A. v. Hochul

• Decision Date: 12 October 2021
• Docket Number: 1:21-CV-1009
• Citation: 567 F.Supp.3d 362
• Parties: Dr. A., Nurse A., Dr. C., Nurse D., Dr. F., Dr. G., Therapist I., Dr. J., Nurse J., Dr. M., Nurse N., Dr. O., Dr. P., Technologist P., Dr. S., Nurse S., and Physician Liaison X., Plaintiffs, v. Kathy HOCHUL, Governor of the State of New York, in her official capacity, Dr. Howard A. Zucker, Commissioner of the New York State Department of Health, in his official capacity, and Letitia James, Attorney General of the State of New York, in her official capacity, Defendants.
• Court: U.S. District Court — Northern District of New York

567 F.Supp.3d 362

Dr. A., Nurse A., Dr. C., Nurse D., Dr. F., Dr. G., Therapist I., Dr. J., Nurse J., Dr. M., Nurse N., Dr. O., Dr. P., Technologist P., Dr. S., Nurse S., and Physician Liaison X., Plaintiffs,

v.Kathy HOCHUL, Governor of the State of New York, in her official capacity, Dr. Howard A. Zucker, Commissioner of the New York State Department of Health, in his official capacity, and Letitia James, Attorney General of the State of New York, in her official capacity, Defendants.

1:21-CV-1009

United States District Court, N.D. New York.

Signed October 12, 2021

OF COUNSEL: CHRISTOPHER FERRARA, ESQ., THOMAS MORE SOCIETY, Attorneys for Plaintiffs, 148-29 Cross Island Parkway, Whitestone, NY 11357.

OF COUNSEL: MICHAEL MCHALE, ESQ., THOMAS MORE SOCIETY, Attorneys for Plaintiffs, 10506 Burt Circle, Suite 110, Omaha, NE 68114.

HON. LETITIA JAMES, New York State Attorney General, OF COUNSEL: KASEY K. HILDONEN, ESQ., RYAN W. HICKEY, ESQ., Ass't Attorneys General, Attorneys for Defendants, The Capitol, Albany, NY 12224.

MEMORANDUM-DECISION and ORDER

DAVID N. HURD, United States District Judge

I. INTRODUCTION

On August 26, 2021, the New York State Department of Health adopted an emergency regulation that required most healthcare workers to be vaccinated against COVID-19 within the next thirty days. N.Y. COMP. CODES R. & REGS . tit. 10, § 2.61(c) (2021). As relevant here, § 2.61 eliminated a religious exemption included in the first iteration of this mandate.

On September 13, 2021, seventeen healthcare workers employed in New York State ("plaintiffs"), all of whom object to the existing COVID-19 vaccines on religious grounds, filed this official-capacity 42 U.S.C. § 1983 action against New York State Governor Kathy Hochul ("Hochul"), New York State Health Commissioner Howard A. Zucker ("Zucker"), and New York State Attorney General Letitia James ("James") (collectively "defendants").

Plaintiffs’ three-count verified complaint alleges that § 2.61 violates their constitutional rights because it effectively forbids employers from considering workplace religious accommodations under processes guaranteed by federal law. Plaintiffs sought to enjoin defendants from, inter alia , enforcing § 2.61 "to the extent it categorically requires health care employers to deny or revoke religious exemptions from COVID-19 vaccination

mandates."

On September 14, 2021, the Court issued a temporary restraining order ("TRO") to that effect, Dr. A. v. Hochul , 2021 WL 4189533 (N.D.N.Y.), and ordered briefing on whether the TRO should be converted to a preliminary injunction pending a resolution of the merits of plaintiffs’ constitutional claims seeking a permanent injunction. The TRO was extended for good cause to this date, October 12, 2021. Dkt. No. 15. The motion has been fully briefed and will be decided on the basis of the submissions without oral argument.

II. BACKGROUND ¹

On June 25, 2021, then-Governor Andrew Cuomo rescinded the COVID-19 public health emergency declaration that had been in effect across New York State for the previous eighteen months. Compl. ¶ 16; N.Y. Exec. Order 210 (June 24, 2021). As defendants explain, Cuomo's decision was based on "declining hospitalization and [rates of COVID-19] positivity statewide, as well as success in vaccination

rates." Rausch-Phung Decl., Dkt. No. 16 ¶ 19.

However, the end of the emergency declaration did not bring an end to defendants’ exercise of their emergency powers.² Compl. ¶ 17. On August 18, 2021, Health Commissioner Zucker issued an "Order for Summary Action" that required general hospitals and nursing homes to "continuously require all covered personnel to be fully vaccinated against COVID-19." Ex. B to Compl. at 95–101 (the "August 18 Order"). The August 18 Order included a medical exemption as well as an explicit religious exemption:

Religious exemption. Covered entities shall grant a religious exemption for COVID-19 vaccination

for covered personnel if they hold a genuine and sincere religious belief contrary to the practice of immunization, subject to a reasonable accommodation by the employer.

