So far, the justices have declined invitations to strike down vaccine mandates at Indiana University
and New York City schools
, but the Maine dispute could be different.
That’s because the workers are making religious claims that could attract some of the justices.
The case is reminiscent of religious liberty disputes that arose in the early days of the coronavirus pandemic when states passed strict rules seeking to combat the spread of the virus. The court’s conservative majority ruled in favor of houses of worship in those disputes.
“Even in times of a crisis — perhaps especially in times of crisis-we have a duty to hold governments to the Constitution,” Justice Neil Gorsuch wrote at one point.
The Maine vaccine mandate is set to take effect on October 29. The workers argue that it violates the Constitution and Title VII, federal civil rights law that bars employment discrimination based on religion. While Maine offers a limited exemption for some medical situations, it does not consider requests for religious objections.
“Maine has plainly singled out religious employees who decline vaccination for religious reasons for especially harsh treatment,” Mathew Staver, a lawyer for Liberty Counsel, representing the workers, wrote in court papers.
At the same time, Staver said the state has been “favoring and accommodating employees declining vaccination for secular, medical reasons.”
Staver said the workers object to the vaccines because of the way that they were either “developed, researched, tested, produced or otherwise developmentally associated with fetal cell lines that originated in elective abortions.”
It is an argument that has been made before. The Catholic Church and the Congregation for the Doctrine of the Faith, the church’s highest doctrinal authority, have wrestled with the moral permissibility of receiving Covid-19 vaccines because of their distant relation to fetal cell lines developed from abortions in the 1970s and 1980s.
The AstraZeneca and Johnson & Johnson vaccines were developed using aborted cell lines, though the final product does not contain fetal cells. The Pfizer and Moderna vaccines were not manufactured from fetal cell lines and the final product does not contain fetal cells, although their testing used these cell lines.
The Vatican’s Congregation for the Doctrine of the Faith s
aid in a note approved by Pope Francis that receiving the shot was morally permitted. “It is morally acceptable to receive Covid-19 vaccines that have used cell lines from aborted fetuses in their research and production process,” the note said.
But the health care workers, including one health care provider who operates his own private practice in the state, still object. The provider doesn’t want to receive the vaccine and he wants to honor the beliefs of his employees who also object. When the mandate goes into force, he says he will face the revocation of his license and the shuttering of his practice.
“Since Covid-19 first arrived in Maine,” Staver told the justices,
his clients “have risen every morning donned their personal protective equipment, and fearlessly marched into hospitals, doctor’s offices, emergency rooms and examination rooms with one goal: to provide quality healthcare to those suffering from Covid.”
He noted that Maine had been allowing religious objections, but changed course at around the same time as the Delta variant intensified.
In response, Maine Attorney General Aaron Frey urged the justices to let the mandate stand, saying that the pandemic has “gripped” the state with 100,937 total confirmed cases and 1,122 deaths as of October 2021. He said the mandate was necessary to “prevent the spread of Covid” in high-risk places and that it did not target religious practice.
A medical exemption is necessary, he said, “because there are certain circumstances when vaccination may cause adverse health consequences, thereby actually harming that individual.”
Frey argued that Maine is different from other states because the size of its workforce is limited. Contrary to Staver, he said that the state did publish guidance explaining that the state rule does not prohibit employers from providing accommodations under Title VII. They can allow employees to work remotely, the state said, or they can be reassigned to a facility not covered by the mandate.
Albany Law School Dean Alicia Ouellette said the religious aspect of the challenge will make this case more attractive to justices than other efforts to end vaccine mandates.
“I think it is very likely that the Supreme Court will take on a case challenging a state vaccine mandate that does not allow for a religious exemption, especially if the state allows for medical exemptions,” Ouellette said in an interview.
She noted that some justices have indicated that public health measures violate the First Amendment if they treat any secular activity more favorably than religious activity.
“Some people argue, and some lower court judges are holding that those cases require religious exemptions to vaccine mandates that include medical exemptions,” she said.