The Supreme Court has once again declined to intervene in a long-running legal battle over New York’s COVID-19 vaccine mandate for healthcare workers, rejecting a petition for rehearing in Does 1-2 v. Hochul on September 4, 2026. The denial came as part of the third and final regularly scheduled summer order list — a procedural milestone that effectively closes the door, at least for now, on what religious liberty advocates had framed as a critical test of how far states may go in overriding federal employment discrimination protections during a public health emergency. By refusing to revisit its June 29 denial of certiorari, the Supreme Court leaves in place a Second Circuit ruling that federal antidiscrimination claims must yield to contrary state statutory schemes, a legal principle that dissenting justices warned could have sweeping consequences for religious accommodation claims nationwide.
The case, which originated in the early months of the COVID-19 vaccination campaign, has wound through the federal courts for years, surviving initial dismissals, appellate reversals, and a prior denial of Supreme Court review. Its final chapter — a denial of rehearing without even requesting a response from New York Governor Kathy Hochul — underscores the Court’s continued reluctance to engage with the substantive constitutional and statutory questions at its core, even as a circuit split on those questions has begun to crystallize.
A Procedural Endgame on the Summer Order List
The Supreme Court’s summer order lists serve a unique and largely administrative function within the Court’s annual calendar. Between the final conference held in late June or early July and the “long conference” in late September, the Court accumulates a backlog of pending petitions, emergency applications, and requests for rehearing. Summer order lists provide the justices with an opportunity to clear this docket before the new term begins. The Court does not typically add new cases to its merits docket from these summer lists, though it retains the discretion to do so — as it demonstrated on July 20, 2026, when it granted review in Jouppi v. Alaska, a separate case that emerged from the same summer order cycle.
The September 4 list marked the final such cleanup before the justices return for the “long conference” on September 28, 2026, where they will begin considering the term’s first wave of new petitions for certiorari. The denial of rehearing in Does 1-2 v. Hochul was among a series of summary dispositions that attracted relatively little public attention, but within the narrower universe of religious liberty and public health law, the decision carries significant weight.
The Legal Dispute: Religious Accommodation and State Law
At the heart of Does 1-2 v. Hochul is a conflict between New York State’s COVID-19 vaccine mandate for healthcare workers and the federal religious accommodation requirements imposed by Title VII of the Civil Rights Act of 1964. Under Title VII, employers are generally required to accommodate an employee’s sincerely held religious beliefs unless doing so would impose an “undue hardship” on the employer’s business. The Supreme Court clarified in its 2023 decision Groff v. DeJoy that the undue hardship standard requires more than a mere showing of de minimis cost — an employer must demonstrate substantial increased costs in the context of its particular business operations.
The healthcare workers in Does 1-2 v. Hochul argued that New York’s mandate, which prohibited employers from granting religious exemptions to the vaccine requirement, effectively nullified their Title VII rights. When their employers — hospitals and healthcare facilities subject to the state mandate — refused to accommodate their religious objections, the workers lost their jobs. They contended that the state law could not preempt federal employment discrimination protections and that the state could not shield employers from liability by enacting a mandate that foreclosed any possibility of individualized accommodation.
The Second Circuit rejected this argument, holding that federal antidiscrimination claims must yield to contrary state statutory schemes. In practical terms, the appeals court ruled that an employer who is prohibited by state law from granting a religious accommodation cannot be held liable under Title VII for failing to provide one. The state mandate, in the Second Circuit’s view, supplied an automatic defense to any failure-to-accommodate claim, regardless of the individualized circumstances of the employee’s religious objection.
What Is the “Undue Hardship” Defense Under Title VII After Groff v. DeJoy?
The “undue hardship” defense in Title VII religious accommodation cases allows employers to deny an accommodation if granting it would impose significant difficulty or expense on the business. In Groff v. DeJoy (2023), the Supreme Court raised the bar for this defense, holding that employers must demonstrate “substantial increased costs” — not merely a minimal burden — to successfully invoke it. Justice Neil Gorsuch, writing for the majority, emphasized that the undue hardship standard must be applied with rigor and cannot be satisfied by speculative or generalized assertions of burden. The Does 1-2 case presented a novel wrinkle: whether a state law that categorically prohibits accommodations can, by itself, satisfy the employer’s burden under the undue hardship framework. Justice Gorsuch, dissenting from the denial of certiorari, argued that it cannot — that an unconstitutional state law prohibiting accommodation should not automatically immunize employers from Title VII liability.
The Dissenting Justices’ View: An Important and Recurring Question
When the Supreme Court denied the healthcare workers’ original petition for review on June 29, 2025, Justice Neil Gorsuch filed a dissent joined by Justices Clarence Thomas and Samuel Alito. Gorsuch’s dissent laid out a forceful argument for why the case warranted the Court’s attention.
“I fail to see,” Gorsuch wrote, “how a state law (especially an unconstitutional state law) prohibiting an accommodation can always and automatically supply an employer with a” defense that accommodating the employee’s religious observance or practice would place an “undue hardship” on the employer’s business. The core of Gorsuch’s concern was that the Second Circuit’s logic created a categorical rule — any state prohibition on accommodations automatically satisfies the employer’s undue hardship defense — that effectively rewrites Title VII’s individualized inquiry into a blanket exemption for any jurisdiction that chooses to legislate in this area.