Id. ; see also Compl. ¶ 20.

Just five days later, on August 23, 2021, New York State's Public Health & Health Planning Council (the "Health Council"), acting on a summary basis pursuant to its statutory authority under the Public Health Law, published a proposed emergency regulation that would quickly be adopted as § 2.61.³ Id. ¶¶ 4–5. This proposal expanded the vaccination

requirement set forth in the August 18 Order to reach personnel in other healthcare settings. Rausch-Phung Decl. ¶ 5. This proposal also eliminated the religious exemption found in Zucker's August 18 Order. See

id.

On August 26, 2021, three days after its publication, the Health Council adopted § 2.61, which superseded the August 18 Order and became effective immediately. Rausch-Phung Decl. ¶ 5. According to defendants, the Health Council's emergency action was a necessary measure to control the continued spread of Delta and other SARS-CoV-2 variants. Id. ¶¶ 8–21.

The seventeen plaintiffs are "practicing doctors, M.D.s fulfilling their residency requirement, nurses, a nuclear medicine technologist, a cognitive rehabilitation therapist and a physician's liaison." Compl. ¶ 36; see also id. ¶¶ 38, 47, 56, 66, 74, 84, 91, 98, 108, 117, 128, 140, 149, 161, 171, 181, 188. They are employed by hospitals, nursing homes, and other New York State entities that are subject to § 2.61. See id. ¶ 10.

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." Compl. ¶ 35; see also id. ¶ 37 (detailing beliefs held in common by plaintiffs). 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." Id. ¶¶ 9, 36; 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 complaint alleges that each plaintiff has been denied a religious exemption, or had an existing religious exemption revoked, on the basis of their employers’ application of § 2.61. Compl. ¶¶ 39–42, 49–51, 58–60, 67–68, 77–78, 85, 92–94, 102, 111–12, 118–23, 129–31, 142–43, 154–56, 162–63, 173–74, 183–85, 189. The complaint further alleges that each plaintiff has been threatened with professional discipline, loss of licensure, admitting privileges, reputational harm, and/or the imminent termination of their employment as a result of their refusal to comply with § 2.61. Id. ¶¶ 43–46, 52–55, 61–65, 69–73, 79–83, 86–90, 95–97, 103–07, 113–16, 124–27, 135–39, 144–48, 157–60, 164–65, 168–70, 176–80, 186–87, 190–91.

III. LEGAL STANDARD

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Nat'l Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). To win relief, the movant must ordinarily demonstrate: (1) a likelihood of irreparable harm; (2) either a likelihood of success on the merits or sufficiently serious questions as to the merits plus a balance of hardships that tips decidedly in their favor; (3) that the balance of hardships tips in their favor regardless of the likelihood of success; and (4) that an injunction is in the public interest. Page v. Cuomo , 478 F. Supp. 3d 355, 362–63 (N.D.N.Y. 2020).

However, in cases like this one, where the movants seek to enjoin government action taken in the public interest pursuant to a statutory or regulatory scheme, the less rigorous "serious questions" component of this legal standard is unavailable. Otoe-Missouria Tribe of Indians v. N.Y. State Dep't of Fin. Servs. , 769 F.3d 105, 110 (2d Cir. 2014). As the Second Circuit has explained, "[t]his exception reflects the idea that governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly." Id. (citation omitted).

Defendants’ opposition memorandum invokes a second exception to the general rules governing preliminary injunctive relief. Defs.’ Opp'n, Dkt. No. 16-50 at 4, 11.⁴ As defendants correctly note, a heightened standard can also apply when the requested injunction (1) is "mandatory"; i.e. , it will alter the status quo by compelling some positive action; or (2) "will provide the movant with substantially all of the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits." Page , 478 F. Supp. 3d at 363. When either condition is met, the movant must make a "clear" or "substantial" showing of a likelihood of success on the merits, and must also make a "strong showing" of irreparable harm. Id.

Upon review, however, it is not clear why this heightened requirement should apply to plaintiffs’ request for preliminary injunctive relief. "An injunction that enjoins a defendant from enforcing a regulation clearly prohibits, rather than compels, government action by enjoining the future enforcement." Hund v. Cuomo , 501 F. Supp. 3d 185, 207 (W.D.N.Y. 2020) (cleaned up). Nor have defendants articulated how this heightened standard has been triggered. See generally Defs.’ Opp'n. Accordingly, the ordinary rules applicable to "prohibitory" injunctions will be applied. See, e.g. , Hund , 501 F. Supp. 3d at 207 (rejecting application of heightened standard where plaintiff sought to enjoin application of COVID-19 Executive Order).

IV. DISCUSSION ⁵

Since its ratification in 1791, the First Amendment has protected religious practitioners from government action that "discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious...