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Religion and the Law

First Circuit Rejects Challenge to Religious-Exemption-Less Vaccination Mandate for Healthcare Workers

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From Does 1-6 v. Mills, decided yesterday by the First Circuit (Judge Sandra Lynch, joined by Judges Jeffrey Howard & David Barron); seems quite right to me:

When a religiously neutral and generally applicable law incidentally burdens free exercise rights, we will sustain the law against constitutional challenge if it is rationally related to a legitimate governmental interest. When a law is not neutral or generally applicable, however, we may sustain it only if it is narrowly tailored to achieve a compelling governmental interest.

To be neutral, a law may not single out religion or religious practices…. To be generally applicable, a law may not selectively burden religiously motivated conduct while exempting comparable secularly motivated conduct. "A law is not generally applicable if it 'invite[s]' the government to consider the particular reasons for a person's conduct by providing 'a mechanism for individualized exemptions.'" Under that rule, if a state reserves the authority to "grant exemptions based on the circumstances underlying each application," it must provide a compelling reason to exclude "religious hardship" from its scheme. Nor is a law generally applicable "if it prohibits religious conduct while permitting secular conduct that undermines the government's asserted interests in a similar way." …

[The healthcare worker vaccination mandate] is facially neutral, and no argument has been developed to us 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 thus did not single out religion alone.

The rule is also generally applicable. It applies equally across the board. The emergency rule does not require the state government to exercise discretion in evaluating individual requests for exemptions. Unlike, for example, Sherbert v. Verner (1963), in which the government had discretion to decide whether "good cause" existed to excuse the requirement of an unemployment benefits scheme, here there is no "mechanism for individualized exemptions" of the kind at issue in Fulton. Instead, there is a generalized "medical exemption … available to an employee who provides a written statement from a licensed physician, nurse practitioner or physician assistant that, in the physician's, nurse practitioner's or physician assistant's professional judgment, immunization against one or more diseases may be medically inadvisable." No case in this circuit and no case of the Supreme Court holds that a single objective exemption renders a rule not generally applicable.

The rule is also generally applicable because it does not permit "secular conduct that undermines the government's asserted interests in a similar way." We conclude that exempting from vaccination only those whose health would be endangered by vaccination does not undermine Maine's asserted interests here: (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 Mainers, patients and healthcare workers alike. Maine's three interests are mutually reinforcing. It must keep its healthcare facilities staffed in order to treat patients, whether they suffer from COVID-19 or any other medical condition. To accomplish its three articulated goals, Maine has decided to require all healthcare workers who can be vaccinated safely to be vaccinated.

Providing a medical exemption does not undermine any of Maine's three goals, let alone in a manner similar to the way permitting an exemption for religious objectors would. Rather, providing healthcare workers with medically contraindicated vaccines would threaten the health of those workers and thus compromise both their own health and their ability to provide care.

The medical exemption is meaningfully different from exemptions to other COVID-19-related restrictions that the Supreme Court has considered. In those cases, the Supreme Court addressed whether a state could prohibit religious gatherings while allowing secular activities involving everyday commerce and entertainment and it concluded that those activities posed a similar risk to physical health (by risking spread of the virus) as the prohibited religious activities. See, e.g., Tandon (rejecting the California order that restricted worship but permitted larger groups to gather in "hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants"); Roman Cath. Diocese of Brooklyn v. Cuomo (2020) (rejecting the New York order that restricted worship but permitted larger groups to gather at "acupuncture facilities, camp grounds, garages, as well as many [businesses] whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities"). In contrast to those cases, Maine CDC's rule offers only one exemption, and that is because the rule itself poses a physical health risk {[that] can be serious and even life threatening} to some who are subject to it. Thus, carving out an exception for those people to whom that physical health risk applies furthers Maine's asserted interests in a way that carving out an exemption for religious objectors would not….

Strict scrutiny does not apply here. But even if it did, the plaintiffs still have no likelihood of success….

We begin by asking "not whether the [state] has a compelling interest in enforcing its [rule] generally, but whether it has such an interest in denying an exception" to plaintiffs. If any healthcare workers providing such services, including the plaintiffs, were exempted from the policy for non-health-related reasons, the most vulnerable Mainers would be threatened.

Maine also reasonably used all the [alternative] tools available to fight contagious diseases. Its rule, thus, does not fail narrow tailoring…. There are … treatments that can be administered to infected patients once they have contracted the disease. Because those treatments do not prevent infections, Maine established in the record that reliance on such treatment options would not meet its goals….

[Other] measures like testing, masking, and social distancing … proved to be ineffective in meeting Maine's goals. As to testing, Maine CDC concluded that regular testing cannot prevent transmission given how quickly an infected person can transmit the delta variant and how long accurate testing takes. And Maine experienced multiple COVID-19 outbreaks in healthcare facilities adhering to mandatory masking and distancing rules. Thus, Maine has shown that non-pharmaceutical interventions are inadequate to meet its goals.

Maine has demonstrated that it has tried many alternatives to get its healthcare workers vaccinated short of a mandate. These include vaccine prioritization, worksite vaccine administration, and prizes for vaccination. But both its healthcare-worker-focused efforts and general incentives have failed to achieve the at least 90% vaccination rate required to halt community transmission of the delta variant. Maine has no alternative to meet its goal other than mandating healthcare workers to be vaccinated….

[And] the rule is [not] either under- or overinclusive…. The regulation applies to all healthcare workers for whom a vaccine is not medically contraindicated. Indeed, eliminating the only exemption would likely be unconstitutional itself. See Jacobson v. Massachusetts (1905). Nor is the regulation overinclusive. It does not extend beyond the narrow sphere of healthcare workers, limiting the universe of people covered to those who regularly enter healthcare facilities. The emergency rule is thus focused to achieve the state's goal of keeping its residents safe because it requires vaccination only of those most likely to come into regular contact with those for whom the consequences of contracting COVID-19 are likely to be most severe.

The court also rejected the plaintiff's request for an injunction based on Title VII's rule that employers must reasonably accommodate (when doing so doesn't involve undue hardship) religious objectors; any Title VII claims, the court held, must go through the prescribed Title VII remedies (which include preliminary filing of complaints with the EEOC, and then review by the EEOC). Plus,

[E]ven if the appellants were entitled to an injunction, they have not shown a likelihood of success on the ultimate merits questions. The hospitals need not provide the exemption the appellants request because doing so would cause them to suffer undue hardship.

