First Circuit Upholds Maine Vaccine Mandate

October 25, 2021

The State of Maine is the winner of the latest round in the battle over COVID vaccine mandates.  On October 19, the First Circuit refused to strike down a regulation that requires Maine health care workers to be vaccinated against COVID-19.

What is interesting about the decision was that the regulation did NOT contain a religious exemption.  There was only one exemption – for medical reasons – if a medical practitioner certified that the vaccination was “medically inadvisable.”  In that way, the COVID vaccination rule was consistent with Maine’s vaccine law that requires health care workers to be vaccinated for a variety of other diseases, including measles, mumps, rubella, chickenpox, and influenza.  That law was amended in 2019 to remove the religious and philosophical exemptions for these other vaccinations, and leave in only a medical exemption.  Maine overwhelmingly approved this change in 2019, with nearly 75% of voters rejecting a referendum to veto the removal of the religious exception.

But when Maine passed the COVID vaccine rule treating COVID vaccines the same way other vaccines had been treated since 2019, the rule was challenged.  Health care workers asserted, among other things, that the Free Exercise clause of the Constitution was violated because there was no religious exemption.  They argued that their religious beliefs prohibited them from taking the COVID vaccine which they claimed was developed “using cells ultimately derived from an aborted fetus.”

The First Circuit found their claims unavailing, ultimately finding that public health considerations which drove the vaccine requirement served a legitimate and compelling state interest that warranted upholding the mandate.  Here is why the court ruled the way it did:

o  Demographics. Evidence established that Maine was particularly vulnerable to COVID-19 because of the large percentage of its population aged 65 or older.  Moreover, the size of Maine’s health care workforce was limited such that the impact of outbreaks would be far greater than in a state with a more extensive health care delivery system.

o  Nature of the Diseases and the Work. The delta variant which was dominant in Maine at the time, was more than twice as contagious as previous coronavirus variants and therefore was more likely to cause more severe illness to Maine citizens.  Moreover, health care facilities were uniquely susceptible to outbreaks of infectious diseases like COVID-19 because medical diagnosis and treatment require close contact between providers and patients, and the patients are often medically vulnerable.

0  Failure of Alternatives. Before passing the COVID vaccine requirement, Maine considered other measures to address the COVID crisis in its healthcare facilities, including testing (weekly and daily), exempting for individuals who already had COVID-19, and relying on PPE.  The state also tried alternatives to increasing the vaccination levels of its health care workers, including vaccine prioritization, worksite vaccine administration and prizes.  But ultimately the state concluded that no available alternatives to mandatory vaccination would allow it to adequate protect its healthcare infrastructure and residents.   None were sufficient to achieve the 90% vaccination rate required to health community transmission of the delta variant.

o  General Applicability. The COVID vaccine requirement applied equally across the board and did not single out religious objectors because of their religious belief.  The Court also pointed out that the state’s vaccination law which mandated a variety of vaccines other than COVID was amended in 2019 to remove not just the religious exemption but also a philosophical exemption.  In that way, the vaccination requirement for COVID-19 was being handled the exact same way as other vaccination requirements which had for years been applied with only a medical exemption, but none for religious views.

o  Government Interest Served. The Free Exercise Clause is not absolute.  It must be balanced against a state’s interest.  Maine’s articulated interests for the COVID-19 vaccine were: 1) ensuring health care workers remain healthy and able to provide care in an overburdened system, 2) protecting the health of the most vulnerable from a deadly virus, and 3) protecting the health and safety of all Mainers.  The Court found that none of these interests were undermined by exempting from the requirement only those whose health would be endangered by the vaccine, but not those with religious objections to the vaccine.

o  Distinguishable from Unconstitutional COVID Orders. Maine’s vaccine mandate was different for example from other state orders that had been found unconstitutional, including orders made early on in the pandemic prohibiting religious gatherings while allowing secular activities involving commerce and entertainment.  In those cases, the activities that the state continued to allow posed a similar risk to physical health (by risking spread of virus) as the prohibited religious activities.  By contrast, Maine’s rule applied only one exemption for people whose physical health would be at risk if they took the vaccine.  Maine’s asserted interests were served by this exemption in a way that they would not be if religious objectors were exempted.  To be clear, a religious exemption would not advance Maine’s interest in protecting the health of Mainers whereas the medical exemption did.  For that reason, the different treatment did not show bias against religion and was permissible, according to the Court.

So, what can we learn from this case going forward?

The Court’s analysis clearly demonstrates that no Constitutional right is absolute.  It must be balanced against a state’s interests, which in the instance of vaccine mandates, is to protect public health.  As the First Circuit noted “few interest are more compelling than protecting public health against a deadly virus.”  But that does not mean this is the end of the debate.

The very fact that the COVID vaccine mandate was challenged demonstrates the politicization of COVID generally, and its vaccine mandates in particular.  How else do you explain that before anyone had heard of COVID, the vast majority (75%) of voters approved of removing a religious exemption to the state’s vaccine requirement for health care workers?  It was only once that same rule was applied to COVID that the lack of exemption became an issue.

Given how strongly people feel on the issue, this case and others will likely be appealed to the Supreme Court.  And the lack of a religious exemption certainly presents a viable basis for the Court to strike the law done.

But the Court’s holding arguably has limited applicability because it was highly fact-specific.  It is easy to imagine how a Court might rule differently if for example the vaccine mandate related to retail workers or office staff who are not in the medical field working closely with vulnerable patients and in an industry over-burdened by the pandemic.  A shift in the rate of vaccination or the rate of community transmission, or improved effectiveness of alternative safeguards might also affect the outcome of another case where a vaccine mandate is challenged.

With that said, any case challenging vaccine mandates faces an uphill battle as there is well-settled precedent permitting them.  Private employers in particular are much freer than state governments to establish vaccination rules as constitutional rules do not apply to them.

As has been true throughout the pandemic, we will have to monitor the ongoing developments when public health, politics and the law collide.