The Volokh Conspiracy
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Court Refuses to Block Maine Rule Categorically Denying Religious Exemptions from Healthcare Workers COVID Immunization Mandate
From Jane Does 1-6 v. Mills, decided yesterday by Chief Judge Jon Levy (D. Me.), upholding Maine's COVID vaccine mandate for healthcare workers, which lacks a religious exemption (compare the different result in Dr. A. v. Hochul in New York on Tuesday; I find this Maine court decision to be more persuasive than the New York one):
The Plaintiffs object to receiving the COVID-19 vaccines based on their stated belief that "life is sacred from the moment of conception[.]" They contend that the development of the three COVID-19 vaccines employed or benefitted from the cell lines of aborted fetuses. Specifically, the Plaintiffs object to the Moderna and Pfizer vaccines because both are mRNA vaccines which, the Plaintiffs claim, "have their origins in research on aborted fetal cells lines." Plaintiffs also object to the J&J vaccine, asserting that aborted fetal cell lines were used in both its development and production. They allege that the use of fetal cell lines to develop the vaccines runs counter to their sincerely held religious beliefs that cause them to oppose abortion.
In their responses to the Plaintiffs' motion seeking preliminary injunctive relief, the Defendants have not challenged the sincerity of the Plaintiffs' asserted religious beliefs or that those beliefs are the reason for the Plaintiffs' refusal to be vaccinated. I therefore treat these facts as established for purposes of deciding the Preliminary Injunction Motion.
The Court held that the law was a religion-neutral, generally applicable requirement and thus not subject to strict scrutiny under the Free Exercise Clause:
[T]he COVID-19 vaccine mandate challenged here is facially neutral. Neither the applicable statute nor the Rule mention religion, even by implication. Operating in tandem, they require that all healthcare workers employed at designated healthcare facilities receive the COVID-19 vaccination. They do not treat the COVID-19 vaccine differently than any other vaccinations mandated under Maine law….
The Plaintiffs contend that the COVID-19 vaccine mandate is not neutral because the removal of the religious exemption from the Rule "specifically target[ed] Plaintiffs' religious beliefs for disparate and discriminatory treatment." They assert that "Maine has plainly singled out religious employees who decline vaccination for especially harsh treatment (i.e., depriving them from earning a living anywhere in the State), while favoring employees declining vaccination for secular, medical reasons."
This argument mirrors claims made recently by healthcare providers challenging New York's COVID-19 vaccine mandate, which also did not provide for religious exemptions. Dr. A. v. Hochul (N.D.N.Y. Oct. 12, 2021). However, the challenged New York regulation is distinguishable from Maine's COVID-19 vaccine mandate, because the New York regulation originally provided for a religious exemption which was then removed only a few days before the requirement became effective; additionally, New York provides religious exemptions to other mandated vaccinations for healthcare workers. For these reasons, the court determined that the intentional, last-minute change to the language in the New York regulation was a "religious gerrymander" that required strict scrutiny.
In contrast, the Maine Legislature removed the religious exemption as to all mandated vaccines by amending 22 M.R.S.A. § 802(4-B) in 2019. Following the unsuccessful People's Veto held in 2020, DHHS removed the religious exemption from the Rule in April 2021 to conform the Rule to the 2019 statutory change. This revision pre-dated the COVID-19 vaccine requirement and served to ensure that the Rule was consistent with Maine law. The history associated with the revision of the Rule does not demonstrate animus toward religion….
In Tandon v. Newsom (2021), the Supreme Court granted injunctive relief against enforcement of a California regulation that prohibited indoor private gatherings of more than three households during the COVID-19 pandemic. The prohibition had the effect of restricting at-home religious gatherings while allowing groups of more than three households to gather in public settings, such as hair salons, retail stores, and restaurants. In enjoining the regulation's enforcement, the Court explained that "government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise."
"[W]hether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue." "Comparability is concerned with the risks various activities pose, not the reasons" motivating the activities. The Court's majority concluded that private indoor gatherings of three or more households were comparable to groups of the same or a greater number of households in public businesses, which were not prohibited by the regulation, and granted an injunction against the policy's enforcement pending appellate review.
Citing Tandon, the Plaintiffs argue that the Free Exercise Clause prohibits the treatment of "any secular activity more favorably than religious activity" (emphasis in original). This misstates Tandon's holding because it omits the crucial modifier—"comparable"—from the analysis of whether a secular activity has been treated more favorably than a religious activity.
