From the start, the lawsuit that challenges Maine’s vaccine mandate for health care workers appeared destined for the U.S. Supreme Court. Now, the plaintiffs are trying for the second time in less than a week to get the high court to intervene.

Nine unnamed workers sued the state in August to demand a religious exemption to the COVID-19 vaccine mandate. Federal judges at every level, including the Supreme Court, have so far declined to block the mandate on an emergency basis while that legal challenge proceeds. The 1st U.S. Circuit Court of Appeals dealt another blow to the plaintiffs Tuesday evening by affirming a lower court’s denial of a motion for a preliminary injunction.

“Few interests are more compelling than protecting public health against a deadly virus,” U.S. Circuit Judge Sandra Lynch wrote in the unanimous opinion. “In promulgating the rule at issue here, Maine has acted in response to this virus to protect its healthcare system by meeting its three goals of preventing the overwhelming of its healthcare system, protecting those most vulnerable to the virus and to an overwhelmed healthcare system, and protecting the health of all Maine residents.”

Liberty Counsel, the conservative group representing the plaintiffs, will now petition the Supreme Court to hear an appeal of that decision. In the meantime, it asked the court yet again for an emergency injunction.

“We have returned to the U.S. Supreme Court to obtain relief for these health care heroes against Governor Janet Mills’ illegal edict,” Mat Staver, the group’s founder and chairman, said in a news release. “There is no question that Gov. Janet Mills cannot nullify federal law and the First Amendment to the U.S. Constitution. All Maine health care workers have the legal right to request reasonable accommodation for their sincerely held religious beliefs.”

Maine officials said they would continue to defend the mandate in court. In a statement, Mills quoted Pope Francis saying getting vaccinated is “an act of love.”

“Anyone who is placed in the care of a health care worker has the right to expect – as do their families – that they will receive high-quality, safe care from fully vaccinated staff,” Mills said. “This rule protects health care workers, their patients, and our health care capacity in the face of this deadly virus. Just as vaccination defeated smallpox and vaccination defeated polio, vaccination is the way to defeat COVID-19. As Pope Francis said, getting vaccinated is an ‘act of love.’”

Health care workers needed to get their shots by Friday to be in compliance with the rule by Oct. 29. 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.

TEST CASE

The case tests the state law that repealed religious or philosophical exemptions for required inoculations for students and health care workers. 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. Only medical exemptions are allowed.

If the Supreme Court does take the case, those interested in the conservative shift on the bench will be watching it closely. The justices have recently signaled a greater sympathy to religious liberty arguments like the one made in this lawsuit.

The plaintiffs filed their lawsuit in the U.S. District Court of Maine in August. Last week, a judge there denied the motion for a preliminary injunction, which sought to prevent the governor from enforcing the mandate while the legal challenge was underway.

Liberty Counsel appealed that decision to the 1st Circuit. The plaintiffs also requested an injunction to stop the mandate while the appeal was pending, a request the 1st Circuit denied. So Liberty Counsel asked the Supreme Court to take that emergency step, and on Tuesday, Associate Justice Stephen Breyer denied their application.

However, Breyer said the plaintiffs could try to get the Supreme Court to take the case again once the 1st Circuit ruled on the underlying appeal. The 1st Circuit did so on Tuesday evening, just hours after Breyer issued his denial.

So Liberty Counsel filed another application for an injunction Wednesday. They also said they would file a petition that asks the justices to hear their appeal on the motion for the preliminary injunction. The court does not have a timetable to respond but will likely do so quickly because Mills will start enforcing the mandate Oct. 29.

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