Liberty Counsel will present oral argument to the Second Circuit Court of Appeals on Friday, Dec. 15 in John Does 1-2, Jane Does 1-3 v. Hochul to argue the Court should reverse a lower court’s dismissal and allow the case to proceed to a discovery phase and trial. 

Liberty Counsel seeks justice for five New York state health care workers who were fired for refusing to take the COVID shot due to their deeply held religious convictions. According to their religious beliefs, the health care workers could not accept any shot associated with aborted fetal cell lines. The state’s mandate required employers to force health care workers to get the shot and denied religious exemptions while approving nonreligious medical exemptions.

The State of New York argues the case is now “moot” since its mandate for state health care workers has been rescinded. The state seeks to dismiss the lawsuit which would allow the state to avoid accountability for violating the First Amendment and Equal Protection Clauses. The defendants in this case include Governor Kathy Hochul, Department of Health Commissioner Dr. Howard A. Zucker, Trinity Health, Inc., New York Presbyterian Healthcare System, Inc., and Westchester Medical Center Advanced Physician Services, P.C.

In a brief to the Court, Liberty Counsel argues the case is not moot since the “constitutional injury” suffered by the health care workers cannot be ignored, and involuntarily ceasing questionable behavior is insufficient grounds for the state to evade judicial review. Moreover, the mootness argument does not apply to the Title VII employment law respecting the private employers since the injury has already occurred in the past.

Incidentally, over the last 13 months, the New York Supreme Court (a trial court) has struck down several COVID shot mandates for state health care workers and New York City (NYC) employees declaring the mandates “arbitrary and capricious.” As a result, both the State of New York and NYC officially repealed their mandates earlier this year. One judge went a step further and declared the “blanket” denial of religious exemptions was also “arbitrary, capricious, and unreasonable” and has ordered nearly 9,000 NYC workers reinstated who were unlawfully terminated for refusing to abide by the illegal mandate.

Liberty Counsel stated, “[W]hen the government ceases a challenged policy without renouncing it, the voluntary cessation is less likely to moot the case,” wrote Liberty Counsel. “[A] defendant’s failure to acknowledge wrongdoing similarly suggests that cessation is motivated by a desire to avoid liability, and furthermore ensures that a live dispute between the parties remains.”

Liberty Counsel Founder and Chairman Mat Staver said, “This case is not moot. The State of New York forced health care workers to choose between their livelihoods and their religious convictions without any consideration for accommodation. The New York Supreme Court has already judged COVID mandates and religious exemption denials as unlawful. New York should be held accountable for unlawfully violating the religious rights of these health care workers.”