The dissent characterized the question as “important and recurring,” noting that the interaction between state public health mandates and federal religious accommodation requirements is not a one-time product of the COVID-19 pandemic but a recurring issue that could arise in future public health emergencies, workplace safety regulations, and other contexts where state law conflicts with federal employment protections.
The Petition for Rehearing and the Emerging Circuit Split
After the Supreme Court denied certiorari in June 2025, the healthcare workers filed a petition for rehearing on July 23, 2026. In that petition, they presented new evidence that the legal landscape had shifted since the original denial. Specifically, they pointed to a decision by the U.S. Court of Appeals for the Ninth Circuit that had adopted a framework substantially similar to the Second Circuit’s — holding that religious accommodations must yield to contrary state laws.
The emergence of a confirmed circuit split is one of the most compelling factors the Supreme Court considers in deciding whether to grant review. When two or more federal appeals courts reach conflicting conclusions on the same question of federal law, the Supreme Court’s role as the ultimate arbiter of federal law is most clearly implicated. The healthcare workers argued that the Second Circuit’s approach was no longer an outlier — and that the Ninth Circuit’s adoption of the same framework meant that the question had become even more pressing for national resolution.
Additionally, the petitioners argued that the Second Circuit itself had continued to adhere to its position that “federal antidiscrimination claims must yield to contrary state statutory schemes,” signaling that further litigation within that circuit would not produce a different outcome. This persistence — the refusal of the lower court to reconsider its approach in light of Groff v. DeJoy or other intervening developments — underscored the need for Supreme Court intervention.
The Court denied rehearing on September 4, 2026, without soliciting a response from Governor Hochul’s office. The absence of a request for a response is notable: it suggests that the Court did not find even a colorable argument for reconsideration, or that the justices who voted against certiorari in June remained unpersuaded by the new information about the circuit split.
The Broader Significance of the Denial
The Supreme Court’s refusal to hear Does 1-2 v. Hochul has several practical and doctrinal implications that extend well beyond the individual healthcare workers involved in the case.
For Healthcare Workers and Religious Accommodation Claims
The most immediate consequence is that healthcare workers in the Second Circuit — covering New York, Connecticut, and Vermont — who lost their jobs due to the state’s vaccine mandate and sought religious accommodations are highly unlikely to obtain relief through federal litigation. The Second Circuit’s rule that state law prohibitions on accommodations automatically defeat Title VII claims is now effectively final, absent a future statutory amendment or a different vehicle that might present the question in a more appealing procedural posture.
Workers in the Ninth Circuit — covering California, Oregon, Washington, and several other western states — face a similar rule. The circuit split between these two approaches and the rest of the federal appellate courts remains unresolved, meaning that a healthcare worker’s ability to obtain a religious accommodation from a state vaccine mandate depends largely on where they live. This geographic disparity is exactly the kind of outcome the Supreme Court typically steps in to remedy.
For State Governments and Public Health Mandates
The decision gives state governments broader latitude to design public health mandates that do not include religious exemptions. If the Second Circuit’s approach is ultimately adopted by other circuits — or if the Supreme Court eventually signals approval of that framework — states may feel emboldened to mandate vaccines, treatments, or other health interventions without building in individualized religious accommodation processes, knowing that the state law prohibition will serve as a complete defense to Title VII claims.
Public health officials may view the ruling as a legal validation of the approach taken during the height of the COVID-19 pandemic, when several states imposed vaccine mandates with limited or no religious exemptions for healthcare workers. The ruling does not, however, resolve the constitutional questions under the First Amendment’s Free Exercise Clause, which were raised but not squarely addressed in the Second Circuit’s decision or in the Supreme Court’s denial of review.
For the Supreme Court’s Docket and Future Petitions
The denial of rehearing does not foreclose the possibility that the Court will eventually take up the question in a different case. The circuit split between the Second and Ninth Circuits on one side and other circuits on the other side remains a live controversy. If the Court grants certiorari in a future case — perhaps one with more sympathetic facts, a cleaner procedural posture, or a stronger record of constitutional harm — the legal question could return to the merits docket in a subsequent term.
However, the fact that the Court declined to engage even after the emergence of a confirmed circuit split suggests that the justices may be waiting for a case that presents the issue more squarely, or that the current majority is not convinced that the Second Circuit’s approach is clearly erroneous. The denial also signals that the Court may be reluctant to revisit the legal landscape of COVID-19 vaccine mandates, a subject on which it has previously declined several high-profile petitions.
The Long Conference and the Path Forward
The Supreme Court will convene for its “long conference” on September 28, 2026, at which the justices will consider the first batch of petitions for certiorari for the 2026-2027 term. The long conference is traditionally the most consequential single conference of the year, as it processes petitions filed over the summer and sets the early direction of the term’s docket. The justices are likely to issue an initial list of orders from that conference later that week.