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  1. I wish I lived in the same world as these courts, where being vaccinated prevents one from being contagious with COVID. I wouldn't have to wear a mask all the time in my workplace.

    1. If we follow the courts and get to herd immunity you may get your wish.

      1. The CDC thinks you are dreaming. See their Provincetown (MA) study, which drove the current recommendations for mask use.

      2. We should follow the courts even if for this virus, "herd immunity" becomes impossible due to the course of viral evolution.

    2. I don't think the court says vaccination prevents being contagious, in the sense of being perfectly effective. I do think its analysis rests on the theory that vaccination tends to prevent transmission, but as best I can tell, that seems correct. To quote the CDC,

      In addition, as shown below, a growing body of evidence suggests that COVID-19 vaccines also reduce asymptomatic infection and transmission. Substantial reductions in SARS-CoV-2 infections (both symptomatic and asymptomatic) will reduce overall levels of disease, and therefore, SARS-CoV-2 virus transmission in the United States. Investigations are ongoing to further assess the risk of transmission from fully vaccinated persons with SARS-CoV-2 infections to other vaccinated and unvaccinated people. Early evidence suggests infections in fully vaccinated persons caused by the Delta variant of SARS-CoV-2 may be transmissible to others; however, SARS-CoV-2 transmission between unvaccinated persons is the primary cause of continued spread.

      1. The issue is, in the health care workplace, those who have medical exemptions would be just as contagious as those who would have religious exemptions.

        But those with medical exemptions are allowed to keep working. Those who would have religious exemptions are fired. Because of that disparity, it fails strict scrutiny.

        It either needs to be critical...and everyone is denied the exemption. Or the opportunity for religious exemptions must be there.

        1. Hopefully those with medical exemptions will be few enough that they can be kept from the most vulnerable patients or take extra precautions.

          1. But then that same option should be made available to those with religious exemptions...

        2. We conclude that exempting from vaccination only those whose health would be endangered by vaccination does not undermine Maine's asserted interests here: (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 Mainers, patients and healthcare workers alike. Maine's three interests are mutually reinforcing.

          As an argument for the propsition thatthat medical exemptions don't make the mandate underinclusive I find this completely underwhelming.

      2. This is a very simplistic understanding of disease spread. Even if there were evidence that the vaccines reduce person-to-person transmission (which is *not* clear in the literature, regardless of the CDC's unsupported viewpoint), the reduction in spread is heavily tied to sociology.

        For example, the vaccines appear to attenuate symptoms (from the Phase III trials), which means that a vaccinated person could be walking around, unaware of his symptoms, while spreading the disease all over. An unvaccinated person, by comparison, is more likely to be symptomatic and either stay home or frighten those around him to stay away.

        The state should be required to provide legally contestable evidence in support of their need for a vaccine mandate ... after two years, this is no longer a sudden and unexpected emergency that requires radical and unchecked responses.

        1. AtR,
          Let's be realistic. You and friends have lost that battle. Man up (to use a non-PC term) and move on to an issue that you have a chance with.

          1. It ain't over until the fat justice sings ... and even then it ain't over.

            1. ... and even if the justice is too timid to sing, the science is still on my side (so far) ...

          2. "Man up, bend down and spread your cheeks" is not a coherent admonition.

        2. "the reduction in spread is heavily tied to sociology"
          that is definitely the case

      3. My study of the SARS=CoV-2 statistics in almost 100 countries, few dozen of which have vigorous vaccination programs shows that in general a substantial vaccination in a population (>40% including children in the count) does tend to reduce the rates of new cases. As the percentage of vaccinated persons reaches 60%, the rate of contagion is suppressed more strongly and the case fatality rate increases as a great number of the infected are unvaccinated persons. The later effect is due to the effectiveness of the vaccine in mitigating the severity of infection.
        There are some significant exception to this general trend such as the UK. Moreover very high rates of vaccination do not preclude large peaks in contagion as was seen in Israel that has over 1200 cases per million per day despite having >60% of population vaccinated.

        1. I assume you have seen the correspondence "Increases in COVID-19 are unrelated to levels of vaccination across 68 countries and 2947 counties in the United States" (https://link.springer.com/article/10.1007/s10654-021-00808-7)?

          1. I haven't but thank you for sharing the citation. I'll be interested to see the basis of the claim.

            The counties in the US is not as revealing as national data as we have the unrestricted right and sufficienct wealth on average to travel across county and state borders in the US

            1. For starter I'll note that my research, which uses the same data base (OWID), covered more than an additional month that the cited study and the the largest effect that I cited occurs after the vaccination %tage exceeds 60%. In some countries such as India the vaccination percentage has increased dramatically over the past 6 weeks.
              Consequently I rerun statistics every two months.
              I will read the manuscript this evening.

              1. Not to spoil it for you, but the international results are more convincing than the US results; the latter have very large confidence intervals (possibly due to inconsistencies in data collection, etc.).

                1. I certainly agree with you that the country by country rates are much more revealing than US rates.
                  As a caution to both you and myself, one does have to account for the large variations in health care standards, variations in practice, variations in public health policy, national wealth and dietary habits.

                  The dynamics of this pandemic are complex and is is very easy to miss outliers in statistical trends. The UK is very much an anomaly in that regard. I do not understand why. Israel also has a very unusual history of infection and of surges in rates of mortality due to COVID

          2. AtR,
            I could not resist reading quickly.
            I note the following limitations the manuscript was submitted on August 4. The data are more than 2 months old and vaccination statistics have changed dramatically in that period. The authors studied results over two separate 7-day periods. On that time scale data are quite noisy with large day to day variations. Consequently the scatter of data points in Fig.1 and error bars in figure 2 are quite large.
            In contrast I use the smoothed data from OWID that is averaged over 1 week periods. That gets rid of the very uneven reporting practices in almost all countries and counties in the US (for example in Alameda County CA, it would seem that no one ever dies on the weekend.)
            The upper trend line in Figure 1 that strong influences the conclusions is strongly driven by a few data points including Israel.
            For the main body of data. The trend is consistent with being flat.
            The paper is interesting but far from conclusive. One needs to look at trends over much longer period than 1 week; one can actually miss sharp spikes in CFR or in new case rates. Two to three months is far more revealing.
            The data over the longer period shows a high negative correlation between infection rates and vaccination prevalence. Corresponding to decreased rates of infection one generally sees increased case fatality rates as the serious infections become more and more dominated by cases in persons without immunity.

