For the second time, the U.S. Supreme Court has rejected an emergency appeal from health care workers in Maine to block the vaccine mandate that went into effect Friday.
The state does not allow hospital and nursing home workers to opt out of COVID-19 shots for religious reasons. Nine unnamed workers sued the state in August to demand such an exemption, and the case quickly moved up to the nation’s top court.
The decision on Friday was not unanimous, and three conservative justices wrote a lengthy dissent that took the side of the plaintiffs. But the mandate cleared a significant legal hurdle.
“This rule protects health care workers, their patients and the stability of our health care system in the face of this dangerous virus,” Gov. Janet Mills said in a statement Friday night. “Just as vaccination defeated smallpox and vaccination defeated polio, vaccination is the way to defeat COVID-19.”
The health care workers, who are represented by the conservative group Liberty Counsel, will still try to get the Supreme Court to hear the underlying case.
“This case is far from over,” Mat Staver, the founder and chairman of Liberty Counsel, said in a news release. “We will file a petition with the Supreme Court to review the merits of the case after full briefing and argument. The High Court’s decision to not grant the emergency relief is not a ruling on the merits.”
Their appeal is the first challenge to a statewide mandate that has reached the Supreme Court. The justices previously turned away students at Indiana University and teachers in New York City who objected to being vaccinated. Both the university and city allow people to seek religious exemptions.
Only New York and Rhode Island also have vaccine mandates for health care workers that lack religious exemptions. Both are the subject of legal fights and a court has allowed workers in New York to seek religious exemptions while the lawsuit plays out.
In Maine, the case has tested the state law that repealed religious or philosophical exemptions for required inoculations for students and health care workers. This year, Mills added the COVID-19 vaccine to those already required for health care workers, which include shots against chicken pox and the common flu. Only medical exemptions are allowed.
The governor’s office has estimated that her mandate will apply to more than 150,000 workers at hospitals, clinics, group and nursing homes, dental offices, EMS agencies and other state-licensed health care facilities.
PRECEDENCE DATES TO 1905
Vaccine mandates have long been accepted under the law. In 1905, the Supreme Court upheld a Massachusetts law that allowed cities to require people to get smallpox vaccinations and fine those who did not.
For years, experts said religious exemptions to vaccine mandates have been allowed allowed but not constitutionally required. That precedent came from 1990, when the Supreme Court upheld Oregon’s ban on peyote, even in Native American religious rituals. The court said then that the state’s general ban did not violate the U.S. Constitution because it did not specifically target religion. But some conservatives on the Supreme Court have recently criticized that opinion and signaled a greater sympathy toward religious liberty arguments.
In Maine, the plaintiffs argued that the state needs to offer a religious exemption to the COVID-19 vaccine because it offers a medical one. The rule treats people who seek a religious exemption less favorably, they said, and therefore violates their right to freely practice their religion. They said their objections are rooted in a rejection of any medicine or procedure developed with or aided by the use of fetal tissue.
The Maine Attorney General’s Office argued that the two types of exemptions aren’t comparable and shouldn’t be viewed in the same way under the law. Maine stopped accepting religious and philosophical exemptions to all mandatory vaccines in order to protect people who could not get those shots because of their medical conditions. The state argued that the same reasoning applies during the COVID-19 pandemic.
U.S. District Judge Jon Levy agreed with the state and denied a motion for a preliminary injunction.
“Reducing the risk of adverse medical consequences for a high-risk segment of the population is essential to achieving the public health objective of the vaccine mandate,” he wrote in his Oct. 13 opinion. “A religious exemption would not address a risk associated with the vaccine mandate’s central objectives.”
A unanimous panel of three judges on the 1st U.S. Circuit Court of Appeals affirmed that decision last week.
“Few interests are more compelling than protecting public health against a deadly virus,” U.S. Circuit Judge Sandra Lynch wrote in the Oct. 20 opinion.
SUPPORT AND DISSENT
At every stage, the plaintiffs have asked the courts to block the mandate on an emergency basis while they consider the underlying arguments. Friday’s decision marks the second time the Supreme Court has said no. As is typical in emergency appeals, the court did not explain its decision.
Justice Amy Coney Barrett wrote a short paragraph in support, and Justice Brett Kavanaugh joined her. They said they considered whether the case would succeed on its merits and whether the Supreme Court should actually agree to hear the underlying appeal.
“Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument,” Barrett wrote. “In my view, this discretionary consideration counsels against a grant of extraordinary relief in this case, which is the first to address the questions presented.”
But Justice Neil Gorsuch wrote an eight-page dissent that also was signed by Justices Clarence Thomas and Samuel Alito. Gorsuch suggested the medical exemption offered in Maine was too broad and created a double standard. He also said those health care workers who invoke the medical exemption are allowed to take alternative measures to protect themselves, like wearing protective gear, but people who want to refuse the shot for religious reasons do not have the same options.
“This case presents an important constitutional question, a serious error, and an irreparable injury,” Gorsuch wrote. “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.”
Liberty Counsel repeatedly cited that dissent in a news release about the group’s next steps.
“While we should ultimately prevail on the merits, the tragedy is that today many health care heroes are being terminated,” Staver said. “Since 2019, Maine has suffered from a shortage of health care workers and that shortage will increase as of today. The people who will suffer are not only the health care workers but patients who need care.”
COMPLIANCE ON THE RISE
Most health care workers have complied with the mandate. The state said vaccine rates jumped significantly in September as the deadline approached, and more than 91 percent of hospital workers were vaccinated at that time.
Earlier this month, Central Maine Health Care asked the governor’s office to allow for weekly or more frequent testing as an alternative to vaccinations to avoid cutbacks in neonatal intensive care, trauma and pediatric services. Central Maine Healthcare President and CEO Steve Littleson, who noted that he is in favor of the vaccines, said that 230 or more workers out of the company’s 3,000 affected employees could resign or be fired rather than get vaccinated.
But this week, officials at Maine Medical Center in Portland said the mandate is not the cause of workforce shortages and delays in elective surgeries. CEO Dr. Andrew Mueller anticipated that about 1.5 to 2 percent of MaineHealth’s workforce of 23,000 – about 350 to 450 employees – will resign or be fired because of the mandate. But he also said it is protecting employees from the virus and preventing them from missing work because they are sick.
And a survey released last week revealed that 96.9 percent of emergency medical service licensees had been vaccinated against COVID-19 as of the middle of October.
On Friday, Maine Attorney General Aaron Frey encouraged all eligible Mainers who have not done so to get vaccinated.
“The Supreme Court’s action today means that the 1st Circuit’s decision, which upheld Maine’s rule requiring certain healthcare facilities to ensure their employees are vaccinated against COVID-19, will stand,” Frey said. “The 1st Circuit held that this reasonable requirement does not violate the First Amendment’s Free Exercise clause. The requirement is constitutional.”