Sister Dede Byrne Sues Washington Over COVID Vaccine Mandate for Health Care Workers
Religious freedom is protected under the law regardless of the popularity of the belief that is infringed.
It looks like we are entering a new phase in the battle against the coronavirus. Mask mandates in schools are being lifted. Cases of hospitalizations are dropping, as are the number of deaths associated with COVID.
Yet something sinister lingers.
Zealous government officials have used their public-health authority to impose vaccine mandates that gravely undermined religious freedom. Take, for example, news reported on EWTN's World Over that Sister Dede Byrne, an Army surgeon who served in Afghanistan and dedicates her time now to caring for the indigent and undocumented in our nation’s capital, was denied her request for a religious exemption from the District of Columbia’s vaccine mandate for health care workers.
I’m afraid we will be feeling the long-term effects on religious liberty from government overreach for years to come — unless the Supreme Court agrees to review a case involving health care workers in New York.
Some background: A regulation issued last year by the New York State Department of Health requires all health care workers in the state to be vaccinated against COVID-19. The regulation allows for medical but not religious exemptions. What’s more, health care workers in New York who lose their jobs because of their refusal to be vaccinated — regardless of their reasons — are ineligible for unemployment insurance benefits.
New York’s blanket rule forcing doctors and nurses to be vaccinated regardless of religious and moral objections isn’t a mere oversight. Gov. Kathy Hochul revised the mandate before it went into effect — and in a disturbing way. Religious exemptions would no longer be available, she reasoned, because there was no “sanctioned religious exemption from any organized religion.”
“Everybody from the Pope on down is encouraging people to get vaccinated,” she said. Visiting a Baptist church in Harlem, Hochul asked: “How can you believe that God would give a vaccine that would cause you harm? That is not truth. Those are just lies out there on social media.” The governor went even further on the day before the mandate took effect. She told another congregation: “All of you, yes, I know you’re vaccinated, you’re the smart ones, but you know there are people out there who aren’t listening to God and what God wants. You know who they are.”
You know who they are. Hochul’s forays into amateur theology are more than embarrassing; they are alarming. And I say that as a Catholic who, following the ruling of the Congregation for the Doctrine of the Faith, has concluded that there are no grave moral impediments to receiving the COVID vaccine — a view shared by most American Catholics. But our assessment that receiving the vaccine is not morally objectionable is irrelevant when it comes to standing with those who, in all sincerity, come to a different conclusion. Religious freedom is protected under the law regardless of the popularity of the belief that is infringed.
Last year, a group of 16 New York doctors and nurses with religious objections to the vaccine filed suit, claiming that the mandate violated their First Amendment rights. All have sincere religious objections to the COVID vaccines because they originate from "abortion-derived fetal cell lines in testing, development, or production.” Although a district court ordered preliminary relief, its order was reversed by a three-judge panel of the 2nd Circuit Court of Appeals. While accepting that the mandate subjected the plaintiffs to “meaningful burdens on their religious practice,” the court of appeals concluded that such burdens were “not of a constitutional dimension.”
The health care workers sought and were denied emergency relief to the Supreme Court last December. Three justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — would have granted relief. Gorsuch wrote that the record “exudes suspicion of those who hold unpopular religious beliefs” and noted that “nearly every other state has found that it can satisfy its COVID-19 public-health goals without coercing religious objectors to accept a vaccine.”
Shortly afterwards, on Christmas Eve, Gov. Hochul allowed fully vaccinated health care workers who were infected with COVID to return to work after five days even if they were still experiencing symptoms. Every religious objector who joined the lawsuit except one, by contrast, has been fired, forced to resign, lost admitting privileges, or felt coerced into receiving the vaccination.
Becket law group and the Thomas More Society recently filed a petition for review of the case with the Supreme Court. The 2nd Circuit, they assert, “[discounted] the intentional removal of a religious exemption (but not others), the outlawing of religious accommodations (but not others), and the governor’s direct attacks on religious objectors from the pulpit.” The panel’s opinion was “the result of deep and harmful confusion in the lower courts about how to apply the Free Exercise Clause.”
Last month, the Supreme Court refused a similar request by health care workers in Maine. Like New York, their state has a vaccine mandate for its health care workers without exemptions for religious objectors. The 1st Circuit Court of Appeals previously ruled that the absence of a religious exemption in the Maine mandate did not violate the Constitution.
Fortunately, not all courts of appeal are so willing to ignore the plea of religious objectors. Naval Special Warfare service members with religious objections to the vaccine have so far been successful in defending their conscience rights. The Navy has a vaccine mandate that provides an exemption for religious objectors. Yet, although more than 4,000 active-duty and Navy Reserve personnel have submitted requests for religious accommodations, the Navy has denied all of them. At the same time, medical exemptions have been granted, including some for members assigned to Naval Special Warfare. A federal district court barred the Navy from imposing any “adverse action” against the service members who object to the vaccine on religious grounds. The court wrote that the Navy’s religious-accommodation process was “an empty formality” and that “denial of each request is predetermined.”
A three-judge panel of the 5th Circuit Court of Appeals recently upheld the order and refused to temporarily suspend the compliance order pending appeal. “By pitting their consciences against their livelihoods,” the panel explained, “the vaccine requirements would crush Plaintiffs’ free exercise of religion.” It then concluded that Navy’s “institutional interests” were not sufficiently compelling to deny accommodations to the plaintiffs. The court added an important reminder: “[Orders] protecting First Amendment principles are always in the public interest.” The panel’s opinion was issued per curiam, meaning without listing a specific judge as its author. One panel member surely had something to do with its drafting. Before being appointed to the bench, Louisiana-based Judge Kyle Duncan successfully argued before the Supreme Court on behalf of Hobby Lobby, the family-owned craft-store giant, in its fight against the Affordable Care Act’s contraceptive mandate.
The Biden administration has filed an emergency appeal with the Supreme Court, asking it to partially stay the lower-court order to the extent that it “usurps the Navy authority to decide which service members should be deployed” on which missions.
You could be forgiven for reading all this and thinking: “What a mess.” And you would be right. It is a mess. When it comes to safeguarding important constitutional rights such as religious liberty, we should expect a uniform understanding by courts across the country. Unfortunately, to put it mildly, this hasn’t been the case when it comes to COVID-related restrictions. Careful review by the Supreme Court can fix this and help us move forward, in this new phase of the public-health challenge, with our religious freedom once again intact.
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