            1. The data is too months old because it takes time to publish in a peer-reviewed venue 🙂

              It's hard for me to argue with an unspecified analysis by an anonymous person on a legal blog ... but I'll agree that doing this kind of analysis correctly is challenging, and especially attributing cause from correlation.

      4. The same evidence also says that there is not a sound basis for treating the vaccinated and unvaccinated so very differently, at least for the current vaccines -- especially if the unvaccinated person previously had COVID-19. The government's behavior is pretty arbitrary and capricious here, as reflected (and perhaps driven) by so many politicians and public figures conflating vaccination inclination with political inclination.

        1. "The government’s behavior is pretty arbitrary and capricious "
          By which you mean the US government. Other governments do recognize immunity due to previous infection.

          1. Well, other governments are making policy based on medical criteria. Ours is making policy based on whether the President is losing patience with his citizens.

    3. How is this not moving the goalposts for vaccine effectiveness?

      The vaccine dramatically reduces death, symptomatic disease, and transmission. Where vaccination rates are high, it is preventing the collapse of the medical care system.

      Does it need to wax your car and walk your dog too?

      1. The goal posts have not been moved.
        No one in Pharma or in public health agencies ever claimed that the vaccines would stop transmission.
        The definitions of efficacy and effectiveness of the vaccines have not changed since trials began. See Review article, "Progress of the COVID-19 vaccineeffort: viruses, vaccines and variants
        versus efficacy, effectiveness and escape"
        Nature Reviews of Immunology, 21 Aug 2021,

  2. Economics has a very valuable tool for analysis "marginal cost v marginal benefit"

    Tremendous time and effort is being spent forcing a mandate for a vaccine whose effectiveness falls below 50% after 6 months while at the same time ignoring the much stronger immunity obtained from natural immunity.

    The claim that contracting covid after getting vaxed reduces the severity. Minnesota and maryland number tell a slightly different story.

    Current MN numbers show that approx 30% of the cases are vaxed individuals, and approximately 30% of hospitlizations and 30% of deaths are vaxed individuals. Ie very little statistical difference in severity between vaxed and unvaxed.

    Maryland, approx 30% of cases are vaxed, but it MD reported yesterday that approx 40% of the last months deaths were vaxed.

    The ratio of cases of unvaxed vs vaxed is approx 4-1 to 3-1, but that is taking into account all vaxed. Data is not readily available for comparing the ratio of vaxed post 6 months vs unvaxed. A reasonable estimate is that the ratio is no better than 2-1

    1. Not sure where you are getting these number? Minnesota Health Department reports that breakthrough cases for fully vaccinated people is at <2% and hospitalization of these is less than 0.1%. Perhaps you could give a citation.

      1. I don't know what the actual numbers are for MN or MD, but you're citing different (in fact opposites, in a way) stats than the ones he's claiming. His numbers are for % of cases, hospitalizations and deaths that are vaccinated, while yours are % of vaccinated who are test positive and those who are hospitalized.

        1. in MN approximately 60% of people are vaccinated so by his numbers 40% of the population represents 70% of cases while 60% of the population represents 30% of the cases.

          1. I don't know if his numbers are accurate, but:

            If 60% of MN is vaccinated, and that group accounts for 30% of cases, then unvaccinated people are 3.5 times as likely to become infected as vaccinated people.

            I think that's the number we want.

            1. The question Tom addressed was "The claim that contracting covid after getting vaxed reduces the severity." His numbers tend, exactly as he indicated, to disprove that.

              1. Since there's no indication of age or comorbidities in the data, we have no idea. If all the vaxed people getting sick are 80 and all the unvaxed people getting sick are 18, then the vaccines are doing a great job of reducing illness and death.

                1. jb,
                  By that is not what the statistics show in a majority of countries.

              2. The statistics in a large number of countries world wide support the claim that the vaccine reduces the severity of the disease. Otherwise the Number of new cases could not fall while the CFR increase by as much as 4x.

        2. Still think the number are off. MN Health Department reported a total accumulated cases of Covid19 as 765,761 (Oct 20, 2021) and had a breakthrough rate of 45,827 or less than 6% of cases from breakthrough of vaccinated people. The hospitalization number is 2178 or less than 5% of those who were vaccinated and had breakthrough.

          1. Moderation4ever
            October.20.2021 at 3:03 pm
            Flag Comment Mute User
            "Still think the number are off. MN Health Department reported a total accumulated cases of Covid19 as 765,761 (Oct 20, 2021) and had a breakthrough rate of 45,827 or less than 6% of cases from breakthrough of vaccinated people. The hospitalization number is 2178 or less than 5% of those who were vaccinated and had breakthrough."

            Those numbers appear accurate but the presentation by the MN DOH is intentionally misleading.

            the total infections of 765k is from Feb 2020. The majority of breakthrough infections didnt start until mid august 2021 when there were a total of 622k cases, which is when the 6 month effectiveness dropped. Using the correct time frame shows the breakthrough infection case rate to be apprx 7x the rate reported by the MN DOH. 45k / 140k = appr 30%.

            The 2178 hospitalization number / less than 5% rate published by the MN DOH is also highly deceptive. It is for the entire 2020/2021 through oct 10th instead of starting when the breakthrough events start to happen. Since Sept 1, it is 880 breakthrough hospitalizations / 3094 total hos[italizations = 28.44%

            1. If you think it's misleading, it's because you're not looking at the other data the MNDH provides. Yes, they do report the raw numbers of breakthrough cases (and then as a percentage of the vaccinated). Others then compared those to the overall cases, which was wrong.

              The Minnesota Department of Health now has charts showing weekly age-adjusted rates (i.e., number of cases per 100,000 people). These show that unvaccinated are between 3x and 9x more likely to contact a case (depending on age). The are anywhere from 10x's to 20x's more likely to die.

