"This is not hostility to religion," Steven Wu of the New York Attorney General's office argued before a three-judge panel of the 2nd US Circuit Court of Appeals. "This is a neutral, generally applicable law that is sustained under the Free Exercise clause even if it does impose some burdens."
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17 healthcare workers who are mainly Catholic said they could not consent to COVID-19 vaccines "tested, developed or produced with fetal cell lines derived from procured abortions" but the judges noted the rubella vaccine, also created from fetal cell lines, has faced no similar objections.
"Am I right in understanding the state has required vaccination of healthcare workers for rubella and for other illnesses in the past and has not provided a religious exemption?" asked Judge Susan Carney.
"That's correct," said Wu.
When Carney mentioned how the rubella vaccine mandate from decades ago has not faced a religious-based objection, Judge John Walker drew a laugh from the courtroom when he interjected: "That was a different day and age," Walker said. "This is a politicized issue and people are all excited about it in ways they weren't then."
An attorney for the health workers, Christopher Ferrara, argued Title VII of the Civil Rights Act, which prohibits employment discrimination based on religion, compelled the state to offer a reasonable religious accommodation so the nurses and doctors can continue doing their jobs. The judges seemed skeptical.
"What do you see in Title VII that suggests that Congress intended Title VII to preempt the state's exercise of its power to protect the health and safety of the people of its state?" Judge Carney asked.
"Maybe there is no reasonable accommodation because everyone that's discussed poses an undue hardship for the employer," Judge Walker said. "If you're going to be a martyr that means gee I can't take this medicine and therefore I can no longer be a nurse in a New York hospital. That's what it means, doesn't it? It isn't oh I can't take this medicine and therefore I'm free to go and spread the virus to patients."
Cameron Atkinson, who represents a second group of health workers, said nurses and doctors should not be shut out of their careers because of their religious beliefs.
"COVID-19 is not going to walk up to someone on the street corner, tap them on the shoulder and say why aren't you vaccinated," Atkinson said.
"Religious people often can't do certain things because of their religion. Somebody from Agudath, Israel, the synagogue, cannot become a lifeguard at Jones Beach because he can't work on Saturday. That's just the way it is," Judge Walker said.
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The legal challenge comes on the same day as FDNY firefighters are expected announce a major protest and march over New York City's mandate.
That demonstration will be the latest in a series since the city announced its vaccine requirement for all police officers, firefighters and city workers.
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Earlier this week, about 20,000 firefighters, cops and municipal workers marched over the Brooklyn Bridge to protest the mandate, which goes into effect Friday.
Amid these mandate controversies, an FDA advisory panel Tuesday endorsed the use of Pfizer's vaccine for children ages 5-11.
A final decision from the FDA and CDC could come as early as next week.
Trials have indicated the shots are nearly 91% effective in children. The children's dose is a third of the dose prescribed for adults.
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