Bloomberg Law
Oct. 29, 2021, 10:46 PM

High Court Allows Vaccine Mandate Without Religious Opt-Out (1)

Greg Stohr
Greg Stohr
Bloomberg News

A divided U.S. Supreme Court refused to order Maine to allow religious exemptions to its new requirement that health-care workers be inoculated against Covid-19.

Over dissents by three conservative justices, the high court rejected a group of workers and one employer who said their religious views put them at risk of losing their jobs and health-care practice. The challengers said they object to the three available vaccines because they have links to cell lines derived from aborted fetuses.

The Supreme Court order applies while litigation over Maine’s rule goes forward. The case marked the first time the court had been asked to say that a vaccine mandate must include a religious exemption.

The court as a whole gave no explanation. In a concurring opinion, Justices Amy Coney Barrett and Brett Kavanaugh indicated they didn’t see the case as a good candidate to be considered on the merits because of the novelty of the issues. Writing for the pair, Barrett suggested the court shouldn’t grant emergency requests if the justices are unlikely to consider an appeal.

“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.

Justices Neil Gorsuch, Clarence Thomas and Samuel Alito dissented.

“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,” Gorsuch wrote for the group. “All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention.”

The court previously allowed vaccine mandates that already had religious opt-outs. In August Barrett rejected a challenge to Indiana University’s requirement that all students be vaccinated unless they have a religious or medical exemption. Earlier this month, Justice Sonia Sotomayor let New York City require school employees to get shots.

Exemptions Eliminated

Maine is among a small number of states that require vaccinations for health-care workers without allowing a faith-based exemption. Separately on Friday, the federal appeals court in New York declined to require the state to allow religious objections to its vaccine mandate for health-care workers.

The Moderna Inc. and Pfizer Inc. mRNA vaccines were tested using a cell line that originated with an aborted fetus in the 1970s. The Johnson & Johnson vaccine uses a different cell line during production and manufacturing. None of the vaccines contain aborted fetal cells.

Maine allowed religious and philosophical exceptions to its vaccine mandate until 2019, when the state legislature eliminated non-medical exemptions amid declining vaccination rates.

Maine for years required health-care workers, daycare employees, schoolchildren and college students to be vaccinated against infectious diseases. The state added Covid-19 to its list in September and is set to start enforcing the rule on Friday.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

The workers and employer said Maine is violating the Constitution as well as a federal civil rights law that bars religious discrimination in the workplace. The employees said the lack of a religious exemption meant they would effectively be barred from working anywhere in the state, while the employer said he risked having to shutter his practice.

“When we have demanded so much of our health-care heroes, we owe them nothing less than the full measure of our own commitment to constitutional principles,” the group said in court papers.

Maine officials said its rule is a religiously neutral way to protect patients and those medically unable to get vaccinated. Maine told the court that the rate of infection in the state for people 12 and older is eight times higher among the unvaccinated.

“Maine added COVID-19 to the rule in order to protect its health-care infrastructure, workers and patients, and vulnerable populations,” the state argued. “Requiring vaccination of all medically eligible health-care workers protects public health by ensuring that all persons can receive necessary medical treatment, for COVID-19 or otherwise.”

Maine said its vaccine mandate isn’t as broad as the challengers claimed. The requirement doesn’t cover private physician practices or urgent care clinics, and it doesn’t affect employees who work remotely, the state said.

The case is John Does 1-3 v. Mills, 21A90.

(Updates with excerpts from opinions starting in fourth paragraph.)

--With assistance from Bob Van Voris.

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Greg Stohr in Washington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

Justin Blum

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