vaccinated?

          2. This is kind of like asking “if seat belts save lives, why do you need air bags?” The vaccines are (considerably) more than 0% effective, but less than 100% effective, and the Delta variant is very contagious. Masks reduce transmission for the people where the vaccine doesn’t work.

            Having said that, I think some places are over-doing it on mask mandates. I prefer, e.g., NYC’s approach of vaccine mandates but then easing off on mask mandates. If more of the population was vaccinated we’d have a lot less community transmission and less need for masking.

            1. jb
              October.13.2021 at 12:22 pm
              Flag Comment Mute User
              This is kind of like asking “if seat belts save lives, why do you need air bags?”

              Interesting point – which goes to the concept of marginal cost v marginal benefit. The last study I saw on that subject (15 or so years ago) showed seatbelts reduced fatalities in what would be a fatal crash by approx 42%. Seat belts and air bag improved the survivability to approx 43-45%. Air bags alone was high 30’s% (speaking from memory) . The primary point is that the incremental benefit was relatively small.

              1. You’re directionally correct. There was a paper back in 2001 that showed seat belts as being 48 percent effective, air bags were 14 percent effective, but combined you only got to 53 percent effective.

                That paper was written in the era of only front airbags, though. Side air bags considerably (up to 52%) reduce risk to drivers from side-on collisions that seat belts don’t help as much with.

                I do agree that thinking about marginal costs vs. benefits makes sense, though. I view both mask wearing and vaccination as very low-cost interventions that have a modest (for masks) and very large (for vaccines) benefits, whereas, e.g., enforced distancing is a very expensive solution that is only somewhat effective.

        2. The COVID vaccine is not anywhere close to 100% effective. Polio was eradicated. COVID never will be, no matter the mandates.

        3. It’s not really like the polio vaccine.

          The polio vaccine has near 100% efficacy (99% to 100% with 4 doses).

          This vaccine has far more modest effects, with efficacy ranges from 70% to 90%. A sizable percentage of people (30-40%) with the vaccine get COVID anyway, and can continue to transmit it. Because of that, the societal effects are much less dramatic.

          1. Are your efficacy rate statistics largely determined by the much larger percent of the population at large that willingly got the polio vaccine? I wonder if this is known.

    4. So you ignored the legal analysis under the strict scrutiny rubric developed over several decades, in favor of your own moral/healthcare analysis. Got it. In an emergency, all rules must go.

      Of course, several dictators used real emergencies combined with then manufactured constant “emergencies” to take control of a society for nefarious reasons.

      All rules must bow to emergencies.

      1. Jjh, strict scrutiny is a dictatorial rule imposed by courts. It is readily abused by would-be dictators in judges robes. On what principled basis do you excuse that abuse of the nation’s liberty, compared to similar abuses to which you object?

        1. Stephen: Strict Scrutiny is a rubric for analyzing laws the Supreme Court has used for ~70+ years.

          The Supreme Court is committee, not a dictator; it has no power to write, enforce, or execute laws, or control the military. As such, the justices are not—and cannot—be a “dictators.”

          More importantly, Strict Scrutiny was introduced in United States v. Carolene Products Company, 304 U.S. 144 (1938)—where the court upheld a law prohibiting the sale of filled milk for public health reasons. Obviously, that wasn’t the act of a dictatorial Supreme Court.

          The fact is the law in this article failed the Strict Scrutiny standard. It is the correct standard, and correct result under our Constitution. There is no abuse.

          The problem I identified is not Strict Scrutiny, but instead people who think “rules/laws be d@mned! We have an emergency!”

          This is faulty thinking, and it is how virtually all real dictators came to power: claiming the emergency de jure justified ignoring the law.

        2. Jjh, strict scrutiny is a dictatorial rule imposed by courts. It is readily abused by would-be dictators in judges robes.

          That’s… not what dictatorial means.

          “You’re acting like a dictator!”
          “How?”
          “You won’t let me impose my will on you.”

          1. Agreed, Mr. Nieporent.

        3. “strict scrutiny is a dictatorial rule imposed by courts. ”
          Wow! Another brilliant legal analysis by our retired newspaper man

      2. Which is happening now in more areas than public health.

        1. Right? And watching fools cheer it on the name of “public health” is appalling.

          Don’t they see they are the frog being slowly boiled in a pot of water?

          The government says: “Pay no attention to those ‘guaranteed’ rights we destroyed. Trust us, you are better off without those rights because pandemic.”

