Will the Supreme Court reenter the vaccine wars?

It’s been more than five years since the start of the COVID-19 pandemic, but legal disputes from the pandemic continue to arise. And the Supreme Court may not be done weighing in. At least three petitions related to COVID-19 vaccine mandates are currently awaiting the justices’ review for the 2025-26 term, including two focused on access to religious exemptions.

Does 1-2 v. Hochul centers on a New York state mandate issued in 2021 – but since repealed – that required employees at hospitals and nursing homes to be vaccinated against COVID-19 if they could expose patients, residents, or other employees to the virus if infected. The case was brought by a group of unnamed workers who, for religious reasons, refused to comply with the mandate and were then terminated. According to them, their former employers’ implementation of the mandate violated Title VII of the Civil Rights Act, which requires employers to make religious accommodations unless doing so would create “undue hardship” on the business.

In their petition to the Supreme Court, the workers argue that the U.S. Court of Appeals for the 2nd Circuit, in holding in December 2024 that employers could refuse to accommodate their faith-based objections to vaccination, wrongly allowed a state policy to preempt Title VII. The workers are seeking money damages from their former employers.

Kane v. City of New York also raises religious freedom concerns and comes to the Supreme Court from the 2nd Circuit. The case was brought by teachers and school administrators who were denied religious accommodations under a since-repealed New York City mandate requiring public-education employees to be vaccinated against COVID-19. While Christian Scientists, Jehovah’s Witnesses, and others in faith groups that publicly opposed vaccination were exempted from the policy, accommodation requests from people in religions that promoted vaccination, such as Catholicism, were often denied.

Initially, in November 2021, the 2nd Circuit sided with the educators and instructed New York City to reevaluate their denied requests with an eye toward Title VII and local nondiscrimination rules. But when, after the mandated review, the city again declined to offer requested accommodations, the 2nd Circuit allowed the denials to stand. After the educators amended their lawsuit, the 2nd Circuit dismissed the case as moot in 2024 because, by then, New York City officials had rescinded the challenged policy. In their Supreme Court petition, the educators contend that the New York City mandate unlawfully privileged certain religious beliefs over others by treating members of faith groups that historically oppose vaccination differently from members of faith groups that typically support vaccination and that they are entitled to relief for how they suffered under the policy.

Like Kane, Wilkins v. Herron stems from a COVID-19 policy affecting teachers and other educators. Specifically, the case began when an Oregon school district notified teachers that they would need to be vaccinated or else wear a mask while at work. The plaintiff in the case, Keith Wilkins, refused to comply and was placed on unpaid leave. He then filed a lawsuit against school district leaders, arguing that they had violated the right to informed consent granted by the Food, Drug, and Cosmetic Act, under which the use of COVID-19 vaccines and masks had been authorized, by failing to educate him about the potential risks and benefits of vaccination and masking. A federal district court dismissed the case, holding that the act does not give individuals a legal right to sue over its enforcement, and the U.S. Court of Appeals for the 9th Circuit later affirmed that decision.

With these petitions, the court has a chance to address what some justices may see as unfinished business. The Supreme Court previously weighed in on two vaccine mandates imposed by the Biden administration with two opinions released on Jan. 13, 2022: one decision blocked a mandate for large employers and the other allowed a mandate for health care facilities receiving federal funds to take effect. But the court turned down several other opportunities to temporarily block or hear arguments on vaccination requirements from states, cities, and individual employers, sometimes over the objections of its most conservative justices.

For example, in October 2021, Justice Neil Gorsuch (joined by Justices Clarence Thomas and Samuel Alito) dissented from the court’s decision rejecting an emergency request from health care workers in Maine with religious objections to the COVID-19 vaccine. Gorsuch argued that the state’s vaccine mandate violated religious freedom protections by offering medical exemptions but not religious ones. “Where many other States have adopted religious exemptions, Maine has charted a different course. There, healthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention,” Gorsuch wrote.

Gorsuch again dissented in December 2021 in an emergency docket dispute stemming from the same New York mandate that’s now at the center of Does 1-2 v. Hochul, which required most employees at hospitals and nursing homes to be vaccinated against COVID-19. In an opinion joined by Alito, Gorsuch contended that the state’s rules “‘intentionally’ targeted for disfavor” those with religious objections to the COVID-19 vaccines. “Today, we do not just fail the applicants. We fail ourselves. It is among our Nation’s proudest boasts that ‘[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in [matters of] religion,’” Gorsuch wrote.

Six months later, after the court turned down a cert petition in the same case, Thomas dissented, joined by Gorsuch and Alito. “[T]here remains considerable confusion of 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,” he wrote, adding that the court should address that confusion on the merits docket “before the next crisis forces us again to decide complex legal issues in an emergency posture.”

That said, since 2022, the court has turned down several COVID-related petitions without noted dissents, including in cases about who should be eligible for religious exemptions to workplace vaccine mandates and whether such mandates violate the Americans with Disabilities Act by discriminating against people who have contracted COVID-19. Additionally, the court in late 2023 set aside lower court rulings on federal vaccine mandates that had since been rescinded, signaling that it was comfortable leaving the underlying conflicts unresolved, perhaps until a future health emergency brings new urgency to the debates.

The Supreme Court might be more interested in hearing a vaccine case that’s not directly tied to the COVID-19 pandemic, and it has just such an opportunity in Miller v. McDonald. In that case, which was appealed to the Supreme Court last week, three Amish individuals and three private Amish schools are challenging New York’s 2019 decision to stop offering religious exemptions under its school vaccine requirement.

The plaintiffs, who filed their lawsuit in 2023 after the state health department charged the three schools with violating the vaccine rules, contend that the policy – and lower court rulings against them – violate recent Supreme Court decisions on the free exercise clause which held that government officials can’t refuse to offer religious exemptions if they offer other types of exemptions. In June 2024, the justices declined to take up a similar case on Connecticut’s decision to stop offering religious exemptions from vaccine requirements for public schools with no noted dissents, but that case was more closely tied to the COVID-19 pandemic, since Connecticut didn’t change its school vaccine requirements until 2021.

The Supreme Court will likely announce whether it will hear any of the new vaccine-related petitions sometime this fall. Does 1-2 v. Hochul is fully briefed as of last week. New York City officials have not yet responded to the cert petition in Kane v. City of New York, and NewYork state officials have not yet responded to the cert petition in Miller v. McDonald. Wilkins v. Herron has been distributed for the court’s “long conference” on Sept. 29, when the justices will work through the many petitions that piled up during the summer recess, but the school district has waived its right to file a response to Wilkins’ petition. Unless a justice calls for a response, the case almost certainly won’t be heard.

Regardless of whether the justices will take part, it’s certainly fair to say that pandemic-era vaccine wars are still being waged and may be unlikely to abate any time soon.