Federal court deals another blow to Maine workers challenging vaccine mandate

Oct. 20—A federal appeals court has agreed that Maine does not need to allow health care workers to opt out of its COVID-19 vaccine requirement for religious reasons, a decision that will yet again send the question to the U.S. Supreme Court.

Nine unnamed workers sued the state in August to demand such an exemption. Federal judges at every level, including the U.S. Supreme Court, have so far declined to block the mandate on an emergency basis while that legal challenge proceeds.

The 1st U.S. Circuit Court of Appeals dealt another blow to the plaintiff Tuesday evening by affirming a lower court's denial of a motion for a preliminary injunction.

"Few interests are more compelling than protecting public health against a deadly virus," U.S. Circuit Judge Sandra Lynch wrote in the unanimous opinion. "In promulgating the rule at issue here, Maine has acted in response to this virus to protect its healthcare system by meeting its three goals of preventing the overwhelming of its healthcare system, protecting those most vulnerable to the virus and to an overwhelmed healthcare system, and protecting the health of all Maine residents."

Health care workers needed to get their shots by Friday to be in compliance with the rule by the end of October, when Gov. Janet Mills has said she will start enforcing the mandate. A person who gets the Johnson & Johnson shot is fully vaccinated two weeks later.

In Maine, the governor's office has estimated that the 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. The state published data last week that showed COVID-19 vaccination rates increased in September among Maine health care workers, surpassing 91 percent in hospitals and 85 percent in nursing homes.

The case tests the state law that repealed religious or philosophical exemptions for required inoculations for students and health care workers. 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. 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.

If the case does return to the Supreme Court, those interested in the conservative shift on the bench will be watching it closely. The justices have recently signaled a greater sympathy to religious liberty arguments like the one made in this lawsuit.

Liberty Counsel, the conservative group that represents the plaintiffs, says the health care workers' objections are rooted in scripture and in a rejection of any medicine or procedure developed with or aided by the use of fetal tissue. They argued that Maine needs to offer a religious exemption 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.

The state 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 Attorney General's Office said that reasoning still applies during the COVID-19 pandemic.

So far, the courts have agreed with the state.

The plaintiffs filed their lawsuit in the U.S. District Court of Maine in August. Last week, a judge there denied the motion for a preliminary injunction, which sought to prevent the governor from enforcing the mandate while the legal challenge was underway.

Liberty Counsel appealed that decision to the 1st Circuit. The plaintiffs also requested an injunction to stop the mandate while the appeal was pending, a request the 1st Circuit denied. So Liberty Counsel asked the Supreme Court to take that emergency step, and on Tuesday, Associate Justice Stephen Breyer denied their application.

However, Breyer said the plaintiffs could try to get the Supreme Court to take the case again once the 1st Circuit ruled on the underlying appeal. The 1st Circuit did so on Tuesday evening, just hours after Breyer issued his denial. The plaintiffs have signaled that they will again ask the Supreme Court to intervene.