              Granted, there is some self-selection problems with this (if you don't vaccinate, you likely hang out with others who don't vaccinate, increasing your chances of contracting the disease). But it's clear that, even 6+ months after vaccinations started, they are still very effective.

              You can get the latest report (showing the rates) here.

              1. David Bremer
                October.21.2021 at 9:46 am
                Flag Comment Mute User
                If you think it’s misleading, it’s because you’re not looking at the other data the MNDH provides. Yes, they do report the raw numbers of breakthrough cases (and then as a percentage of the vaccinated). Others then compared those to the overall cases, which was wrong.

                The Minnesota Department of Health now has charts showing weekly age-adjusted rates (i.e., number of cases per 100,000 people). These show that unvaccinated are between 3x and 9x more likely to contact a case (depending on age). The are anywhere from 10x’s to 20x’s more likely to die."

                David - I appreciate you acknowledging that some of the data is mispresented. It should be noted that the second paragraph I copied from your response (which is based on the MN DOH ) is flat out wrong. MN is using the cases and death since january 2020 as the denominator instead of cases since the vaccines were introduced. The use of the incorrect denominator greatly distorts the accuracy of results.

                currently MN has apprx 3.2m fully vaxed out of population of 5.5m , adjusting for age not available for vax and for the time delay associated with 3-4 months of getting those 3.2 vaxed, along with adjusting the vaxes effectiveness decline after 5-6 months, the real number is only 2x-3x instead of the advertised 10x-20x (as promoted by the MN DOH.

                the Sept 2021 and month to date Oct 2021 show that approx 30% of the new cases are vaxed, approx 30% of the hospitalizations are vaxed and approx 22% of the deaths are vaxed. Those vaxed percentages are going to increase during the rest of Oct and into Nov as the vax's effectiveness continues to decline

      2. With respect to mandates key metric is breakthroughs transmission rate and not the other numbers. So natural immunity is superior to vaxxed immunity in Delta world BUT if breakthroughs are transmitting at equal rates as unvaxxed then that undermines the mandate because the only way we get out of this is with a population with higher natural immunity. Furthermore, the best immunity is natural immunity followed by a vax…but one has to acquire natural immunity first according to the science we have today. So put simply without looking at how a population got to this point—100% natural immunity is superior to 100% only vaxxed immunity in Delta world AND natural immunity population has opportunity for super immunity which protects from future variants.

        Two caveats—Japan’s abrupt drop might indicate breakthroughs transmit at a much lower rate and there is evidence that breakthroughs are eventually getting super immunity.

        1. " evidence that breakthroughs are eventually getting super immunity."
          I'd love to see that evidence

          1. https://www.nature.com/articles/d41586-021-02795-x is one article that discusses "hybrid immunity" to COVID-19.

            1. That article, like the Israel study, clearly makes the case that even for people who already had Covid, you get the best protection from Covid by being vaccinated.

      3. healthy skeptic is the web site. I would provide a link, but reason seems to block posting of links.

        A) the 30% 's (approximate) are the %of new cases for the month of Sept and 2 weeks of October.
        B) The DOH claim of 2% breakthrough cases is based on all vaxed since Jan 2021 while the current % is based on the last 6-7 weeks. The difference is important since the is around the 6 month period that the effectiveness of the vaccine drops off.
        C) the DOH claim of hospitalizations is dubious since the last six weeks show that the % vaxed hospitalizations, the % vaxed deaths and the % vaxed cases are running around 25% to 30% of total cases. The DOH is using hospitalizations since jan 2021 which hides the rapid decline in effectiveness of the vaccines after 5-6 months.

        1. You can't post a raw URL. It will work if you post a properly formated HTML link.

          How to do HTML links

          1. PS you can't do two links in one comment.

            1. Rev.Kookland says that was the case in the past, but he often posts more than (irrelevant) one music video nowadays.

              1. ...and AtR's link is in raw form.

                1. Which works IF it's short enough.

        2. Healthy Skeptic? A website written by someone with a "law degree and an MBA"? Is that really the best source for medical information?

          1. David Nieporent
            October.20.2021 at 9:59 pm
            Flag Comment Mute User
            Healthy Skeptic? A website written by someone with a “law degree and an MBA”? Is that really the best source for medical information?"

            An MBA with extensive managerial experience in health care, while the MN DOH provides raw case counts - simple arithmetic - he also finds numerous mispresentations of the data.

            So yes, definitely worth relying on.

        3. Reason does not block posing of links. See, e.g., AtR's post upthread.

      4. Have a look at the statistics of the delta breakthrough in Israel with a peak of >1200 new cases per day per 1 million when 60% of the entire population was vaccinated. The breakthrough rates was clearly much higher than 2%. Moreover that peak well distinctly after the CFR has its peak and decline to baseline as delta burned though the unvaccinated population

    2. " Tremendous time and effort is being spent forcing a mandate for a vaccine whose effectiveness falls below 50% after 6 months "

      I hope someone develops a method of boosting vaccine effectiveness after six months . . .

      1. My preference would be for development of a long lasting vaccine instead of one that only works for 5-6 months before its effectiveness drops to 50% or less

        1. Hey! Mine too!

          This is one of those cases where my preference for chocolate cake isn't going to drive me to the wrong choice when playing "cake or death."

          What?! You don't have chocolate cake? Ok then. I'll take death!

          1. Except that isn't the choice, but thanks for the panic mongering.

        2. Sure, we all would have liked that.
          But the virus has been mutating at a rate comparable to several months

        3. While I understand your preference, I also have to acknowledge that may not be possible. In the end it is really a feature of the nature of our immune response. We have vaccines that are given once small pox, polio and other given more frequently. I used to get a tetanus every 10 years. Most children are immunized against whooping cough and now we are beginning to ask if we need to repeat vaccines for older people.

          The point is immune response are not uniform for agent initiating the response. So the idea of a long term Covid19 immunity may not be possible. What we do know is that whatever immunity we have provides a major reduction in the severity of the infect.

      2. And not all vaccines are the same.

        The Moderna vaccine is showing very little decline in effectiveness after 4 months.

