Portland Press Herald, Maine
A federal judge soon will decide whether health care workers should be able to opt out of Maine’s COVID-19 vaccine mandate for religious reasons.
Nine unnamed workers sued the state to demand such an exemption, which is not currently allowed. Their lawsuit could take on broader significance in light of a conservative shift on the U.S. Supreme Court. On Monday, U.S. District Judge Jon Levy asked both sides how he should look at Maine’s rule in light of recent opinions that signal a greater sympathy to religious liberty arguments.
“A key question here … is whether the rule treats a secular activity more favorably than a comparable activity rooted in the free exercise of religion,” Levy said.
The case also could test the state law that no longer allows religious or philosophical exemptions for other required inoculations. Gov. Janet Mills added the COVID-19 vaccine to those already required by health care workers, including shots against chicken pox and the common flu. The Legislature decided in 2019 that only medical exemptions would be allowed for those shots, and that change survived a referendum challenge the following year.
At one point, Levy raised the potential impact a ruling in the plaintiffs’ favor would have on the statute.
“Does that mean that the underlying statute enacted in 2019 generally violates the First Amendment because it doesn’t authorize the Department of Health and Human Services to permit religious exemptions from every compulsory vaccine?” Levy asked. “Is that the outcome of this case?”
Other states, including California and New York, are requiring some or all health care workers to get inoculated against COVID-19. The Biden administration also has announced a sweeping vaccine mandate that is sure to face legal challenges. But policies and exemptions vary across the country.
In Maine, the governor’s office has estimated that the rule 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. The mandate takes effect Oct. 1, but Mills has said she will not enforce it until Oct. 29 to give people more time to comply.
The plaintiffs who challenged that requirement are seeking class-action status, and they are represented by Liberty Counsel, a conservative group based in Florida. Their attorneys wrote that their clients are health care workers who have objections rooted in scripture and in the broad principal of rejecting any medicine or procedure developed with or aided by the use of fetal tissue. They filed a motion for a preliminary injunction, which asks the judge to temporarily block the mandate, and Levy held the hearing Monday on that motion. He did not say when he would issue an order but promised he would try to do so before the requirement takes effect.
Vaccine mandates have long been allowed 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.
Experts said the consensus has generally been that religious exemptions to vaccine mandates are allowed but not constitutionally required. That precedent came from a 1990 ruling that upheld Oregon’s ban on peyote, even in Native American religious rituals. The Supreme Court said then that the state’s general ban did not violate the U.S. Constitution because it did not specifically target religion, and that concept has carried through the years since.
In April, however, the Supreme Court blocked a California rule that restricted at-home gatherings during the pandemic, which had curtailed Bible study and prayer meetings. If the state makes exceptions to the rule for secular activities, the court said, it also has to make exceptions for comparable religious ones. Then, in June, the court said Philadelphia could not refuse to use Catholic Social Services as a foster care provider after the group refused to accept same-sex couples as foster parents. The justices kept their opinion narrow, but three conservatives said they wanted to go further and overturn that 1990 precedent.
So a key question for Levy is whether those rulings mean the state has to add a religious exemption because it allows a medical one.
“I would ask you this,” Levy said to the attorneys. “Why should I conclude that an exemption from a mandatory vaccination for medical reasons is fairly and rationally viewed as comparable to an exemption for religious reasons?”
Attorney Daniel Schmid from Liberty Counsel argued that this rule singles out people who want religious exemptions and treats them less favorably than those who need medical ones. Other states have allowed people to claim religious exemptions and submit to regular COVID-19 testing, and he argued Maine hasn’t done enough to find similar alternatives.
“The government has not come forward with any demonstrable proof as to why that can’t work here as well,” he said.
Assistant Attorney General Kimberly Patwardhan argued the two exemptions aren’t comparable and shouldn’t be viewed in the same way. She said the state removed religious and philosophical exemptions to vaccine requirements in order to protect people who could not get those same shots for medical reasons, and the same thinking applies in the governor’s mandate.
“Providing a medical exemption serves the state’s interest in protecting those individuals, while a religious exemption does not,” she said.
Also named as defendants are health care providers Maine Health, Genesis Healthcare, Northern Light Health Foundation and Maine General Health.
The Mills administration is facing another lawsuit in state court over the vaccine mandate. In that case, the plaintiffs claim the rule is unconstitutional and that the Maine Department of Health and Human Services failed to follow proper procedures when adopting the emergency rules. That case is pending.
Mills has faced other federal lawsuits that challenged her executive orders on pandemic restrictions, but judges quickly rejected those complaints and sided with the governor.
A group of business owners sued over the governor’s restrictions on their operations last year. A federal judge granted the state’s motion to dismiss that case, and the plaintiffs filed and then withdrew an appeal to the 1st U.S. Circuit Court of Appeals in Boston.
The owners of two campgrounds and two restaurants sued Mills over a 14-day quarantine for most out-of-state visitors, which is no longer in place. A federal judge denied a motion for a preliminary injunction, and the 1st Circuit later affirmed that decision. The plaintiffs then dismissed the case.
And an Orrington church filed a lawsuit to challenge a ban at the time on gatherings of more than 10 people. A judge similarly denied a motion for a preliminary injunction, and the appeals court again supported that ruling. Then the judge granted a motion to dismiss the case entirely, and an appeal is still pending at the 1st Circuit.
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