A few hours after a group of public defenders filed a lawsuit against Gov. Andrew Cuomo calling for people in prisons and jails to be made eligible for the COVID-19 vaccine, the state announced that it would start vaccinating inmates 65 years old and older.
The announcement from the Department of Corrections and Community Supervision that the state would start preparing to vaccinate that older population comes after weeks of pressure on Cuomo to make incarcerated New Yorkers eligible for the vaccine, in light of the high risk of transmission of the virus in congregate facilities such as prisons and jails.
This is just the latest lawsuit against Cuomo that has prompted an abrupt shift in his administration’s pandemic policies. While the lawsuit – which was filed on behalf of inmates by groups including the Neighborhood Defender Service of Harlem, Bronx Defenders and the Legal Aid Society – is the first class action over vaccinations in prisons, it’s not the first suit that has argued that the state’s pandemic restrictions and policies are applied unfairly in some way. The state has actually faced dozens of lawsuits since the start of the pandemic. But while many have failed, a few have succeeded, with some courts finding that Cuomo’s policies unfairly treated some groups differently than others without sufficient justification for doing so.
Representatives for Cuomo did not respond to a request for comment about the lawsuits the administration has faced over its pandemic policies.
Here are a few of the other policies that have proven vulnerable to legal challenge, and why the state’s unofficial policy of not yet vaccinating incarcerated New Yorkers could meet a similar fate.
Restrictions on religious gatherings
Last fall, after Cuomo introduced the state’s new “microcluster” approach to fighting the spread of the virus, areas of New York that were identified as “red zones” – which today is defined by certain metrics including approaching 90% hospital capacity – faced more stringent pandemic restrictions than other parts of the state, including a 25% capacity limit on houses of worship, or a maximum of 10 people. In areas classified as “orange zones” – where the spread of the virus was slightly less intense, but growing – houses of worship faced a 33% capacity limit or 25-person cap.
Religious organizations, including the Roman Catholic Diocese of Brooklyn and Agudath Israel of America – a grassroots Orthodox Jewish organization – quickly sued over the restrictions, arguing that they violated the First Amendment of the U.S. Constitution’s right to the free exercise of religion. Agudath Israel also argued that Cuomo had unfairly singled out Orthodox Jews for the virus’ spread.
Although many pointed out that the microcluster restrictions treated houses of worship more favorably than schools or non-essential businesses – which were closed entirely in red zones – religious organizations argued that not only should they be considered essential, but the restrictions in place didn’t account for things like the size of the venue. Why should a church that can seat 500 people have the same 10-person cap as a church that can seat 50?
While lower courts upheld Cuomo’s restrictions, the case eventually reached the U.S. Supreme Court, which in November struck down Cuomo’s order in a 5-4 split. The court’s conservative majority found that the orders did violate the First Amendment and treated religious activities more harshly than others. “The regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment,” an unsigned opinion by the court read. “In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as ‘essential’ may admit as many people as they wish.” The court went on to list the kinds of businesses that are essential, including acupuncture facilities and garages.
One reason why this policy failed to hold up under the Supreme Court’s scrutiny is political. Earlier that summer, the Supreme Court actually upheld similar restrictions on religious gatherings by two other states. But that was before the death of Justice Ruth Bader Ginsburg, and the addition of conservative Justice Amy Coney Barrett to the bench. “That shift in Supreme Court personnel, I think, makes a big difference,” said Scott Lemieux, a teaching professor of political science at the University of Washington.
Like many other constitutional law experts, Lemieux has raised objections to the Supreme Court’s overturning of Cuomo’s restrictions on religious gatherings. Still, he said that Cuomo’s restrictions did have weak points. “I will admit, as someone who would have voted the other way with respect to the religious discrimination suit, it was not an incredibly well-crafted (policy),” he said. “You have to make some allowance for the pandemic, but certainly I think there probably could have been some accommodations made to churches that wouldn’t have threatened public health. In particular, the fact that he didn’t adjust for the size of the venue,” Lemieux said, referring to the fact that the 10-person capacity cap applied regardless of how large a venue was.
Indoor dining ban
More recently, the Cuomo administration has come under fire for what some argued were indiscriminate bans on indoor dining in different parts of the state. Last month, a judge blocked the state’s ban on indoor dining in “orange zones” in Erie County, where a group of over 90 restaurants sued Cuomo over the restrictions. After that ruling, the 90-plus restaurants in the lawsuit were allowed to reopen indoor dining, and soon after, the state lifted all other orange zone restrictions in the state.
The judge in that case said that he could find no evidence that the state had a “rational basis” to designate parts of Erie County orange zones and therefore shutter indoor dining. Despite Erie County as a whole exceeding the metrics to classify it as a red zone, the judge said, some parts of the county were under yellow zone restrictions while other parts of Western New York were under no zone restrictions at all. The judge also found that the restrictions would cause irreparable harm to the restaurants.