        "...the CDC, found Moderna’s effectiveness against hospitalization held steady over a four-month period, while Pfizer’s fell from 91% to 77%. This research is still limited and more data is needed to fully understand the differences between the two vaccines."

        Acquired immunity isn't necessarily better, either. People with milder or asymptomatic disease aren't getting the same immunity boost that vaccines provide. And the folks with more dramatic disease are having to deal with long covid, massive hospital bills, and occasionally, the undertaker.

        1. The Moderna vaccine is showing very little decline in effectiveness after 4 months.

          “…the CDC, found Moderna’s effectiveness against hospitalization held steady over a four-month period, while Pfizer’s fell from 91% to 77%. This research is still limited and more data is needed to fully understand the differences between the two vaccines.”

          Shawn - partially true - mederna's is approx 75-80 % after 6 months vs pfizers which in the 50% range. Note however, the CDC cut the study off at the 4 month point to make the data look better.

        2. "Acquired immunity isn’t necessarily better, either. People with milder or asymptomatic disease aren’t getting the same immunity boost that vaccines provide. And the folks with more dramatic disease are having to deal with long covid, massive hospital bills, and occasionally, the undertaker."

          that statement is highly dubious.

          the link is also to the Kentucky study which is well known for the multitude of errors. First problem is the small sample size, do Quick google search on Kentucky vaccine study errors.

          The rate of reinfection has been holding around a steady 1% range since inception, whereas the breakthrough rate after 5-6 months is in the 7-10% range . The CDC is well aware of the error in their statement.

        3. Shawn's link to the kentucky study - "The study of hundreds of Kentucky residents with previous infections through June 2021 found that those who were unvaccinated had 2.34 times the odds of reinfection compared with those who were fully vaccinated. The findings suggest that among people who have had COVID-19 previously, getting fully vaccinated provides additional protection against reinfection."

          A few notes so that you can grasp the deception / Overstatement by the CDC

          1) "hundreds of kentucky residents" was only 246, a very small sample size
          2) the study period was only 2 months. May & June 2021
          3) the study ended in June before the 6 month period where the vaxes effectiveness drops.
          4) during the 2 months, there were 20,201 infections in kentucky,, 246 were reinfections 1.21% , 179 were unvaxed = 0.88 %, 50 fully vaxed / 20201 = 0.33%.

          You will note that the vax only gets an additional 0.5% reduction - though based on the very small sample size and based on the vaccine that is 2-3 months short of the rapid decline in effectiveness.

    3. “marginal cost v marginal benefit”

      And what is the cost of getting the vaccine?

    4. FWIW:

      Unvaccinated Minnesotans 30x More Likely to Die From COVID

      MINNEAPOLIS (AP) — Unvaccinated Minnesotans are 15 times more likely to require hospitalization for COVID-19 and 30 times more likely to die from the disease than unvaccinated residents, Health Commissioner Jan Malcolm said Wednesday.

      By STEVE KARNOWSKI, Associated Press
      Unvaccinated Minnesotans 30x More Likely to Die From COVID

      1. Wisconsinite in Minnesota
        October.20.2021 at 11:17 pm
        Flag Comment Mute User
        FWIW:
        "MINNEAPOLIS (AP) — Unvaccinated Minnesotans are 15 times more likely to require hospitalization for COVID-19 and 30 times more likely to die from the disease than unvaccinated residents, Health Commissioner Jan Malcolm said Wednesday.

        By STEVE KARNOWSKI, Associated Press
        Unvaccinated Minnesotans 30x More Likely to Die From COVID""

        Wisconsite - that is an extremely inaccurate statement , if not an outright lie - As I noted above :

        The MN DOH is using the wrong time period for the denominator

        the total infections of 765k is from Feb 2020. The majority of breakthrough infections didnt start until mid august 2021 when there were a total of 622k cases, which is when the 6 month effectiveness dropped. Using the correct time frame shows the breakthrough infection case rate to be apprx 7x the rate reported by the MN DOH. 45k / 140k = appr 30%.

        The 2178 hospitalization number / less than 5% rate published by the MN DOH is also highly deceptive. It is for the entire 2020/2021 through oct 10th instead of starting when the breakthrough events start to happen. Since Sept 1, it is 880 breakthrough hospitalizations / 3094 total hos[italizations = 28.44%

  3. Is this the same case that the District Court decided only last week? I stand by my opinion in last week's comments: if strict scrutiny applied I would not uphold the law, but strict scrutiny does not apply. And if I were an appeals court judge I would not waste virtual ink on dicta about strict scrutiny. Perhaps the trial judge did it to have an alternative basis to uphold the order on appeal.

    1. John,
      I assume that this is correct...but I think the judge WAS smart to add the dicta. If I were an appellate court, I would find it important that this trial court judge has already made a factual finding that this case does meet strict scrutiny. So, if the appellate court were to overturn the official decision, I can't imagine that--as part of the order sending it back to the trial court--the appellate court would order an injunction during this interim back-to-the-trial-court period.

  4. I disagree with you because of this language "The regulation applies to all healthcare workers for whom a vaccine is not medically contraindicated." The State has decided that medical issues are worthy of protection but religious ones are not. Given the recent lockdown rulings of the Court (eschewing false attempts to distinguish Casinos from Churches), I would not be surprised if this is overturned on the shadow docket.

      1. Dream on, AL.
        The medical exception is given when the vaccine is medically contraindicated. That is a viewpoint neutral distinction. The court is NOT going to rule that health workers are going to be harmed.

        1. No.

          If it is deemed critically necessary for all health care workers to be vaccinated, the proper response is for those who cannot be vaccinated for medical reasons to be moved to other positions or relieved of their position. That is what would be proper if that was the necessity.

          1. No, because you say so? The worker will have to be subject to testing every couple of days, will have to mask with an N95 respirator. The hospital will make its own prudential decision.

            1. Then that same option (subject to testing every couple of days, will have to mask with an N95 respirator) should be made available to those with religious objections and exemptions.

            2. The employer can make whatever work related treason it wants to given the advice of counsel. The judge is not going to overrule a medical judgement.

    1. "The State has decided that medical issues are worthy of protection but religious ones are not."

