Maine to religious objectors: No jab, no job

Unvaccinated healthcare workers in Maine could lose their jobs after a divided U.S. Supreme Court last week declined to block temporarily a state COVID-19 vaccine mandate that permits no religious exemptions. The decision suggests a majority of the court is not yet ready to take up this contentious issue.

Friday’s ruling split the court’s conservative majority. Justices Amy Coney Barrett and Brett Kavanaugh voted to deny emergency relief to healthcare workers who sued the state and several major hospital systems. Barrett, in a brief opinion joined by Kavanaugh, noted the lack of full briefing and oral argument at the case’s early juncture.

Justice Neil Gorsuch’s dissenting opinion, joined by Justices Clarence Thomas and Samuel Alito, pointed to the stakes for the physician and eight healthcare workers who sought relief. “No one questions that these individuals have served patients on the front line of the COVID-19 pandemic with bravery and grace for 18 months now,” Gorsuch wrote. “Yet, with Maine’s new rule coming into effect, one of the applicants has already lost her job for refusing to betray her faith; another risks the imminent loss of his medical practice.”

The 1990 Supreme Court ruling in Employment Division v. Smith permitted a law to burden religious liberty as long as it was neutral and generally applicable. But Gorsuch argued Maine’s law failed the test because it does offer an exemption if a doctor says a shot is “medically inadvisable.”

“It seems Maine will respect even mere trepidation over vaccination as sufficient, but only so long as it is phrased in medical and not religious terms,” he wrote, saying the double standard triggered “strict scrutiny” of the law.

The conservative justice also criticized the state’s rationale for requiring 90 percent of its healthcare workers to be vaccinated, noting many other states had met their health and safety objectives while offering religious exemptions. “Maine’s decision to deny a religious exemption in these circumstances doesn’t just fail the least restrictive means test, it borders on the irrational,” he concluded.

The court’s decision does not end the case. Liberty Counsel indicated it would file a petition asking the court to review the merits of the case, not just the question of whether to block the mandate. The court could fast-track briefing and oral arguments.

Three states—Maine, New York, and Rhode Island—have vaccine mandates that allow no religious exemptions, and litigation has yielded mixed results. A federal court in Rhode Island is considering a motion to block the state’s mandate until a case there can be heard. A federal appeals court on Friday reinstated a New York vaccine mandate after a court blocked it. That ruling does not bode well for the Rhode Island appeal.

For healthcare workers in Maine, a hoped-for ruling by the Supreme Court may come too late. MaineHealth CEO Andy Mueller told WMTW-TV in Portland that between 350 and 400 employees had not received their vaccine and were expected to be terminated after the mandate went into effect last Friday. That included Jackie Zubiate, a nurse practitioner who heads up the 2,600-member Coalition for Health Care Workers Against Medical Mandates.