          1. Since vaccines have been mandated during various pandemics since George Washington’s presidency, that frog would have been well and truly boiled long, long ago.

            1. Fun fact: Jacobsen never got the polio vaccine. People always leave out that part. He paid a $5 fine ($150 today).

              Since then, K-12 Schools had vaccine requirements, but they weren’t enforced. Same for most colleges. No students were kicked out given the schools needed money from their attendance.

              The only real “mandate” was the military—which, outside the draft, was optional. We never had people truly firing nurses during a health crisis, firing people in non-healthcare related jobs, nor depriving people of access to to public goods, or common shops. We also never had people actively censoring speech, nor people trying to deprive people of health insurance they paid for over a vaccine.

              And none of this was ever done over a virus that has a 98+% survival rate.

    5. existential crisis

      And … scene.

    6. This decision is literally a balance, irresponsibly weighing the life or death of medically compromised patients in one scale, against highly attenuated religious liberty claims in the other.

      I mean, yes, literally it is.

      1. Or to put it another way, yes, that’s kinda the whole point.

    7. Supposedly, some level of fetal tissue was used in the development of the vaccine (I have no knowledge of whether that is factually true or not).

      For a segment of the pro-life crowd, life is sacred, which is a sincerely held religious belief. A very extremely held religious belief.

      1. How would a religious claimant’s record of acceptance of other vaccines influence the analysis?

        1. Almost all prior vaccines were developed prior to the advent of using fetal tissue in the development.

          Its the use of fetal tissue that is the source of the conflict with the sincerely held religious belief.

            1. Facts don’t matter, just the statement that one’s religious beliefs are sincere.

        2. Below is one Catholic take on the issue. But here are two obvious things from recent history :

          (1) Today’s Right is the pro-Covid party. There is no tactic or measure against the disease they haven’t fought , including vaccinations. They told their followers to believe the disease isn’t serious, its effects are exaggerated, the statistics are phony, people’s deaths aren’t real, medical experts are evil villains, all precautions are useless, and secret miracle cures are being hidden from us. The Right will use ANY excuse to protect their favorite disease, including spurious ones based loosely on religion.

          (2) Likewise, the anti-Choice crowd is always looking for opportunities to expand their favorite form of “righteousness” into broader consumer markets.

          “Vaccine development and production over the last several decades has often relied upon some cell lines that regrettably were originally developed from cells obtained from two fetuses that were aborted in the ‘70s and ‘80s. The Pfizer and Moderna vaccines are not dependent on these cell lines. They were developed using different technology relying on ribonucleic acid (RNA) from the virus itself. Even though the vaccines may have been tested using compromised cell lines, this does not establish a connection between the vaccine recipient and the abortion. Consequently, use of these vaccines is ethically sound.”

          https://www.cacatholic.org/CCC-vaccine-moral-acceptability

      2. Tom,
        I understand, but don’t have conclusive testimony, that the so-called use of fetal tissue is the use of cell lines that originally derived from fetal tissue many years and many tens of cells generations ago. Such highly attenuated claims ought to be heard but don’t command necessary accommodation as they must have many violated instances in the claimants life.

        1. HEK 293 cell lines are used in the development/testing phase of the various c19 vaccines including Moderna & Pfyzer. In a few vaccines these lines are apparently also included in the formula – J&J and Astra.

          Yes these cell lines came from a fetus some 50 years ago and are obviously not the same actual cells but derived variant/clones of same.

          Anyway, does it matter if the fetus parts/cells whatever were utilized? I mean, if you truly believe that a fetus part or cell is in the actual vaccine, then will your religious exemption hold? It is seemingly an absurd question however the tenant of belief irrespective of empirical proof is, well, religion. How does a Court deal with this?
          Why is one’s belief in the fact of the existence of something in a vaccine different then the belief in the fact of the existence of a particular god?

          For fun, in terms of any legal analysis a court might conduct, assume that all of the underlying ingredients in say Pfizer have not been disclosed. In this regard, I would refer you to “(B) (4)” which is found throughout Pfizer’s disclosures and means redacted or not disclosed or proprietary in the list of ingredients, details regarding the manufacturing process, etc.. produced by Pfizer thus far. Good luck finding those disclosures in the first instance but if you do you will find the “(B) (4)” notations throughout. Religious Informed Consent, seriously :).

