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

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

DR. 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. 

JUSTICE THOMAS, with whom JUSTICE ALITO and 

JUSTICE GORSUCH join, dissenting from the denial of certiorari. 

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-healthcareworkers. The State exempted employees from the mandate

if vaccination would be “detrimental 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) (GORSUCH, J., dissenting from denial

of application for injunctive relief ) (slip op., at 3). Consequently, those who qualified for the broad medical exemption simply had to employ standard protective measures 

and could keep their jobs. But those who objected for religious reasons would be fired, even if they took the same protective 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–19 
 

 

2 DR. A. v. HOCHUL 

THOMAS, J., dissenting 

vaccines because they were developed using cell lines derived from aborted children. Pet. 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’ emergency 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 review the Court of Appeals’ 

decision vacating the District Court’s preliminary injunction. I would grant the petition. We have held that a 

“law . . . lacks general applicability if it prohibits religious 

conduct while permitting secular conduct that undermines 

the government’s asserted interests in a similar way.” Fulton 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 specific interest that the mandate serves. Three Courts of Appeals and one State Supreme Court agree that such requirements are not neutral or generally applicable and 

therefore trigger strict scrutiny.1 Meanwhile, the Second 

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

984 F. 3d 477, 482 (CA6 2020); Midrash Sephardi, Inc. v. Surfside, 366 
 

 

Cite as: 597 U. S. ____ (2022) 3 

THOMAS, 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 vehicle 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 asserted public health goals equally whether that worker happens to remain unvaccinated for religious reasons or medical ones.” Dr. A., 595 U. S., at ___ (opinion of GORSUCH, J.)

(slip op., at 8). The Court could give much-needed guidance 

by simply deciding whether that single secular exemption 

renders the state law not neutral and generally applicable.

Moreover, I would not miss the chance to answer this recurring question in the normal course on our merits docket. 

Over the last few years, the Federal Government and the

States have enacted a host of emergency measures to address the COVID–19 pandemic. Many were not neutral toward 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 Circuit 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) (KAGAN, 

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). 2See 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 DR. A. v. HOCHUL 

THOMAS, 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 ordinary course, before the next crisis forces us again to decide 

complex legal issues in an emergency posture, I respectfully 

dissent.