      That's because when something is medically contraindicated, it has a known likelihood to cause actual harm.

      1. Then the proper response is to remove those people who have medical reasons for not getting the COVID vaccine from their position in health care.

        1. Along with the so-called 'religious' exemption requesters too, right?

          Let me guess: they get to stay for some reason?

          1. If those with medical exemptions go, then those with religious exemptions go. If those with medical exemptions stay, then those with religious exemptions should be allowed to stay.

            1. The "medical exemptions" to the mRNA vaccines seems a little dodgy to me anyway, as the only contraindication the CDC lists as known is "allergic reaction to the mRNA vaccine or its components", which seems rather circular.

              You can get an exemption from the vaccine if you've already gotten a shot of the vaccine?

              1. Let me give you an example a patient who is presently taking an monoclonal anti-body for a blood cancer should not take the vaccine or a booster once treatment starts.

                1. That's a good point. I was thinking only of other existing conditions, rather than other treatments, which you are correct can certainly conflict.

                  Curiously, though, it seems like monoclonal antibodies are not categorically contraindicated with general vaccinations - in the case of HIV, may even be recommended - but there are other cases where they are explicitly listed as such. Interesting. Thanks for pointing this one out.

                  1. You're correct.
                    That very much depends on the type of cancer (or other infection) that the medication is designed to treat.

  5. This might draw Supreme Court review. I think it's substantively correct, but it may be inconsistent with the gloss on the "most favored nation" test that SCOTUS seems to be applying these days.

    1. Indeed, the Court left the contours of the "most-favored nation" test unstated. Even worse, they did so in the shadow docket, leaving lower courts in the lurch. Normatively, I agree with Eugene's take that courts are not equipped to judge whether an exemption undermines the government's asserted interest. However, even Justice Kagan seemed to accept that rule (taken from Lukumi) in her South Bay dissent.

  6. "medical exemption … available to an employee who provides a written statement from a licensed physician, nurse practitioner or physician assistant that, in the physician's, nurse practitioner's or physician assistant's professional judgment, immunization against one or more diseases may be medically inadvisable."

    So we go the abortion route and get a doctor to determine submission to a government mandate is inadvisable for my mental health?
    Or a more medically accurate determination that having had the virus, immunization is medically inadvisable?

    1. I think there’s an argument strict scrutiny applies. The seminal “most favored nation” case was Police V. Newark, which Alito wrote as a 3rd circuit judge. That case exlicitly held that if you make a medical exception, you must also make a religious exception, or else your rule lacks general applicability and strict scrutiny applies.

      I also think there’s an argument this case would pass strict scrutiny. The Newark poice deartment’s interest in its officers having a uniform aprarance, which was the basis for the no-beards rule challenged in Police v. Newark, is significantly less substantial than the State of Maine’s interest here.

      1. Or perhaps, the stated interest in the Newark case (uniform appearance) is undermined by the exemption, while the interest in this case (public health) is not?

        1. If unvaxxed workers undermine public health then they undermine public health no matter their reason for going unvaxxed. So, no.

    2. Well, being forced to violate my religious values disturbs my mental health. So...

      1. I have censored my nasty comment

    3. In California there were doctors who would give you a medical exemption for the asking, much like there were doctors who would prescribe marijuana for the asking. The state tried to gain control over the exemption process to prevent doctor shopping. I have not seen any followup articles recently due to COVID reporting overload.

    4. Look, the health care worker is subject to the precautions of her/his employer. Than can include the employers physicians evaluating whether vaccination is medically contraindicated.

  7. Facts are often a difficult thing to deal with.

    How exactly did Sweden's more Libertarian approach work?

    https://www.businessinsider.com/sweden-covid-no-lockdown-strategy-failed-higher-death-rate-2021-8

    Not so great.

    1. What percentage of deaths were among obese people or over 80

      1. Do you think Sweden's population is fatter and older than its neighbors, or are you saying you just don't care if those people die?

        1. They're going to die shortly anyway. COVID just hastened it.

          1. We are all going to die eventually so why should we take any precautions?

            Is that really the basis of your thought?

            1. There's a reason YLL (years of life lost) is a thing people measure

        2. Nisii's question is just trash talking.
          The demographics in Norway, Sweden and Denmark are the same. That is all one needs to know when comparing and contrasting the results of their respective policies.

    2. extremely misleading article

      1) Norway had a very hard lockdown
      2) denmark has slightly better but similar numbers
      3) Sweden's results rank 4th or 5th best in all of europe by large margins

      1. The most recent economic nobel prize went to economists who were able to show the value of "natural " experiments where you could not run studies using controls and alternative treatments. Sweden is not comparable in many ways to other countries in Europe such as Germany or Italy or Spain. What it is most comparable to is Norway, a nearly identical sibling, albeit with a lower population, but essentially identical ethnic and genetic heritage. Compare the numbers and outcomes of Norway and Sweden, not Sweden and Italy, and see where you are. By any measure, the approach of Sweden so lauded by the right (how ironic is that) was an abject failure.

        1. "was an abject failure"
          By what metric Al?
          The CFR in Sweden and Norway are essentially the same now.
          Sweden paid a high price in cases and in deaths per million, but a much smaller price economically and likely in terms of deferred treatments of cancers etc.

          1. "What it is most comparable to is Norway, a nearly identical sibling..."

            IIRC, Sweden was harder hit by nursing home deaths, and it's not clear to me that it is in how it handles the elderly nearly identical to Norway.

            1. Gandy,
              That may be so but does not account for the multiples of cases or deaths per million with respect to Norway. That ratios are just too large to be due to hare home deaths.

    3. But not so bad either. In fact the course of the disease as seen in case fatality rates is remarkable the same as in Norway.
      What was different is that Sweden had several times the number of total cases per million as did Norway.

  8. I believe this argument is flawed. Here's why.

    Let's say that vaccination of health care workers was absolutely essential. Critical to safety. No ands, ifs, or buts. You needed to be vaccinated, or needed to get out. In such a case, such a law would be valid. But that's not exactly what happened here.