          1. ” if you truly believe that a fetus part or cell is in the actual vaccine, then will your religious exemption hold? ”
            If you truly believe that the earth is flat….
            No it should not hold as it the claim that “a fetus part or cell is in the actual vaccine” is a falsifiable statement subject to refutation by actual evidence

        2. Don – like I said, I have no knowledge on whether the vaccines were developed using fetal tissues of any kind. A few other commentators have indicated that only one of the three vaccines was developed using fetal tissue or fetal cell lines.

          The religious exemption test is based on whether it is a sincerely held belief. In the case of segments of the pro life movement, it clearly is a sincerely held belief. Based on that test, since the belief in this case ,. the second prong is the belief that all the vaccines are developed using fetal tissue will meet that test (even if that belief is incorrect).

          1. The sincerely held belief in a verifiable counterfactual should not hold. Period

    8. Where is consideration for the interests of patients who cannot be effectively vaccinated?

      In the strict scrutiny analysis. The government needs to show a compelling interest (which the court accepted) and that its rules are narrowly tailored to that interest.

    9. “existential crisis”

      Hyperbole much? The US death toll is still less than 1% of the US population and only about one third as deadly as the Spanish Flu epidemic. I think we existed post-1920.

    10. lathrop, we don’t surrender our rights because some knucklehead says, “Existential crisis!!!”. First, covid-19 isn’t an existential crisis. Second, you may not deny religious exemptions while having other exemptions.

      If you want to impinge on religious rights, it is not unreasonable to ask if there is a compelling interest and a less intrusive way to accomplish a public health goal.

      1. I guess we have to bring out the Ben Franklin quote again.

        1. Yeah, probably. But I don’t think lathrop is gonna get it, either way.

    11. Stephen,
      This pandemic is NOT an existential crisis, far from it.
      Having gotten the lede wrong, you proceed with more highly dubious quasi analysis especially in the final paragraph.

      1. I don’t think he claims that this pandemic is an existential crisis. I think he doesn’t believe in individualized consideration of different situations. He thinks that if some actual emergency that is an existential crisis comes along, we can’t worry about civil liberties; therefore, we can’t worry about them in any situation that someone calls an emergency, because it might set a bad precedent.

  3. Even the Pope says the vaccine is unobjectionable. We see what’s really going on here.

    1. Was he speaking ex cathedra or ex culo? His doctrinaire socialist background makes him rather unreliable as a pontiff.

      1. Michael P
        October.13.2021 at 6:20 am
        Flag Comment Mute User
        >Was he speaking ex cathedra or ex culo? His doctrinaire socialist background makes him rather unreliable as a pontiff.<

        The current pontiff is approaching aethist status. Maybe a little exaggeration, but certainly quite liberal views of catholic doctrine.

        1. Tom,
          The acceptability of the use of these vaccines is well within the mainstream of Roman Catholic theology as taught even in highly orthodox archdioceses.

          1. Don – I concur that vaccines are definitely in the mainstream with catholics. Only noting that the current pontif has veered to being very loose/lax with the prior stricting catholic theology.

    2. We see what’s really going on here.

      Yeah, your brain is set on “drooling moron”.

      No, the Pope doesn’t get to set the boundarioes for what constitutes freedom of religion.

      1. Before questioning anyone’s intellect, please consider whether you’re on the side of those gullible enough to (claim to) believe fairy tales are true. Those who throw stones at reasoning people while flattering the superstitious live in ass houses.

      2. Actually no one claimed that.

    3. Even the Pope says the vaccine is unobjectionable.

      Are the plaintiffs even Catholic?

    4. The Pope is also against abortion. You?

        1. Capt C says that since the Pope has approved the vaccines, that’s it, no one else can validly object.

          So, he must feel that way about every papal view.

          1. I think his point is — I know I’ve made a similar point — not that the Pope’s views are legally controlling (or religiously controlling on any non-Catholic), but that the Pope’s views illustrate how fringe the religious exemption arguments are.

            1. Many free exercise cases involved “fringe” religions. Jehovah’s Witnesses famously.

              Aborted fetal stem cells has been controversial for decades, recall George Bush back in 2001 limiting research.

              1. Yes, but that’s not what this is. The mRNA vaccines do not contain fetal cells. They weren’t even developed from cell lines derived from fetal cells. After they were developed, they may have been tested on cell lines derived from fetal cells.

                1. I don’t believe the fetal cell line objection is met by “we only used them to test.” If used in any way, that could create a legitimate moral objection for people who believe abortion is sin. Especially if the testing was necessary for FDA approval and release.

