Marty Makary resigned as commissioner of the Food and Drug Administration after losing support from two historically GOP constituencies, upsetting business by resisting approval of flavored vapes and social conservatives by allegedly slow-walking a safety review of a repeatedly deregulated abortion pill with limited safety surveillance.

The Trump administration risks alienating two more by urging the Supreme Court to reject a petition by New York healthcare workers who were fired for spurning COVID-19 vaccination on religious grounds, arguing the state mandate didn't violate federal law.

Solicited by SCOTUS six months ago, when the justices had considered taking the case eight times in seven months with no decision, the Department of Justice's friend-of-the-court brief emphasizes the distinction between "exemption" and "accommodation" for the purposes of recognizing employees' religious rights under Title VII of the Civil Rights Act.

Representing five lead plaintiffs and another 1,500 who were fired after submitting religious accommodation requests, Liberty Counsel filed a supplemental brief days after DOJ's that accused the government of "fundamental errors" regarding the importance of the case and its facts, dismissing the department's focus on "terminology" as irrelevant to Title VII.

Vaccine injury lawyer Aaron Siri mocked the government's brief as "a word salad of nonsense," tagging President Trump's personal X account Tuesday to accuse his administration of "betraying religious liberty by arguing it is perfectly fine for employers to have policies that allow medical but not religious exemptions to vaccination requirements."

Former Saturday Night Live cast member and conservative activist Rob Schneider boosted Siri's account, calling the DOJ brief "a stunning betrayal to ALL the MAHA supporters of this administration." 

Kentucky GOP Rep. Thomas Massie, who recently lost his primary after President Trump called him "the worst congressman the Republican Party's ever had," replied with "Trump Disappointment Syndrome." 

It's the second time the administration has stymied a major constituency in court in less than a month, convincing SCOTUS to reinstate mifepristone's mail-order prescribing conditions while the 5th U.S. Circuit Court of Appeals considers whether prior administrations' relaxation of the abortion pill's regulation violated federal law, as plaintiff Louisiana argues.

DOJ had earlier convinced U.S. District Judge David Joseph to pause the case until the FDA finishes its mifepristone safety review, suggesting that might not happen until after the midterm elections, but the 5th Circuit overruled the first-term Trump nominee, noting the explicit purpose of the permanent mail-order condition was circumventing pro-life state laws.

Liberty Counsel noted three states have criminalized mail-order abortion within their borders in the past two months. Oklahoma threatens fines up to $100,000 and 10 years in prison for giving women abortion pills with the knowledge they are seeking an abortion, Iowa requires in-person dispensing and Mississippi threatens 10 years in prison for distribution.

No circuit split, just 'potential tension between' one court's precedents

The fired healthcare workers, all anonymous, first petitioned the high court more than a year ago, quoting a dissent by Justices Neil Gorsuch, Samuel Alito and Clarence Thomas against their colleagues' refusal to block Maine's no-religious-exemptions vaccine mandate.

"This case presents an important constitutional question, a serious error, and an irreparable injury," Gorsuch wrote for the trio in 2021. 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 [...] for adhering to their constitutionally protected religious beliefs."

The petition emphasizes that New York revoked its initial religious exemption in the COVID vaccine mandate and henceforth banned healthcare workers from even seeking, much less receiving, "any accommodation for their sincerely held religious beliefs." 

Their employers cited state law to ignore or deny requests, claiming "Title VII did not apply."

The 2nd Circuit upheld the mandate on the grounds that granting the sought exemptions would have required plaintiffs' employers, named as defendants alongside Democratic Gov. Kathy Hochul and the New York health commissioner, to violate state law. The petition again quotes Gorsuch, this time from his days at the 10th Circuit, on the Supremacy Clause.

The case has drawn essentially no outside interest over the past 14 months, with only anti-COVID vaccine group America's Frontline Doctors filing a friend-of-the-court brief, which focused more on the alleged dangers of COVID vaccination than legal arguments.

The court docket sat empty for more than six months until last week, when DOJ finally answered the call to tell SCOTUS what it thought of the case.

While Title VII requires employers to "reasonably accommodate religious practice" that does not impose "an undue hardship on their business operations," the brief says, quoting the high court's Groff precedent from 2023. It does not require a "complete" exemption such as that allegedly sought by the New York healthcare workers.

The plaintiffs are correct that foreclosing "any consideration of religious accommodations" would violate Title VII, and that employers could not cite state law to "skirt compliance" with federal law but this law "leaves room for religious accommodations short of complete exemptions" as interpreted by the 2nd Circuit, DOJ said.

There's no circuit split to resolve, just "potential tension between" prior 2nd Circuit precedent and this "unpublished summary order," according to the brief. (Courts mark rulings unpublished to indicate they have no precedential value.)

"Any lack of clarity regarding how New York’s now-repealed law operated would make this case an even poorer vehicle," given that state courts hadn't interpreted it, DOJ also said. 

"Petitioners did not allege that they sought and were denied other accommodations aside from a complete exemption; it is thus an open question whether petitioners could have shown that, in practice, Section 2.61 [the mandate] did not allow any religious accommodations."

'The United States ignores his existence entirely'

The feds don't deny that the fired workers' damages claims are "live and justiceable," making DOJ's focus on the law's repeal inapplicable to the situation, the plaintiffs' supplemental brief says. 

Their employers "destroyed" their lives by refusing to "engage in any interactive process" required by Title VII – even for a remote worker who enjoyed full exemptions from "all vaccines" – because the mandate "forbade them under penalty of fines and loss of their business licenses," the plaintiffs said.

The government's admission that it "would have prevailed if the proper scope of the rule" was as it alleged shows why SCOTUS should at least vacate the ruling and remand it for further consideration of their claims, the brief says.

DOJ had to ignore "sworn testimony" by the plaintiffs to conclude they didn't seek accommodations short of the "complete" exemption, and the state never represented "at any stage of these proceedings that accommodations might be available, just not exemptions," making DOJ's argument "wordplay," the plaintiffs argued.

The first male plaintiff asked New York whether he could provide religious accommodations to employees of his "religious senior healthcare facility," and officials responded that any accommodation "will result in daily fines and a potential closure of his facility." The second male plaintiff's employer said his accommodation was "no longer accepted."

The three female plaintiffs' employers made no distinction between "exemption" and "accommodation," saying they had to follow state law, including by revoking previously granted religious allowances, however phrased, the brief says.

The second male plaintiff's situation conclusively shows "there were no accommodations – not merely that they were so remote as to prove illusory," as DOJ would have it, the plaintiffs said. New York-Presbyterian told the vaccine-exempt remote worker of 10 years "religious exemptions are no longer accepted."

Neither the 2nd Circuit nor the state "distinguished this remote worker from any other employee," according to the brief. "The United States ignores his existence entirely, and its conclusions based upon that glaring omission taint its entire conclusion."