1 Cite as: 597 U. S. ____ (2022)

T HOMAS , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

D R . A., ET AL

. v. KATHY HOCHUL, GOVERNOR OF NEW YORK, ET AL

.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 21–1143. Decided June 30, 2022
The petition for a writ of certiorari is denied.
J USTICE T HOMAS , with whom J USTICE A LITO and J USTICE G ORSUCH join, dissenting from the denial of certi

orari. In August 2021, New York mandated that all healthcare workers receive a COVID–19 vaccine. See 10 N. Y. Admin.Code §2.61 (2021). It did so to “stop the spread” of the thenprevailing Delta variant of the COVID–19 virus. New York State Governor’s Office, Governor Cuomo Announces COVID–19 Vaccination Mandate for Healthcare Workers (Aug. 16, 2021), https://www.governor.ny.gov/news/governor -cuomo-announces-covid-19-vaccination-mandate-healthcare

workers. The State exempted employees from the mandate if vaccination would be “detrime ntal to [their] health.” §2.61(d)(1). However, the State denied a similar exemption to those with religious objections. See Dr. A. v. Hochul , 595 U. S. ___, ___ (2021) (G ORSUCH , J., dissenting from denial of application for injunctive relief ) (slip op., at 3). Conse

quently, those who qualified for the broad medical exemp

tion simply had to employ standard protective measures and could keep their jobs. But those who objected for reli

gious reasons would be fired, even if they took the same pro

tective measures. See id. , at ___–___ (slip op., at 3–5). Petitioners are 16 healthcare workers who served New York communities throughout the COVID–19 pandemic. They object on religious grounds to all available COVID–192 D R . A. v. HOCHUL

T HOMAS , J., dissenting vaccines because they were developed using cell lines de

rived from aborted children. Pe t. for Cert. 8. Ordered to choose between their jobs and their faith, petitioners sued in the U. S. District Court for the Northern District of New York, claiming that the State’s vaccine mandate violated the Free Exercise Clause. The District Court agreed and issued a preliminary injunction. ___ F. Supp. 3d ___, ___, 2021 WL 4734404, *8 (Oct. 12, 2021). The Court of Appeals reversed. We the Patriots USA, Inc . v. Hochul , 17 F. 4th 266 (CA2 2021) ( per curiam ); We the Patriots USA, Inc . v. Hochul , 17 F. 4th 368 (CA2 2021) (per curiam ). This Court then denied petitioners’ emer gency application to reinstate the injunction, which three of us would have granted. See Dr. A. , 595 U. S., at ___ (slip op., at 1). Since then, “every Petitioner except one has been fired, forced to resign, lost admitting privileges, or been coerced into a vaccination.” Pet. for Cert. 13–14, and n. 10. Petitioners now ask us to re view the Court of Appeals’ decision vacating the Distri ct Court’s preliminary injunc

tion. I would grant the petition. We have held that a “law . . . lacks general applicab ility if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted in terests in a similar way.” Ful

ton v. Philadelphia , 593 U. S. ___, ___ (2021) (slip op., at 6). Yet there remains considerable confusion over whether a mandate, like New York’s, that does not exempt religious conduct can ever be neutral and generally applicable if it exempts secular conduct that similarly frustrates the spe

cific interest that the mandate serves. Three Courts of Ap

peals and one State Supreme Court agree that such re

quirements are not neutral or generally applicable and therefore trigger strict scrutiny. 1 Meanwhile, the Second

—————— 1 See Monclova Christian Academy v. Toledo-Lucas Cty. Health Dept.

, 984 F. 3d 477, 482 (CA6 2020); Midrash Sephardi, Inc . v. Surfside , 3663 Cite as: 597 U. S. ____ (2022)

T HOMAS , J., dissenting Circuit has joined three other Courts of Appeals refusing to apply strict scrutiny. 2 This split is widespread, entrenched, and worth addressing. This case is an obvious vehicl e for resolving that conflict. The New York mandate includes a medical exemption but no religious exemption, even though “allowing a healthcare worker to remain unvaccinated undermines the State’s as

serted public health goals equal ly whether that worker hap

pens to remain unvaccinated for religious reasons or medi

cal ones.” Dr. A. , 595 U. S., at ___ (opinion of G ORSUCH , J.) (slip op., at 8). The Court could give much-needed guidance by simply deciding whether t hat single secular exemption renders the state law not neutral and generally applicable. Moreover, I would not miss the chance to answer this re

curring question in the normal co urse on our merits docket. Over the last few years, the Federal Government and the States have enacted a host of emergency measures to ad

dress the COVID–19 pandemic. Many were not neutral to

ward religious exercise or generally applicable. See, e.g., Tandon v. Newsom , 593 U. S. ___, ___ (2021) ( per curiam ) (slip op., at 4) (listing four other cases from the Ninth Cir

cuit alone); Roman Catholic Diocese of Brooklyn v. Cuomo

, 592 U. S. ___ (2020). Circumstances forced us to confront challenges to those measures in an emergency posture, a practice that Members of this Court have criticized. See,
e.g., Merrill v. Milligan , 595 U. S. ___, ___ (2022) (K AGAN , J., dissenting from grant of application for stay) (slip op., at 11) (lamenting use of the so-called “shadow docket to signal

—————— F. 3d 1214, 1234–1235 (CA11 2004); Fraternal Order of Police v. Newark
, 170 F. 3d 359, 365–366 (CA3 1999); Mitchell Cty. v. Zimmerman , 810 N. W. 2d 1, 15–16 (Iowa 2012).

2 See We the Patriots USA, Inc. v. Hochul , 17 F. 4th 266, 284–290 (CA2 2021) ( per curiam ); Doe v. San Diego Unified School Dist. , 19 F. 4th 1173, 1177–1178 (CA9 2021); Doe 1–6 v. Mills , 16 F. 4th 20, 29–31 (CA1 2021); 303 Creative LLC v. Elenis , 6 F. 4th 1160, 1186 (CA10 2021), cert. granted, 595 U. S. ___ (2022) (granting certiorari to review a Free Speech Clause claim).4 D R . A. v. HOCHUL

T HOMAS , J., dissenting or make changes in the law, without anything approaching full briefing and argument”). Here, the Court could grant a petition that squarely presents the disputed question and consider it after full briefing, argument, and deliberation. Unfortunately, the Court declines to take this prudent course. Because I would address this issue now in the ordi

nary course, before the next cri sis forces us again to decide complex legal issues in an emergency posture, I respectfully dissent.