News Release

Supreme Court Inaction on New York Vaccine Mandate “Way Too Early to Celebrate”


The U.S. Supreme Court has left in place New York’s Covid-19 vaccine mandate for healthcare workers, which had received a challenge over its lack of a religious exemption. In December, the high court had rejected an emergency request from medical workers demanding a religious exemption in New York. At the time, while the majority did not cite a reason for rejecting the applications, three justices objected to the rejection. They reiterated their objections when the Court acted at the end of June.

    Jost is an Emeritus Professor at the Washington and Lee University School of Law.

LAWRENCE GOSTIN;, @LawrenceGostin
    Gostin is a professor at Georgetown University, the founding O’Neill Chair in Global Health law, the faculty director of the O’Neill Institute for National and Global Health Law, and the director of the World Health Organization’s Collaborating Center on National and Global Health Law. 

Jost told the Institute for Public Accuracy today: “It seems that only the three most conservative members of the Court were willing to go further at this point in limiting the ability of the states to protect the public health or expanding the restrictions placed on the state when anyone claims religious discrimination. This issue will no doubt come up again and given the inclinations that the court showed this term the result may be different.”

Gostin echoed Jost’s caution about future decisions, telling the Institute for Public Accuracy: “The Supreme Court’s decision not to hear the challenge to New York State’s vaccine mandate for health care workers means that, at least for now, cities and states may require their workers, and especially those who work in health care, to be vaccinated. But it is way too early to celebrate. There is a core group of hyper-conservative justices on the Supreme Court who are flexing their muscles. The next shoe to drop may well be state vaccine mandates. 

    “I don’t foresee the Court banning cities and states from requiring vaccinations, including vaccine mandates as a condition of school entry,” Gostin said, explaining that cities and states have, after all, “historical police powers that allow them to regulate for the public’s health and safety.” However, Gostin is greatly concerned  “that the Court is poised to require cities and states to offer a broad religious exemption for vaccine mandates. New York does not have a religious opt out, and in the past the courts have not required it. That all may change in the coming months and years. Having narrow or no religious exemptions is crucial because such exemptions open a yawning gap in vaccination coverage, as we have seen with measles outbreaks.”

When asked why the Supreme Court passed up the opportunity to rule on religious freedom in this case, Gostin said: “I think the Court is waiting for another time to do that in the right case and on the full docket. But make no mistake about it, religious freedom may one day trump public health.”

Erica N. White, a research scholar at the Center for Public Health Law and Policy at Arizona State University, added: Challenges to state vaccine mandates generally are religious challenges–arguing that policies are discriminatory against would-be religious objectors. The Court has a history of allowing these challenges to play out in lower courts and has explicitly allowed mandates to remain in place.

    “The Court did not comment on why they declined cert. However, it is worth noting that the Court declined cert in Dr. A v. Hochul June 30 for the second time (the first was on December 13, 2021). The Court has also declined to grant injunctions halting New York’s vaccine mandate from being enforced while litigation plays out.”

White noted that she expects “more of the same” in the coming months: “religious-based challenges playing out in lower courts.”