On December 13, 2021, the U.S. Supreme Court let stand a New York State COVID-19 injection mandate for health care workers.  The question is, what are the takeaways from this case?  (FYI, I'm not an attorney, but rather a scientist quite involved with the COVID-19 matter.)

To begin with, we need to understand NYS's justifications for this mandate.  Basically, they claim that: 1) they are mandating something lawful [a COVID-19 injection], and 2) such a mandate is for the public good.

Unfortunately, the complaint does not materially dispute either of NYS's two main arguments, but instead asserts that some NYS citizens have a right to opt out of the mandate based on religious beliefs.  In other words, the complaint says a blanket injection mandate violates the civil rights of some health care workers.

The primary justifications for the civil rights claim are the First Amendment of the U.S. Constitution, plus Title VII of the Civil Rights Act of 1964.  (See this discussion as to how the latter may apply to COVID-19 mandates.)

The Supreme Court's determination (a split decision) was that the plaintiffs' case was denied (no explanation was given).  To wade through all the legal documents, go here.  Note that Justice Gorsuch wrote a strong dissenting opinion.

What does all this mean for health care workers (and others) who are facing such mandates, in NYS and elsewhere?

As a scientist, in my opinion, both of the State's initial premises are faulty.  However, the complaint not only does not question either, but actually endorses the second!

Page 4 of the complaint says: "Just as with COVID worship restrictions, vaccine mandates raise difficult questions about balancing indubitably strong public health interests on one side, and core constitutional rights on the other" (emphasis added).

However, there are no scientifically proven net public health interests for a COVID-19 injection mandate, so such a concession is not only inaccurate, but a likely fatal flaw to the legal arguments being made for the plaintiffs.

Further, the complaint (page 6) accepts, without objection, the legitimacy of NYS's stated objective of their injection mandate: "reduc[ing] the spread of the Delta variant."

However, there is no scientific proof that a COVID-19 injection mandate actually "reduces the spread of the Delta variant" in any statistically meaningfully way.

Further, the complaint (page 7) accepts, without strenuous objection, the legitimacy of NYS's stated justification against the religious exemption: "everybody from the Pope on down is encouraging people to get vaccinated."

There are multiple responses to such a claim.  For example, first, "everybody" is not taking that position.  (For just one of many examples, see here.)  Second: The pope is not a scientist or a medical expert, so he is way out of his lane here.  Third: "Encouraging" is one thing, but that is a far cry from a "mandate" where the person loses his employment, etc.  None of these objections was in the complaint.

The complaint did make a good case that those opting out of the NYS injection mandate for religious reasons are being treated inequitably compared to those whom NYS has allowed to opt out for medical reasons.

Lastly, although the complaint went into detail about how the injection mandate adversely affects health care workers with a religious objection, it failed to look at the other side of the coin.

Since one of NYS's main two arguments is that they are acting for the "public good," the complaint should have addressed how losing qualified healthcare workers — in an already understaffed situation — is not in the public's interest.

Kudos to these attorneys for taking on this important issue.  However, my take is that although it is well intentioned, their case against NYS's injection mandate was too narrow and unnecessarily weak.

Unfortunately, some attorneys don't appreciate the significant science component to the COVID-19 matter, or else they feel they are qualified to address the science involved.  In my opinion, both positions are strategic errors.

I hope there will soon be further, more robust lawsuits that get to the heart of the matter for such unscientific mandates.

John Droz, Jr. is a physicist.

Photo credit: Mr. Kjetil Ree, CC BY-SA 3.0 license.

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