On September 8, the Supreme Court refused to let a Catholic mother in Eastchester, New York keep her five-year-old son enrolled in kindergarten while she fights the state's vaccine law in court. The order ran three sentences. Justices Samuel Alito and Neil Gorsuch said they would have granted it. The other seven justices said nothing at all, and unless a court steps in, the Eastchester Union Free School District will exclude the boy from Waverly School on September 16.
What the Order Actually Says
The case is docketed at the Supreme Court as Doe, Jane v. McDonald, Comm'r, et al., No. 26A239. Jane Doe, suing as next friend of her son C.F., asked for an emergency injunction pending appeal, the kind of relief a single justice can grant to freeze a situation in place while the underlying case works through the courts. Because she lives inside the Second Circuit, her application went first to Justice Sonia Sotomayor, the circuit justice for that court. Sotomayor referred it to the full Court rather than ruling alone, and on September 8 the justices denied it in full: "The application for injunction pending appeal presented to Justice Sotomayor and by her referred to the Court is denied. Justice Alito and Justice Gorsuch would grant the application."
That is the entire order. It does not explain why the majority denied relief, and it does not decide whether New York's vaccine law survives the Free Exercise Clause. It only decides that C.F. does not get to sit in a New York classroom while his mother's lawsuit continues in the Second Circuit, Appeal No. 26-1912.
The vaccines listed under New York Public Health Law Section 2164 include the MMR series. (Photo: Whispyhistory via Wikimedia Commons, CC BY-SA 4.0)
A Law New York Rewrote After a 2019 Outbreak
The fight is over New York Public Health Law Section 2164, which lists the vaccines a child needs to attend school. From 1966 until 2019, parents could opt out on religious grounds. The Legislature repealed that exemption in 2019, Chapter 35 of the 2019 New York Laws, in the middle of what state officials called the nation's worst measles outbreak in a quarter century, one the Legislature found was concentrated in communities with low vaccination rates. Medical exemptions still exist. Religious ones do not, for any faith, no matter how sincerely held.
New York has already defended this law once at the Supreme Court's direction. In December 2025, the justices vacated a Second Circuit ruling in Miller v. McDonald, an Amish family's challenge to the same statute, and sent it back for another look under Mahmoud v. Taylor, the Court's 2025 decision on parents' right to opt children out of instruction that conflicts with their faith. On remand, the Second Circuit reached the same conclusion it had before: Section 2164 is neutral and generally applicable, so it only has to survive rational-basis review, not strict scrutiny. Doe's district court loss in July and her Second Circuit loss in August both rested on that ruling.
"My Body ... Is a Temple of the Holy Spirit"
Doe describes herself in her filings as "a lifelong practicing Roman Catholic." On April 7, 2026, she submitted a formal Statement of Religious Beliefs to Waverly School, laying out why her faith will not let her vaccinate C.F. any further. She grounds it in Scripture: 1 Corinthians 6:19-20 on the body as "a temple of the Holy Spirit," Romans 12:1 on offering the body as "a living sacrifice, holy and pleasing to God," and Leviticus 17:11 on the sacredness of blood. Her objection is specific, not general: she cites vaccines manufactured using cell lines derived from aborted fetal tissue and vaccines that combine human and animal biological material.
"The taking of an innocent human life is a grave sin. My Catholic beliefs have always held this," she wrote. Of the vaccines themselves: "Defiling the blood by mixing it with the blood of animals, with the remains of aborted human beings, or with foreign biological material, violates God's Word. Vaccination injects biological material derived from unclean sources directly into the bloodstream. My faith forbids this." She closes flatly: "I will not do it." No court in this case has found that belief insincere. Her lawyer, Patricia Finn, has pressed that point in every filing: the state never tried to argue otherwise, and the school district raised the question only in its brief to the Supreme Court.
Official record
Doe, Jane v. McDonald, Comm'r, et al., No. 26A239 (U.S., order of Sept. 8, 2026). Full order below; read the complete emergency application, the state's and school district's responses, and Doe's reply on the Supreme Court's public docket.
