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Liberty Counsel is preparing for oral argument on November 15 at the Second Circuit Court of Appeals to seek justice for five New York state health care workers who were fired for refusing to take the shot due to their deeply held religious convictions. According to their religious beliefs, the five health care workers could not accept any shot associated with aborted fetal cell lines. The state’s mandate required employers to force health care workers to get the COVID shot and denied religious exemptions while approving nonreligious medical exemptions. The health care workers are seeking the Appeals Court to reverse the lower court’s dismissal and allow the case to proceed to a discovery phase and trial.

Incidentally, over the last 13 months, the New York Supreme Court (a trial court) has struck down several COVID shot mandates for state health care workers and New York City (NYC) employees declaring the mandates “arbitrary and capricious.” As a result, both the State of New York and NYC officially repealed their mandates earlier this year. One judge went a step further and declared the “blanket” denial of religious exemptions was also “arbitrary, capricious, and unreasonable” and has ordered nearly 9,000 NYC workers reinstated who were unlawfully terminated for refusing to abide by the illegal mandate.

Despite this precedent, the State of New York claims Liberty Counsel’s lawsuit in the Appeal Court is now “moot” since its mandate for state health care workers has been struck down and repealed.

In a brief to the Court, Liberty Counsel argues the case is not moot since the “constitutional injury” suffered by the health care workers cannot be ignored, and involuntarily ceasing questionable behavior is insufficient grounds for the state to evade judicial review.

The defendants in this case include Governor Kathy Hochul, Department of Health Commissioner Dr. Howard A. Zucker, Trinity Health, Inc., New York Presbyterian Healthcare System, Inc., and Westchester Medical Center Advanced Physician Services, P.C. The case was originally dismissed at the district court level and has been appealed to the Second Circuit. The State of New York seeks to dismiss the lawsuit and proposes that the Court “send the plaintiffs home” which would allow the state to avoid accountability for violating federal employment law known as Title VII, which requires employers to reasonably accommodate an employee’s practice of religion.

Liberty Counsel stated, “[W]hen the government ceases a challenged policy without renouncing it, the voluntary cessation is less likely to moot the case,” wrote Liberty Counsel. “[A] defendant’s failure to acknowledge wrongdoing similarly suggests that cessation is motivated by a desire to avoid liability, and furthermore ensures that a live dispute between the parties remains.”

In January 2023, New York Supreme Court Judge Gerard J. Neri ruled that the state overstepped its authority in overseeing voluntary vaccine programs by adopting a mandatory program with its mandate for health care workers. According to Judge Neri, the overreach renders the mandate “null, void, and of no effect.”

In addition, Judge Neri pointed out that the state’s mandate was centered around preventing transmission of COVID-19. Available scientific studies at the time the mandate was enacted show the COVID shots did not prevent transmission of the virus. In his ruling, Judge Neri acknowledged the shots do not stop the spread of the virus and that the state of New York failed to properly define key terms in the mandate’s language.

“In true Orwellian fashion, the Respondents acknowledge then-current COVID-19 shots do not prevent transmission,” wrote Judge Neri. “The Mandate defines, in the loosest meaning of the word, ‘fully vaccinated’ as ‘determined by the Department in accordance with applicable federal guidelines and recommendations’…A term which is defined at the whim of an entity, subject to change without a moment’s notice contains all the hallmarks of ‘absurdity’ and is no definition at all. In the alternative, the Court finds the Mandate is arbitrary and capricious.”

A second New York Supreme Court judge came to a similar conclusion in a case against NYC’s mandate for city employees. In October 2022, Judge Ralph J. Porzio determinedNYC’s COVID shot mandate was also “arbitrary and capricious” because the shot does not prevent an individual from contracting or transmitting COVID-19.” Judge Porzio ordered NYC to reinstate with back pay 1,700 employees who were fired for refusing the COVID shot. Then last September, Judge Porzio also ordered 10 NYC school teachers reinstated after determining the city acted in absence of a “rational reason” when it denied their religious accommodations with a lack of an explanation as to why. The Court ordered the city to give the teachers their jobs back along with backpay, seniority, benefits, and attorney’s fees.

Liberty Counsel Founder and Chairman Mat Staver said, “These health care workers stood true to their convictions and refused an unlawful mandate of an experimental drug. The New York Supreme Court has rightly judged these mandates and religious exemption denials are without legal merit. The State of New York has disregarded federal law and forced people to choose between their religious beliefs and their livelihoods. This is a clear injustice that needs recompense, and the Second Circuit Court Appeals must hold New York accountable.”

Author: Liberty Counsel


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