The long conference will also provide the first indication of whether the Court intends to fill any gaps left by its summer order lists. The September 28 conference could produce grants of certiorari in cases that were held over from the summer or that were filed after the summer order list cycle concluded. Religious liberty and public health advocates will be watching closely for any signals that the Court is prepared to revisit the questions raised in Does 1-2 v. Hochul through a different vehicle.
It is also possible that Congress could intervene to clarify the interaction between state public health mandates and federal religious accommodation requirements. Legislative proposals to amend Title VII or to impose conditions on federal funding for states that mandate vaccinations without religious exemptions have been floated in previous sessions, though none have advanced to the point of serious consideration. The Supreme Court’s continued refusal to resolve the issue may increase pressure on lawmakers to act, particularly if the circuit split deepens or if additional states enact mandates with similar features.
Why Did the Supreme Court Decline to Hear Does 1-2 v. Hochul?
The Supreme Court does not provide reasons for denying certiorari or rehearing, so any explanation for its decision must be inferred from the justices’ votes, prior statements, and general patterns in the Court’s docket. Several factors likely contributed to the denial. First, the Court may have concluded that the case was moot or insufficiently live, given that the emergency phase of the COVID-19 pandemic has passed and many healthcare workers have either been vaccinated or moved on to other employment. Second, the justices may have been reluctant to revisit the constitutional questions surrounding vaccine mandates after having passed on multiple opportunities to do so in previous years. Third, the procedural posture of the case — arising from a denial of certiorari followed by a petition for rehearing — meant that the Court would have needed to exercise a discretionary power that it uses sparingly. Finally, the absence of a direct conflict between a state law and a federal statute in a form that clearly called for resolution may have left some justices unconvinced that the case presented a certworthy question.
The dissent from Justice Gorsuch, however, indicates that at least three justices — Gorsuch, Thomas, and Alito — believed the question was important enough to warrant full briefing and argument. With three votes in favor of certiorari, the case fell two votes short of the four needed to grant review. The denial of rehearing suggests that the same three justices were unable to persuade a fourth colleague to join them, even after the emergence of the Ninth Circuit decision.
Practical Implications for Employers and Employees
For employers in the Second and Ninth Circuits, the ruling provides a measure of legal clarity: state law prohibitions on religious accommodations for vaccine mandates will generally preclude Title VII liability. Employers who terminated or disciplined employees for refusing vaccination on religious grounds, in compliance with state mandates that prohibited exemptions, can take some comfort in knowing that the Second Circuit’s framework has withstood Supreme Court review. However, employers should remain cautious. The law in this area remains unsettled outside the Second and Ninth Circuits, and the Supreme Court could still grant review in a future case that reaches the question from a different appellate court.
For employees with religious objections to vaccination requirements, the options are more limited. In the Second and Ninth Circuits, federal employment discrimination claims are unlikely to succeed as long as the state mandate categorically prohibits accommodations. Employees may still have remedies under state constitutional law, state employment statutes, or the First Amendment’s Free Exercise Clause, though these claims face their own procedural and substantive hurdles. Some employees have pursued claims under the New York State Constitution’s free exercise protections, but those claims have generally not succeeded in the state courts.
The broader lesson for employees is that the viability of a religious accommodation claim can depend heavily on the state in which they work and the specific language of the state mandate. As the legal landscape continues to evolve following Groff v. DeJoy, employees and their advocates will need to monitor developments in each circuit carefully.
The Unsettled Constitutional Questions
While the Supreme Court’s denial of rehearing in Does 1-2 v. Hochul resolves the immediate procedural question, it leaves unanswered several deeper constitutional issues that are likely to resurface. The most significant is whether a state law that prohibits religious accommodations for a vaccine mandate violates the First Amendment’s Free Exercise Clause, either on its face or as applied. The Second Circuit did not reach the constitutional question, holding that the Title VII claim failed regardless of the state law’s constitutionality. The healthcare workers had argued that the state law was unconstitutional, but the appeals court ruled that even an unconstitutional state law could provide a defense to a Title VII claim — a position that Justice Gorsuch sharply criticized in his dissent.
If the Second Circuit’s reasoning is applied broadly, it could create a perverse incentive for states to enact laws that deliberately override federal religious accommodation protections, knowing that those laws will immunize employers from liability even if the laws themselves are later struck down. The constitutional question of whether such a strategy passes muster under the Supremacy Clause or the Free Exercise Clause remains unresolved, and it could become the focus of a future Supreme Court case that reaches the Court through a different procedural path.
The Supreme Court’s denial of rehearing in Does 1-2 v. Hochul marks the end of a long legal saga for the New York healthcare workers who sought religious accommodations from the state’s COVID-19 vaccine mandate. But the legal questions at the heart of the case — the interaction between state public health mandates and federal religious accommodation protections, the scope of the undue hardship defense after Groff v. DeJoy, and the constitutional limits on state power to override federal employment discrimination law — remain unresolved. With a circuit split now confirmed and a dissenting opinion on the books from three justices, the question is not whether these issues will return to the Supreme Court, but when and in what form they will arrive.
