Mandatory vaccination rule for healthcare workers is facially neutral, does not single out religious objectors

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By Jeffrey H. Brochin, J.D.

The First Circuit has affirmed a district court’s order denying a preliminary injunction to several Maine healthcare workers and a healthcare provider who filed a lawsuit seeking to enjoin the State of Maine from enforcing its emergency vaccination rule. The rule mandates that all state healthcare workers be vaccinated against COVID-19, with the exception of those who are medically exempt from vaccination. The appellants are unvaccinated Maine healthcare workers (and a healthcare provider) who object to vaccination with any of the three available COVID-19 vaccines based on their religious beliefs that prohibit them from using the products. The appeals court rejected their Constitutional Free Exercise Clause, Supremacy Clause, and Title VII arguments, finding that the emergency rule is religiously neutral, and that the state has the authority to grant exemptions based on the underlying circumstances and compelling public interest in preventing the spread of a communicable disease (Does 1-6 v. Mills, October 19, 2021, Lynch, S.).

History of mandatory vaccinations. Maine has mandated that its healthcare workers be vaccinated against certain contagious diseases since 1989, but prior to 2019, state law exempted workers from vaccination in three circumstances: when vaccination was medically inadvisable, contrary to a sincere religious belief, or contrary to a sincere philosophical belief. However, in 2019, the state responded to declining vaccination rates by amending its law to allow for only the medical exemption.

On August 12, 2021, Maine’s Department of Health and Human Services (HHS) and its Center for Disease Control (CDC) issued an emergency rule adding COVID-19 to the list of diseases against which healthcare workers must be vaccinated. Pointing to a 300 percent increase in COVID-19 cases between June 19 and July 23 and the danger of the delta variant, the agencies determined that the rule was necessary because the presence of the highly contagious delta variant in Maine constituted an imminent threat to public health, safety, and welfare.

Claimed religious basis for exemption. The healthcare workers and provider who filed the lawsuit seeking a preliminary injunction against the emergency rule’s enforcement claimed that their objection to the vaccination was based on their religious beliefs, which prohibit them from using any product connected in any way with abortion. They argued that Johnson & Johnson/Janssen used cells ultimately derived from an aborted fetus to produce its vaccine, as did Moderna and Pfizer/BioNTech in researching their vaccines.

Accordingly, their religious beliefs prohibited them from being vaccinated, and to mandate vaccination pursuant to the emergency rule would violate their Free Exercise and Supremacy Clause rights, as well as violate Title VII’s civil rights protections. The district court disagreed, and denied their petition for preliminary injunction (see Preliminary injunction prohibiting Maine’s COVID-19 vaccine mandate for healthcare workers denied , October 18, 2021) and the instant appeal ensued.

Determining neutrality. The appeals court first examined the First Amendment’s Free Exercise Clause (as incorporated against the states by the Fourteenth Amendment) and observed that it protects religious liberty against government interference. When a religiously neutral and generally applicable law incidentally burdens free exercise rights, the law will be sustained against a Constitutional challenge if it is rationally related to a legitimate governmental interest.

When a law is not neutral or generally applicable, however, it may be sustained only if it is narrowly tailored to achieve a compelling governmental interest. Furthermore, to be neutral, a law may not single out religion or religious practices, and a government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature. To be generally applicable, a law may not selectively burden religiously motivated conduct while exempting comparable secularly motivated conduct.

Both neutral and generally applicable. Applying these Free Exercise Clause standards to the Maine emergency rule, the court found the rule to be facially neutral, and that no argument had been developed to the court that the state singled out religious objections to the vaccine because of their religious nature. The state legislature removed both religious and philosophical exemptions from mandatory vaccination requirements, and thereby did not single out religion alone.

The court also found that the rule was generally applicable because it applied equally across the board, not requiring the state government to exercise discretion in evaluating individual requests for exemptions. Nor did it permit secular conduct that undermined the government’s asserted interests in a similar way.

Medical exemption validity. The court concluded that exempting from vaccination only those whose health would be endangered did not undermine Maine’s asserted interests of: (1) ensuring that healthcare workers remain healthy and able to provide the needed care to an overburdened healthcare system; (2) protecting the health of the those in the state most vulnerable to the virus, including those who are vulnerable to it because they cannot be vaccinated for medical reasons; and (3) protecting the health and safety of all Maine residents, patients, and healthcare workers alike.

Based on the foregoing, the appeals court affirmed the district court’s order denying the requested preliminary injunction against the emergency rule.

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