    You see, the state provided an "exception" for some people. For those who have a medical condition, they...don't need to be vaccinated. But can continue their work in health care. They won't get fired. They're exposed to (presumably) the same risks, patients, as someone who had a religious concern, have the same (or even worse) health risks, but the state gives them a pass. In providing that exemption, but not providing an opportunity for that exemption to those with religious concerns, the law fails strict scrutiny.

    Let's use a separate example to make the case. Imagine for a given profession, it was critical that a respirator closely fit ones face. Beards weren't acceptable. If you had a religious belief that you needed a beard...you couldn't do the job. Likewise, if you had a medical condition that prevented you from closely shaving...you ALSO couldn't do the job. If there was an alternative that allowed the person with the medical condition to do the job, you would also need to offer it to that person with the religious belief.

    The "third party" argument is inherently flawed. The third party argument goes "Since we also discriminated against this third party, we didn't select out your group for discrimination, so it's OK". In this case, the third party were those with philosophical objections. But imagine how that argument goes in a racial context. "Sure, we allowed white people the exemption and denied it to black people. But since we ALSO denied it to Asian people, it's not really discrimination against black people and its OK". The argument is flawed and doesn't work.

    1. Armchair Lawyer: Doesn’t the court spend a good deal of time on that? Its argument that the government is trying to protect health. Immunizations generally on net protect health, of both the immunized and others. But for the very few people for whom immunizations are dangerous, immunizations actually harm aggregate health. Thus, both with the general mandate and with the medical exception, the government is furthering the goal of protecting health (though balancing the health of the employee and the health of others).

      But a religious exception wouldn’t protect health, and that’s why the government isn’t giving it. Seems pretty sensible, and in particular enough to keep the law generally applicable (and, if strict scrutiny is applied, to keep it from being unconstitutionally underinclusive).

      1. There are 2 points.

        1. If the mission is to protect "aggregate health" the proper recourse is to ban those who have medical exemptions from vaccination from serving in health care. Health care is high risk, regardless of why you have an exemption. Medical or otherwise. You're still not vaccinated. I'm not saying you need to vaccinate those who have medical concerns...rather they need remove themselves from the health care workplace. But once you start providing exemptions, you acknowledge that there are other concerns than simply protecting "aggregate health".

        2. There is a long history of case law on people denying vaccines or medical treatments due to religious reasons. All of these interfere with "aggregate health." Balancing religious freedom and aggregate health is important. One way to see the balance is to see if other exemptions are being made...which they are.

        1. If the mission is to protect “aggregate health” the proper recourse is to ban those who have medical exemptions from vaccination from serving in health care.

          Isn't the proper policy rightly determined by the elected branches?

          One way to see the balance [between religious freedom and aggregate health] is to see if other exemptions are being made…which they are.

          But if those exemptions enhance aggregate health, then they don't tell us anything about the balance.

          1. "Isn’t the proper policy rightly determined by the elected branches?"

            In accordance with our Constitution and rights. I mean you don't want the elected branch to decide everything, without any limits, right? And one of those limits are those that would impede on religious freedom.

            "But if those exemptions enhance aggregate health, then they don’t tell us anything about the balance."

            Again...if they are making exemptions...any exemptions...they are valuing items other than simply "health". They should fire all those who would need medical exemptions. That they don't do so indicates that certain values are being maintained other than simple "health".

            1. Again…if they are making exemptions…any exemptions…they are valuing items other than simply “health”.

              You are begging the question as to whether a medical exemption values something other than health.

              1. The issue is, the medical exception values the person's liberty (Freedom of choice and continued employment in a field of their choice) ABOVE the aggregate health.

                The proper response for aggregate health would be to remove them from their position. The medical exemption for employment values liberty.

                This is the major mistake being made. This mandate is in the context of employment in a given field. The choice is not binary, simply universal vaccination or not. It is vaccination for continued employment. There is always a third option...loss of employment.

                If you have a medical reason you can't have a job, then you shouldn't have the job. The medical exemptions being granted here are really a question of liberty...not health.

                1. It seems to me, as it did to Eugene and the circuit panel, the law is not generally applicable (per Lukumi and Tandon) if the medical exemption undermines aggregate health in a similar way that a religious exemption would. That is, the comparison is between the impact on aggregate health of a medical exemption versus a religious exemption. And, because the medical exemption provides better aggregate health than the religious exemption, the law is generally applicable.

                  You on the other hand, have constructed a more rigorous test where a law is not generally applicable if the medical exemption provides less aggregate health than not having the exemption. That is, the comparison does not involve the religious exemption at all. I think this more rigorous test is not consistent with Lukumi and Tandon.

      2. This ignores mental health. Is it healthy for a person to be put in the psychic bind of violating their belief of what God commands them to do and what the state compels them to do to have a job? Clearly not.

        1. The deleterious effect of the disease on those with mental health issues has been studied and documented. Better that these persons have a reduce chance of becoming infected and a reduced chace of severe disease if they do become infected.

      3. EV: "Doesn’t the court spend a good deal of time on that?"

        Not in the excerpt you quoted. All I see is the following ipse dixit:

        We conclude that exempting from vaccination only those whose health would be endangered by vaccination does not undermine Maine’s asserted interests here: (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 Mainers, patients and healthcare workers alike. Maine’s three interests are mutually reinforcing.

        As Armchair Lawyer keeps pointing out, this is nonsense. If the unvaxxed are a threat in any of these ways it doesn't matter why they continue to work while remaing unvaxxed.

        1. Indeed.

          Now, the general feeling is going to be "It's not fair to fire those workers who medically can't be vaccinated, they should be exempted" Sure...I agree, it's not fair. It's not fair to make them choose between their health and their job. But if the mandate is needed so desperately, then that's the price needed.

          Equally so, it's not fair to fire those workers who have genuine religious objections. Who so strongly believe. It's not fair to make them choose between their religion and their job.

          And if the mandate truly is absolutely critical...then both groups need to be fired.

          But by giving a secular exception to one group, because it's not fair for them to lose their jobs...but denying it to the second because they just have religious objections...it acts as religious discrimination.