While courts are generally supposed to aim for deference to governors during emergency situations such as a pandemic, Lemieux said that the legal standard of a “rational basis” is a fairly low bar for a policy to clear. Essentially, the rational basis test asks whether there is some logical connection between the reasoning behind a policy and the goal of that policy.
Still, deference to the executive is important in these situations, Lemieux said, and it’s not reasonable to expect that every one of the governor’s orders will be perfectly crafted. “In a pandemic, you can’t expect these things to be airtight,” he said. “These decisions are being made quickly, often on the basis of uncertain evidence, and governors have to be given some leeway.” For the time being, that means we should expect to see more of these kinds of lawsuits rolling in, whether they end up being successful or not.
Vaccinations in prisons
That brings us to the mounting pressure to make people in New York’s prisons and jails eligible for the COVID-19 vaccine. While corrections officers can already get the vaccine, inmates cannot – a fact this new lawsuit takes issue with. “The argument is really that Gov. Cuomo and the Department of Health’s refusal to include incarcerated people as a group in the current priority categories – with the people who are already authorized (including) people living in congregate facilities and correctional officers – has no rational basis,” said Elizabeth Fischer, a supervising attorney at the Neighborhood Defender Service of Harlem, one of the organizations that filed the lawsuit on behalf of two incarcerated people held at Rikers Island. The lawsuit also argues that not vaccinating inmates – a population in which Black and Latino people are overrepresented – violates the Equal Protection clause of the 14th Amendment. Fischer also said that the refusal to vaccine inmates flies in the face of public health advice which encourages both staff and inmates to be vaccinated at the same time.
“The past year has been the scariest of my life. I have asthma, and every day that passes
without being vaccinated leaves me anxious that I might be the next person to get sick, or that I
may pass COVID onto other people,” Alberto Frias, who is being held at Rikers Island and is one of two plaintiffs named in the suit, said in a press release. “(Rikers Island) is very unsanitary and risky. It is impossible to stay six feet apart. You eat together, you use the same showers. DOC does not supply masks within the housing area, so people are walking around without masks. I am simply asking to be treated fairly and with dignity.”
Lemieux said that the suit makes a reasonable argument, but it all comes down to who hears the case. In state court, where the suit was filed, it may be more likely to find a favorable ear than in federal court, which in the Trump era has shifted more conservative. “Prisoners have a pretty compelling case. They’re being held against their will and the state has an obligation to protect their health,” Lemieux said. “If the vaccine is available for homeless people but not for prisoners, the state is going to have to have a good justification for that different treatment.”
Fischer and criminal justice advocates said that the state has given no explanation for why the vaccine would be available to people living in other congregate facilities such as homeless shelters, but not in prisons. “From the very beginning of the pandemic, incarcerated New Yorkers have been treated as an afterthought. We've seen for the last 10 months that incarcerated New Yorkers were deprioritized for testing,” said Alexander Horwitz, executive director of New Yorkers United for Justice, a coalition of criminal justice reform advocacy groups. Horwitz spoke to City & State before the lawsuit was made public on Thursday. “Unfortunately, it is not a surprise that they've been deprioritized to receive vaccines,” he said.
Khalil Cumberbatch, a senior fellow at the Council on Criminal Justice – a think tank that creates policy recommendations for federal and state governments on criminal justice – said that while New York has received praise for its handling of the pandemic, it has consistently failed incarcerated New Yorkers. “What we're seeing is just a real lack of urgency and a real lack of concern, quite honestly, by DOCCS in particular, to prioritize the people that they are caring for,” he said in an interview with City & State before the lawsuit was made public. A spokesperson for the state Department of Corrections and Community Supervision said they couldn’t comment on pending litigation, and neither the department nor representatives for Cuomo offered an explanation for why inmates were not being vaccinated.
While DOCCS has continually said that it’s working to “develop a plan” to vaccinate incarcerated people, it appears that this lawsuit is what finally forced it to put that plan into action. "There are 1,075 people who are in the system who are 65 and older, and DOCCS is in the process of preparing to vaccinate that population consistent with statewide guidance for that age group,” spokesperson Thomas Mailey said in an email statement on Thursday afternoon.
This doesn’t mean the plaintiffs’ fight is over, as the lawsuit aims to ensure all incarcerated New Yorkers are eligible for the vaccine. The plaintiffs argue that inmates 65 and older were already eligible, but just not being vaccinated. “Today’s announcement that New York will begin moving toward offering the vaccine to elderly people in prison – who have been eligible for the vaccine now for weeks – has little to do with the patently illegal and immoral practice challenged in court today,” a Thursday statement from the Neighborhood Defender Service of Harlem, Bronx Defenders, Legal Aid Society, Brooklyn Defender Services and the New York Civil Liberties Union said. “Every single person incarcerated in New York needs access to the vaccine.”