                  1. Shawn,
                    Nothing that anyone does now will bring back the fetuses that we aborted 50 years ago.
                    Your “especially” does not have any moral force. If one objects to the act in itself, the why becomes irrelevant.

    5. The Pope has absolutely zero authority over me or my religious beliefs. He does not speak for me nor millions of other Christians. I don’t see how he can hold himself out as an “authority” over Christians. If Catholics want to listen to him as their leader, then they can do so, but he is not the authority over all religions just because he is the Pope. The left lumps all religions into one group because they know no different.

      1. Your straw pope sounds very different from the flesh and blood dude in golden slippers we see on TV.

        “The left lumps all religions into one group because they know no different.”

        Love the irony.

      2. Cindy,
        Please tell us your moral authority for you objection over using the 100th generation of some cells.
        What is the chapter and verse?

        1. You do realize that every day you enjoy the benefits derived from one person having killed another in anger.
          How is this situation over a cell line 100 generation old any different?
          What is the moral authority underpinning that difference?
          Or is your claim that you are the sufficient moral authority unto yourself?

          I ask these as serious questions not as a personal insult.

  4. There will be civil suits! And it will be glorious

    1. Suits was very uncivil. And it was glorious.

  5. Maybe NY should just make a law giving a private right of action to sue anyone with a religious exemption for vaccine mandates who is working in a medical facility.

    1. Creating a cause of action over an imagined risk is so very 21st Century Leftist.

  6. Who didnt see that coming.

    The Biden admin and New York are setting up every private employer to be sued over this as well. Then they will pretend it wasn’t their idea.

    In any case COVID cases are way down, the delta wave is ending. I am sure you’ve been looking at the CDC #s or heard about it in the media, right?

    1. dwb68
      October.13.2021 at 7:04 am
      Flag Comment Mute User
      <In any case COVID cases are way down, the delta wave is ending. I am sure you’ve been looking at the CDC #s or heard about it in the media, right?<

      good point – Though that wave is typical of all pandemics –
      Based on the well known history of pandemics, the northern states should have a large wave starting december/january. Florida and southern texas are probably done with their last big wave, though they should have smaller wave in the Jan/feb time frame.

    2. ” the delta wave is ending”
      More accurately
      The present delta wave seems to be ending.

      1. Yeah, it would sure be nice if people could do some things to protect themselves and society so that we don’t need to keep having waves.

        1. Ah, you think that 80% vaccinations will end waves.
          It’s a nice wish but there is no compelling evidence to support that wish.
          Denmark with 75% fully vaccinated has seen an increase over the past three weeks. I’d be wary of making predictions.

          1. Cases without deaths and hospitalizations aren’t that worrisome. Denmark already had two decent-sized waves of cases during the summer, but in both cases deaths barely budged (1-3 per day versus ~60 per day last winter.) Even just looking at cases, the magnitude of recent waves certainly looks much more muted than what we just seeing in the US as well (~25% of last winter’s peak versus 60+% in the US).

            1. JB,
              Actually, the case fatality rate in Denmark has tripled from the point when 68% were vaccinated to its value when !76% were fully vaccinated. (My data cutoff was October 4.)
              The number of daily new cases was roughly constant over the period when the vaccination percentage ranged from 45% to 70%. As you noted the magnitude of the “waves” was much more muted than those in the US.

  7. Decisions like this one will incline rejection of most special privilege for religion in America, perhaps not so far from today, as our society continues to progress. Reconsideration of the sketchy legal authority (sketchy reasoning, not sketchy legality or applicability) underlying this decision seems inevitable as the role of religion declines in America. Younger and educated Americans, especially, seem unlikely to support nearly limitless privilege based solely on claimed superstition.

    I do not expect those for whom superstition trumps reason to understand or share that expectation. Society will, however, expect their compliance.

  8. Whether this is or isn’t good constitutional doctrine, it seems very inconsistent with Supreme Court precedent.

    The Tittle VII argument is particularly weak. Employers are able to deny religious exemtions under Title VII if they suffer more than a de minimus inconvenience. Several justices have suggested this approach is wrong and Title VII should be interpreted to have more teeth. But it is not the role of a lower court judge to ignore the majority and file a minority opinion.

    Similarly, Justice Barrett’s recent concurrence clarifies that Smith remains good law whether people like it or not.

    1. Let the superstitious, bitter clingers have their fun a bit longer.

      The reality-based world will crush their tawdry, obsolete, bigoted preferences soon enough.

    2. But Smith only applies to rules of general applicability.

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