"The application for injunction pending appeal presented to Justice Sotomayor and by her referred to the Court is denied. Justice Alito and Justice Gorsuch would grant the application." — Order List: 609 U.S., Tuesday, September 8, 2026
Read or download the full order (PDF) on the Supreme Court's website.
Why Alito and Gorsuch Would Have Granted It
Doe's application did not ask the Court to strike down Section 2164 statewide. It asked for one child to keep his seat while the appeal plays out, and it leaned on two recent precedents to make the case. The first is Mirabelli v. Bonta, decided by the Supreme Court in March, which granted emergency relief to parents challenging a California school policy on Free Exercise grounds before any merits appeal had been decided. The second is Roman Catholic Diocese of Brooklyn v. Cuomo, the 2020 case in which the Court issued an emergency injunction to New York churches and synagogues fighting COVID-era attendance caps under the same kind of procedural posture Doe is in now: lower courts had already said no, and the underlying appeal was still pending.
Her filing put it directly: "The question whether Section 2164's categorical denial of religious accommodation survives this Court's intervening Free Exercise decisions is therefore one this Court has already found worthy of its attention." She even offered New York an out short of a full exemption, telling the Court she would accept C.F.'s treatment as a "susceptible student" who could still be excluded by the health commissioner if an actual measles outbreak occurred. The Court did not take her up on it. Two justices wanted to. Seven did not say why they didn't.
The Thurgood Marshall U.S. Courthouse in Manhattan, home of the Second Circuit, where Doe's underlying appeal (No. 26-1912) remains pending. (Photo: Mike Peel, mikepeel.net, via Wikimedia Commons, CC BY-SA 4.0)
New York's Answer: A Neutral Law, Not a Religious Test
New York's lawyers, led by Solicitor General Barbara Underwood, did not argue that Doe's faith was fake. They argued the law does not care what anyone believes. Under Employment Division v. Smith, the 1990 case that still governs most Free Exercise claims, a neutral law of general applicability only has to clear rational-basis review, not the much tougher strict scrutiny standard, even when it burdens religious practice. The state's brief called compulsory vaccination "a paradigmatic example" of exactly that kind of law, and pointed out that three other federal appeals courts have reached the same conclusion about vaccine mandates with only medical exemptions.
New York also argued the application might already be moot. Doe had told the lower courts she would need to "irrevocably commit" to relocating her family to Florida by August 20 if she lost, so C.F. could attend school where a religious exemption still exists. The state's brief noted that date had passed by the time it filed. Doe's reply pushed back: the real deadline was never her relocation plan, but the district's own written notice that C.F. must be vaccinated within fourteen days of the start of school or be excluded. School started September 2. Fourteen days later is September 16.
Five Days Left on the Clock
That deadline is not in dispute between the parties, only what it means. C.F. remains enrolled and remains unvaccinated for chickenpox and polio, according to the filings. His mother's underlying appeal keeps moving in the Second Circuit regardless of what happens at Waverly School this week, and a full merits ruling there, not this emergency order, is what would actually settle whether Section 2164 can keep denying a religious accommodation it grants no exemption for at all outside of medical necessity.
New York is one of only four states, alongside California, Connecticut and Maine, that allow solely medical exemptions from school vaccine rules, according to the state's own brief. Every other state still recognizes some form of religious exemption. New York leans hard on the public-health case for that: measles cases nationwide were already running ahead of last year's full-year total by early September, according to Medical Daily's review of CDC surveillance data. That case says nothing about why the state trusts a doctor's individualized judgment enough to grant an exemption, but treats a lifelong Catholic's sworn religious conviction as categorically unworthy of the same accommodation.
The Supreme Court has already shown it is willing to intervene fast, on an emergency docket, before any merits decision, when parents argue a school policy runs over their right to direct their children's religious upbringing. It did that in Roman Catholic Diocese. It did it again in Mirabelli five months ago. This time, with a five-year-old's classroom seat and a five-day-old deadline both on the table, it did not. Only two justices were willing to say why they would have.