In the unique context of a vaccine mandate intended to protect public health, there is a fundamental difference between a medical exemption—which is integral to achieving the public health aims of the mandate—and exemptions based on religious or philosophical objections—which are unrelated to the mandate's public health goals. The risks associated with the two are not comparable. 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. A religious exemption would not address a risk associated with the vaccine mandate's central objectives. Under Tandon's reasoning, rational basis review applies.
Tandon is distinguishable from this case in another respect. The vaccination requirement challenged here does not prevent the Plaintiffs from exercising their religious beliefs by refusing to receive the COVID-19 vaccination. In contrast, in Tandon interference with the free exercise of religion was direct because the statute prevented like-minded persons from gathering together to perform religious rituals. Here, the Rule does not compel the Plaintiffs to be vaccinated against their will, and the Plaintiffs have, in fact, freely exercised their religious beliefs by declining to be vaccinated. This is not to minimize the seriousness of the indirect consequences of the Plaintiffs' refusal to be vaccinated, as it affects their employment. Nonetheless, the Rule has not prevented the Plaintiffs from staying true to their professed religious beliefs….
Additionally, in probing for covert animus, what matters is the State's motive in removing the vaccine exceptions for religion and philosophy from the statute in 2019 because it was then—not in 2021 as Plaintiffs assert—that the change took effect. The Plaintiffs have not offered any reasoned explanation as to why Maine's COVID-19 vaccine mandate for healthcare workers should be viewed as targeting religious beliefs while vaccines for other communicable diseases that may have involved fetal cell lines in their development or production should not. The record establishes that the Maine Legislature's object in eliminating the religious and philosophical exemptions in 2019 was to further crucial public health goals, and nothing more.
Specifically, the Legislature considered data establishing that it was the religious and philosophical exemptions to mandatory vaccines that had prevented Maine from achieving herd immunity as to several infectious diseases, which is a prerequisite to eliminating those diseases. Measles, for example, requires a 95% population-level vaccination rate, and this was undermined in the years prior to 2019 by the large percentage of unvaccinated persons resulting from the religious and philosophical exemptions…. "… The average philosophical and religious exemption rate for kindergarten-aged students in Hancock County, ME was 8.7 percent…. There are schools [in Hancock County] experiencing non-medical exemption rates as high as 33.3 percent." … "[N]on-medical exemptions, which include religious and philosophical reasons, were reported at 5.0% for Maine, compared to the national rate of 2.0%." Medical exemptions, in contrast, accounted for 0.3% of the overall exemption rate….
The medical exemption at issue here was adopted to protect persons whose health may be jeopardized by receiving a COVID-19 vaccination. The exemption is rightly viewed as an essential facet of the vaccine's core purpose of protecting the health of patients and healthcare workers, including those who, for bona fide medical reasons, cannot be safely vaccinated. Because the medical exemption serves the core purpose of the COVID-19 vaccine mandate, it does not reflect a value judgment prioritizing a purely secular interest—such as the uniformity of appearance of uniformed officers considered in Fraternal Order of Police—over religious interests. In addition, the vaccine mandate places an equal burden on all secular beliefs unrelated to protecting public health—for example, philosophical or politically-based objections to state-mandated vaccination requirements—to the same extent that it burdens religious beliefs.
The medical exemption applicable to the COVID-19 vaccine and the other vaccines required under Maine law does not reflect a value judgment unfairly favoring secular interests over religious interests. As an integral part of the vaccine requirement itself, the medical exemption for healthcare workers does not undermine the vaccine mandate's general applicability….
The court also concluded that, even if the mandate were judged under strict scrutiny, it would pass:
Curbing the spread of COVID-19 is "unquestionably a compelling interest." … The record establishes that "[t]he gold standard to prevent and stop the spread of communicable diseases, including COVID-19, is vaccination." High vaccination rates minimize the number of unvaccinated individuals in group settings—such as healthcare environments—which ultimately facilitates population-level immunity and prevents outbreaks of these diseases both within these settings and in the general population. Achieving the high levels of vaccination needed to establish population-level immunity is crucial to protect the health of the most vulnerable individuals, including "individuals with weakened immune systems, infants too young to be vaccinated, and persons unable to be vaccinated [for medical reasons]." …
The Plaintiffs' sole challenge to the scientific rationale put forward by the State Defendants for the vaccine mandate is based on the Plaintiffs' citation to an article published in National Geographic Magazine that reports on a preliminary study that found that vaccinated persons with breakthrough COVID-19 infections can transmit the virus. This preliminary finding, however, does not address the broader question of whether COVID-19 vaccinations reduce the risk of people spreading the virus that causes COVID-19….
