Skip to main content

‘We Fail Ourselves’: Justice Gorsuch Dissent Skewers SCOTUS for Rejecting N.Y. Healthcare Workers Who Say Cell Lines for COVID-19 Vaccines Are ‘Abortion-Derived’


Justice Neil Gorsuch

Supreme Court Justice Neil Gorsuch in a lengthy dissent from an order on Monday favorably compared minority Catholics who currently refuse to take the COVID-19 vaccine (because they believe “abortion-derived fetal cell lines” are used in “production or testing”) to Jehovah’s Witnesses who, in decades past, declined to pledge their allegiance to the U.S. flag.

In the case stylized as Dr. A v. Kathy Hochul, a majority of the court upheld New York State’s vaccine mandate for healthcare workers–even though the regime explicitly lacks a religious exemption.

Three members of the nation’s high court would have enjoined those rules. Justice Samuel Alito joined Gorsuch in dissent. Justice Clarence Thomas silently dissented on presumably separate grounds.

Originally, issued by then-Gov. Andrew Cuomo (D) with a religious exemption in mid-late August, the vaccine mandate was revised in the final days of August without such an exemption.

“The regulatory impact statement accompanying this decision did not discuss the feasibility of a religious exemption or the reasons for removing it,” the dissent explains. “But the new Governor did.”

Empire State Gov. Kathy Hochul (D) spoke plainly about how her administration had “intentionally” sought to make sure no healthcare workers would be able to claim such an exemption from the mandate.

Gorsuch catalogues some of those on-the-record statements:

Asked why, the Governor answered that there is no “sanctioned religious exemption from any organized religion” and that organized religions are “encouraging the opposite.” Apparently contemplating Catholics who object to receiving a vaccine, Governor Hochul added that “everybody from the Pope on down is encouraging people to get vaccinated.

Speaking to a different audience, the Governor elaborated: “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 day before the mandate went into effect, Governor Hochul again expressed her view that religious objections to COVID–19 vaccines are theologically flawed: “All of you, yes, I know you’re vaccinated, you’re the smart ones, but you know there’s people out there who aren’t listening to God and what God wants. You know who they are.”

Adding teeth to the measure, Hochul then directed the state’s department of labor to deny unemployment benefits to any healthcare worker who is fired for refusing the COVID-19 vaccination.

The plaintiffs, some 20 anti-abortion Catholic healthcare workers, sued and won an injunction at the district court level.

The lawsuit claimed that plaintiffs were entitled to a religious exemption because the vaccines “employ aborted fetus cell lines in their testing, development, or production.” According to pleadings, all three vaccines currently in use in the U.S. — those made by Moderna, Pfizer, and Johnson & Johnson — “employ fetal cell lines derived from procured abortion in testing.”

COVID-19 vaccines themselves do not contain aborted fetal cells. Some opponents of abortion have objected to the fact that some coronavirus vaccines have used cells originally isolated from fetal tissue in various stages of vaccine development and manufacturing, according to a fact sheet on the issue by the North Dakota Department of Health and Los Angeles County Department of Public Health.

“Historical fetal cell lines were derived in the 1960’s and 1970’s from two elective abortions and have been used to create vaccines for diseases such as hepatitis A, rubella, and rabies,” the fact sheet says. Such vaccines have been the subject of mandates, without the same controversy, for far longer.

A second lawsuit filed in district court failed to gain traction.

Pope Francis has called getting vaccinated an “act of love.”

Gorsuch explains that their opposition to the mandate stems from how “each of the currently available vaccines has depended upon abortion-derived fetal cell lines in its production or testing.” Referring to the lack of an exemption as a “religious gerrymander,” the district judge found that change a violation of the First Amendment.

The U.S. Court of Appeals for the Second Circuit combined both of those lawsuits and tossed the injunction. The plaintiffs appealed to the Supreme Court, asking for the injunction to be reinstated. In an unsigned order, the court declined to reinstate the injunction–validating, at least for now, New York’s atypically stringent vaccine mandate.

“It seems New York is one of just three States to have a scheme like this,” Gorsuch says.

To hear the arch-textualist tell it, citing language from Masterpiece Cakeshop, New York’s mandate runs afoul of the Free Exercise Clause because there is a “slight suspicion” that Hochul’s decision stems “from animosity to religion or distrust of its practices.”

In fact, Gorsuch says, there’s a bit “more than a ‘slight suspicion’ that New York acted out of ‘animosity [toward] or distrust of ‘ unorthodox religious beliefs and practices’ when erasing the exemption.

“This record practically exudes suspicion of those who hold unpopular religious beliefs,” the dissent blisteringly argues. “That alone is sufficient to render the mandate unconstitutional.”

“New York’s regulation fares no better if the question is the law’s neutrality and general applicability,” reciting frameworks for interpreting laws alleged to be in violation of religious freedom jurisprudence. “Even if one were to read the State’s actions as something other than signs of animus, they leave little doubt that the revised mandate was specifically directed at the applicants’ unorthodox religious beliefs and practices.”

The problem, the dissent says, is that the Roberts Court recently ruled that a law cannot be said to be generally applicable if it “prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.”

Even assuming any of the standards of review could eventually be met, Gorsuch continues, the mandate wouldn’t pass a final strict scrutiny analysis because of “how unique it is.”

“It seems 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,” the dissent says. “To the contrary, as we have seen, what explanations the Governor has chosen to supply undermine rather than advance the State’s case.”

Gorsuch, at length, analogizes the plaintiffs to those who secured Americans the right to be free from government-compelled speech:

More than 80 years ago, in the shadow of a looming second world war, local governments across the country rushed to encourage displays of national unity. A public school in Minersville, Pennsylvania, did its part by requiring all students to stand daily and salute the American flag. But Lillian and William Gobitas would not oblige. As Jehovah’s Witnesses, they believed they could not pledge fealty to anything or anyone except God. When the children refused to salute, the school expelled them.

When the Gobitas family sought this Court’s intervention, it demurred. The Court ruled that the Constitution does not “compel exemption from doing what society thinks necessary for the promotion of some great common end.”

Eventually, the Court changed course and overruled [that decision]. In West Virginia State Bd. of Ed. v. Barnette, the Court finally acknowledged what had been true all along—that our Constitution is intended to prevail over the passions of the moment, and that the unalienable rights recorded in its text are not matters to “be submitted to vote; they depend on the outcome of no elections.”

The dissent goes on to cast his colleagues’ decision as a choice unbecoming of the court and its role in U.S. political life.

“Today, we do not just fail the applicants,” Gorsuch opines. “We fail ourselves.”

[image via Andrew Harnik/Pool/Getty Images]

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime: