A federal judge has decided that Maine does not have to allow health care workers to opt out of its COVID-19 vaccine mandate for religious reasons, the first major ruling in a case that could be bound for the nation’s highest court.

Nine unnamed workers sued the state to demand such an exemption. On Wednesday, U.S. District Judge Jon Levy denied their motion for a preliminary injunction, which would have temporarily blocked the mandate from taking effect while the lawsuit proceeds.

That means health care workers still need to get inoculated by Friday to comply with state rules. A person who gets the Johnson & Johnson shot is fully vaccinated two weeks later, and Gov. Janet Mills has said she will start enforcing the mandate Oct. 29.

“Maine may be one of the first states to conclude that it is wise to mandate vaccinations for certain health care workers, but it does not follow that other, less demanding approaches are equally effective or even appropriate given the circumstances presented in this state,” Levy wrote in his order.

Liberty Counsel, the conservative group that represents the plaintiffs, has already filed a notice of appeal. They argued that Maine needs to offer a religious exemption because it offers a medical one. The rule treats people who seek a religious exemption less favorably, they said, and therefore violates their right to freely practice their religion.

The state argued that the two types of exemptions aren’t comparable and shouldn’t be viewed in the same way under the law. Maine stopped accepting religious and philosophical exemptions to all mandatory vaccines in order to protect people who could not get those shots because of their medical conditions. The Attorney General’s Office said that reasoning still applies.

Levy agreed.

“Reducing the risk of adverse medical consequences for a high-risk segment of the population is essential to achieving the public health objective of the vaccine mandate,” he wrote. “A religious exemption would not address a risk associated with the vaccine mandate’s central objectives.”

Dr. Imad Durra receives a shot of the COVID-19 vaccine on Dec. 16, 2020, from nurse Deb Kiker at Central Maine Medical Center in Lewiston. The infectious-disease doctor was the first at CMMC to receive a dose. Daryn Slover/Sun Journal

In Maine, the governor’s office has estimated that the mandate will apply to more than 150,000 workers at hospitals, clinics, group and nursing homes, dental offices, EMS agencies and other state-licensed health care facilities. The state published new data Wednesday that shows COVID-19 vaccination rates increased in September among Maine health care workers, surpassing 91 percent in hospitals and 85 percent in nursing homes.

Maine Attorney General Aaron Frey applauded the ruling and encouraged people to get vaccinated.

“We are pleased with the decision and will continue to vigorously defend the requirement that health care workers in Maine be vaccinated against COVID-19,” Frey said in a written statement. “Getting vaccinated is a simple and commonsense thing you can do to protect not only yourself, but also your loved ones, co-workers, and the community.”

Liberty Counsel, which is based in Florida, promised to keep fighting the mandate. Its news release after the ruling highlighted an example from court documents: one nurse got a religious exemption under the federal mandate that applies at the Veterans Affairs facility in Augusta, but was fired from her per diem job at a nearby nursing home where that option wasn’t available under the state mandate.

The lawsuit says the plaintiffs’ objections to the vaccine are rooted in scripture and in a rejection of any medicine or procedure developed with or aided by the use of fetal tissue. They are seeking class-action status.

“Governor Mills is clearly discriminating against health care workers with sincerely held religious beliefs. She cannot override federal law and dictate that they must inject an experimental substance into their bodies,” Mat Staver, Liberty Counsel’s chairman and founder, said in the release. “The Constitution does not disappear across state lines. All Maine health care workers have the legal right to request reasonable accommodation for their sincerely held religious beliefs, and forcing COVID shots without exemptions is unlawful.”

The Biden administration has announced a sweeping vaccine mandate that is sure to face legal challenges. Other states are requiring some or all health care workers to get inoculated against COVID-19. Just as policies and exemptions vary across the country, so does the response from the courts.

In Rhode Island, a federal judge denied a request to block a vaccine mandate without religious exemptions. Levy mentioned that case in a footnote in his order.

In New York, a different federal judge said the state must allow employers to offer religious exemptions while a similar lawsuit is pending. In his order, Levy said that case differed from the one in Maine because the state offers religious exemptions for other vaccines and only removed that option for COVID-19 shots a few days before its mandate took effect.

The Maine case tests the state law that repealed religious or philosophical exemptions for required inoculations for students and health care workers. The Legislature decided in 2019 that only medical exemptions would be allowed for those shots, and that change survived a referendum challenge the following year. This year, Mills added the COVID-19 vaccine to those already required for health care workers, which include shots against chicken pox and the common flu.

In his order, Levy said he did not see any evidence that the Legislature intended to discriminate against religious beliefs or practices. For example, he cited testimony about the rate of pertussis in Maine, which was the worst in the nation at the time the Legislature was considering that bill.

“The record establishes that the Maine Legislature’s object in eliminating the religious and philosophical exemptions in 2019 was to further crucial public health goals, and nothing more,” Levy wrote.

The motion for a preliminary injunction will now go to the 1st U.S. Circuit Court of Appeals in Boston. If that court lets Levy’s order stand, it could take on broader significance in light of a conservative shift on the U.S. Supreme Court. The justices have recently signaled a greater sympathy to religious liberty arguments.

Vaccine mandates have long been accepted under the law. In 1905, the Supreme Court upheld a Massachusetts law that allowed cities to require people to get smallpox vaccinations and fine those who did not.

Experts say religious exemptions to such mandates have been allowed but are not constitutionally required. A 1990 Supreme Court rulingupheld Oregon’s ban on peyote, even in Native American religious rituals. The court said then that the state’s general ban did not violate the U.S. Constitution because it did not specifically target religion. That concept has stood for years.

In April, however, the Supreme Court blocked a California rule that restricted at-home gatherings during the pandemic, which had curtailed Bible study and prayer meetings. If the state makes exceptions for secular activities such as eating inside a restaurant, the court said, it also must do so for comparable religious activities.

In June, the court said Philadelphia could not refuse to use Catholic Social Services as a foster care provider after the group banned same-sex couples as foster parents. The justices kept their opinion narrow, but three conservatives said they would like to overturn that precedent from 1990.

Levy considered those opinions in his order but still rejected the need for a religious exemption. He said the medical exemption serves a public health purpose and does not reflect a value judgment that unfairly favors secular interests over religious ones. He also said it does not actually force people to get vaccinated against their will, even though they could lose their jobs by refusing. And he said the state had demonstrated that alternatives, such as weekly or daily testing, would be less effective than the vaccine in the face of the highly contagious delta variant.

“In this case, the Plaintiffs – healthcare workers and a healthcare provider – have shown that their refusal to be vaccinated based on their religious beliefs has resulted or will result in real hardships as it relates to their jobs,” Levy wrote in his order. “They have not, however, been prevented from staying true to their professed religious beliefs which, they claim, compel them to refuse to be vaccinated against COVID-19. Neither have they seriously challenged the compelling governmental interest in mandating vaccinations for Maine’s healthcare workers, nor have they demonstrated that, as they contend, the vaccine mandate was motivated by any improper animus toward religion.”

The Mills administration is facing another lawsuit in state court over the vaccine mandate. That case is pending.

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