Plaintiffs further contend that the COVID-19 vaccine mandate is not the least restrictive means of achieving the State's goal to protect public health and the healthcare system from communicable disease. They argue that there are alternatives to vaccination that would not restrict their religious beliefs, and that Maine has not demonstrated that these alternatives would not achieve the objectives of the Rule. Plaintiffs specifically point to the use of PPE [personal protective equipment, such as masks] and frequent testing as less restrictive tactics that Maine could employ.
The record demonstrates that PPE and regular testing are not sufficient to achieve Maine's compelling interest in stopping the spread of COVID-19. Regular testing, an alternative method proposed by the Plaintiffs, was considered and ultimately rejected because "regular testing for the presence of the virus in employees is insufficient to protect against the Delta variant." The speed of the Delta variant's transmission outpaces test-result availability. With weekly or twice-weekly testing, "[a]n employee who tests negative on a Monday morning could be exposed that afternoon, and, within 36 hours, could be spreading the virus to others over the course of the several days until the next test." Further, "[b]ecause test results are not available for at least 24 hours, and sometimes up to 72 hours, daily PCR testing is insufficient for the same reasons." Daily testing, therefore, would require the use of rapid antigen tests, which are both less accurate and in short supply. Accordingly, regular testing is not an alternative measure that would effectively serve to stop the spread of COVID-19.
The use of PPE is also not an equivalent alternative measure. PPE is an important measure to prevent the spread of transmissible diseases, including COVID-19, but "it does not eliminate the possibility of spreading COVID-19, especially in healthcare settings." …
Next, Plaintiffs argue that Maine currently stands alone in the nation by not providing religious exemptions to vaccine mandates for healthcare workers, which necessarily demonstrates that less restrictive alternatives are available. The Plaintiffs reason that if every other state has been able to offer religious exemptions to COVID-19 mandates, Maine should as well. However, the Plaintiffs have not provided any scientific or expert evidence demonstrating the efficacy of the approaches adopted in other states. Maine may be one of the first states to conclude that it is wise to mandate vaccinations for certain healthcare workers, but it does not follow that other, less demanding approaches are equally effective or even appropriate given the circumstances presented in this state….
{At least two other states have adopted COVID-19 vaccine mandates which do not provide religious exemptions. In August 2021, the State of New York mandated COVID-19 vaccinations for healthcare workers in the state and did not include a religious exemption within the mandate. A preliminary injunction against the requirement was granted on October 12, 2021, Dr. A. v. Hochul; as previously discussed, this case is distinguishable from Maine's vaccine mandate. Rhode Island has also mandated COVID-19 vaccinations for healthcare workers and did not provide for religious exemptions to that requirement; a temporary injunction was denied on September 30, 2021.}
And the court rejected the claim that the Maine mandated violated the Title VII employer duty of reasonable accommodation of religious objectors:
Title VII requires that employers "offer a reasonable accommodation to resolve a conflict between an employee's sincerely held religious belief and a condition of employment, unless such an accommodation would create an undue hardship for the employer's business." … At the time of filing, Plaintiffs had not exhausted the administrative remedies available to them for their claim of unlawful employment discrimination, such as pursuing a complaint with the Maine Human Rights Commission or Equal Employment Opportunity Commission.
The Supreme Court has "set a high standard for obtaining preliminary injunctions restraining termination of employment." The case must present a "genuinely extraordinary situation" to support granting an injunction; allegations of "humiliation, damage to reputation, and loss of income" are insufficient to meet that standard, as are "deterioration in skills" and "inability to find another job." Courts generally do not grant preliminary injunctions to prevent termination of employment, because "the termination … of employment typically [is] not found to result in irreparable injury." Injuries incurred in employment discrimination claims may be addressed through remedies at law, such as reinstatement, back pay, and damages. In addition, in the ordinary course, Title VII violations must be addressed first through the administrative processes available under federal law.
The Plaintiffs have not shown that the injuries they have suffered or may suffer—the loss of their employment and economic harm—meet the high standard for preliminary injunctive relief required to restrain an employer from terminating an employee's employment…
