Feb. 22—The U.S. Supreme Court has yet again refused to consider a lawsuit that challenges Maine's COVID-19 vaccine mandate for health care workers.
On Tuesday, the justices denied the latest petition in the case, a decision that deals another blow to the plaintiffs but does not end the ongoing legal battle. As is typical, the court did not offer an explanation.
The mandate took effect in October, and major health care providers reported at the time that most workers decided to get their shots and keep their jobs. This case is different from the ongoing legal battle over the federal vaccine mandate for employees at private companies, in part because it focuses specifically on religious exemptions to such rules. Maine did not allow hospital and nursing home workers to forgo the shots for religious reasons, and nine unnamed workers sued the state in August to demand that option. Their complaint set off a flurry of motions, orders and appeals.
Federal judges at every level — the U.S. District Court of Maine, the 1st U.S. Circuit Court of Appeals in Boston and then the U.S. Supreme Court — refused to block the mandate from taking effect while the courts considered the merits of the lawsuit. Liberty Counsel, a conservative group that represents the plaintiffs, then filed a petition for a writ of certiorari, asking for full briefing and oral argument. The Supreme Court denied that petition Tuesday.
Maine Attorney General Aaron Frey said the state will continue to defend the mandate in court.
"The Supreme Court has once again declined to review the lower court rulings upholding Maine's COVID-19 vaccination requirement for health care workers," Frey said in a written statement. "Maine's vaccination rule is constitutional and remains in place. We will continue to defend the rule, which is critical for the protection of patients, health care workers and Maine's healthcare system against COVID-19."
Mat Staver, the founder and chairman of Liberty Counsel, said he was disappointed and surprised by the court's decision.
"There can be no dispute that Maine is required to abide by the U.S. Constitution and federal law that provides protections to employers and employees who have sincerely held religious objections to the COVID-19 shots," Staver said in a news release. "The Supreme Court should have righted this blatant unconstitutional edict. The Supreme Court has allowed these health care workers to become constitutional orphans in their own state."
Vaccine mandates have long been accepted under the law, and experts said religious exemptions have been allowed but not constitutionally required. Some conservatives on the Supreme Court, however, have signaled a greater sympathy toward religious liberty arguments.
This lawsuit has been a critical test of a state law that repealed religious and 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. In 2021, Mills added the COVID-19 vaccine to those already required for health care workers, which include shots against chicken pox and the common flu.
The plaintiffs argued that Maine needs to offer a religious exemption to the COVID-19 vaccine because it offers a medical one. They said the rule treats people who seek a religious exemption less favorably and therefore interferes with the free practice of their religion. They also 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 last year 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 as well.
"Few interests are more compelling than protecting public health against a deadly virus," U.S. Circuit Judge Sandra Lynch wrote Oct. 19.
The Supreme Court then rejected two separate emergency applications for injunctive relief last year. By doing so, they allowed the mandate to take effect in October without religious exemptions and refused to intervene outside their usual process for briefs and oral arguments. The court did not explain its reasoning, but some justices signaled their individual thinking. In a short paragraph supporting the second of those decisions, Justice Amy Coney Barrett suggested the court would not agree to hear the underlying case. Justice Brett Kavanaugh joined her position.
"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 Oct. 29. "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.
"Where many other states have adopted religious exemptions, Maine has charted a different course," Gorsuch wrote. "There, health care 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 then filed the formal petition for oral argument on the motion for a preliminary injunction. The court held a confidential conference last week and then included this case on a list of similar denials Tuesday.
Even though the courts have refused to grant the motion for a preliminary injunction or take other emergency measures to block the mandate, the complaint itself is still pending at the lower court.
State officials and local hospital networks, named as defendants, have filed a motion to dismiss it. The Portland Press Herald/Maine Sunday Telegram, Kennebec Journal, Morning Sentinel and Sun Journal also have filed a motion to unseal the names of the plaintiffs.
Staver said Liberty Counsel will oppose both motions and continue to fight the case.
"This case could easily go back to the Supreme Court again once the lower court rules on the outstanding motions," he said.