    2. "Let’s use a separate example to make the case. Imagine for a given profession, it was critical that a respirator closely fit ones face. Beards weren’t acceptable. If you had a religious belief that you needed a beard…you couldn’t do the job. Likewise, if you had a medical condition that prevented you from closely shaving…you ALSO couldn’t do the job. If there was an alternative that allowed the person with the medical condition to do the job, you would also need to offer it to that person with the religious belief."
      Indeed, there was and is such a profession, plutonium workers. They may not have a beard. No respirator could be fit well enough to prevention internal exposure to plutonium particulates. And a full-body suit such as are used in BL4 facilities is generally inconsistent with the the tasks to be performed.
      There were no religious exemptions given for anyone to have a beard.

      1. Indeed...there were no religious exemptions. Also critically there were no MEDICAL exemptions.

        Which is the entire point.

        But once there's a medical exemption or alteration, well....

        1. You're wrong or misleading again. Precisely in the case that I have cited there are medical reasons that people are denied working in those facilities and potential exceptions to those medical reasons.
          But no beards period.

          1. Also,if your beard is a 2-day growth due to "no close shaving" you might be allowed to have that. That would depend on the evaluation with the respirator.

          2. Which again, was the point. No beards period...for medical or religious reasons.

            There was not a medical exemption for beards. If there was medical exemption for beards, there would need to be a religious exemption. If it was OK for a certain length of beard, then it would be the same for both.

            1. "If there was medical exemption for beards, there would need to be a religious exemption."
              Your opinion does not count.

  9. https://citizenfreepress.com/column-1/massachusetts-state-police-sergeant-in-icu-after-vaccine/

    Police Sergeant in ICU day after receiving the vaccine.

    Hey, it's just one cop and I'm sure it's just a coincidence.

    1. One day after receiving the vaccine does not yield any substantial increase in immunity.

      1. Moreover, the cop must have been infected well before s/he received the vaccine.

        1. Other than that, Cindy, great comment! Thank you for making our point better than we could have.

        2. Agreed. He was likely infected before the vaccine. It is also well to not that the vaccine does take time to work. Remember what the vaccine is attempting to do and that is to prime the immune system so it can get a running start battling the infection.

        3. I hate to interrupt the smugness echo chamber here, folks, but nobody said he was in the ICU because of COVID. Though it may be hard to believe after a year and a half of incessant conditioning, that's not the only reason you can end up there.

          1. Fair point. My assumption that Cindy knew this, and mentioned this incident only b/c he was there due to Covid. And I think that was a reasonable inference...after all; what would have been her point if the ICU was unrelated to Covid? "This cop got the vaccine, and the next day he was shot by a suspect and ended up in the ICU. Coincidence?"

            It makes no sense. Surely you agree with that, yes?

            1. And I think that was a reasonable inference…after all; what would have been her point if the ICU was unrelated to Covid?

              I think the most straightforward reading of the words she used is that she was suggesting he ended up in the ICU because of the vaccine.

        4. Irrelevant. He's not in the ICU with COVID, he's in the ICU with a stroke. By the standard of "COVID related hospityalizations" tracked by the CDC this ought to be a "Vaccine related hospitalization", but the standards are somehow different.

          1. The hospital may be applying good medical sense.
            They would have tested the patient for COVID on admission. If the test were negative nothing would have been reported.

          2. I can tell you that my provider has declined to register my son's serious neurological side effect (seen immediately after shot 1 and worse after shot 2) as a vaccine side-effect even though extensive test revealed no other cause.
            Hospitals do not follow CDC slavishly

  10. So the "freedom loving" fascists at Volokh are in favor of mandates for a mostly worthless "vaccine" (you can still carry the disease, you can still get the disease, you can still be hospitalized from the disease, and you can still be killed by the disease, all while you're "fully vaccinated."

    Those words don't mean what you think they mean), and haqve orgasms abotu jduges forcing the garbage mandates on people.

    but no coverage for In and Out refusing to play vaccine police?

    You guys are really pathetic

    1. Believe us, Greg; the feeling is entirely mutual.

      Now, return to bed, turn on Fox News, and get back to masturbating to whatever is today's Tucker Carlson latest outrage monologue.

      1. Wow, you said it far better than I could have. Bravo!

  11. a few (actual legal) questions:
    1) Where is the review of the mandate from Maine State statute/precedence? Smith was very unpopular hence Federal and State RFRA. In case of Maine, Law Court (State Supreme Court) interpreted State Free Exercise Clause in Blount (1988) to have increased scrutiny (substantial burden test) and re-affirmed in Fortin (2005). See Volokh "What is the Religious Freedom Restoration Act" 2013 and Dunlap "A Venerable Bulwark: Reaffiffirming the Primacy Approach to Interpreting Maine's Free Exercise Clause" 2021.
    2) "plaintiffs have no likelihood of success (under strict scrutiny)" Really?? If requirement can be narrowly tailored (some other testing or work schedule) to allow individuals with medical conditions to remain unvaccinated and continue to do their jobs without creating risk for patients why not for deeply held religious beliefs? It may pass strict scrutiny but certainly not a slam dunk.
    3) Title VII: Similar to narrowly tailored review under strict scrutiny, if there is an accommodation that allows individuals with medical reasons for not taking vaccine to continue to work without creating an undue hardship then why not for religious reasons? Title VII/ADA doesn't require employers to provide unreasonable accommodations for either health or religion so you could fire an employee for inability to take vaccine if it created an undue hardship. Title VII requires employers to accommodate an employee's sincerely held religious beliefs or practices unless the accommodation would impose an undue hardship. Language is the same in the ADA but it seems Maine only cares about people with medical reasons for not taking a vaccine and ignores deeply held religious beliefs. Seems like some "likelihood of success" in arguing that one....

    Thoughts?

  12. You pro-vax mandate "libertarians" are going to love it when your kid gets sick and there's no room for you at the inn because 20% of the healthcare workers quit rather than submit to the clot shot. You think these workers are just going to prostrate themselves before your mandates and get the jab over this? That ain't gonna happen. These people are walking.

    Go look up the VAERS data. There are less than 1,300 reported associated deaths from all flu shots combined going back 30 years. The COVID Vaccines are well over 6,000. The cases of myocarditis in kids are massively under-reported. Medical professionals have been terrified into not reporting what they are seeing. My co-workers daughter just ended up the ER with a pulmonary embolism over this a few weeks ago, doctor claimed it was a "normal' response.

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