Federal judge to decide whether Janet Mills’ COVID-19 vaccine mandate is constitutional

Bangor Daily News | by Judy Harrison | September 20, 2021

A federal judge will decide whether Maine’s mandate that health care workers be vaccinated or lose their jobs violates the U.S Constitution because it does not include a religious exemption.

U.S. District Court Judge Jon Levy on Monday heard oral arguments on a motion for a preliminary injunction that, if approved, would keep the mandate from going into effect on Oct 1.

He expressed concern that granting the injunction would overturn a 2019 law that ended religious and philosophical exemptions for all vaccines required for school children as well as other vaccination requirements for health care workers.

The Liberty Counsel, which also represents an Orrington church suing Gov. Janet Mills over state COVID-19 restrictions, claims it is representing more than 2,000 health care workers across the state in the lawsuit it filed last month in U.S. District Court in Bangor. While employees may obtain medical exemptions to the vaccine requirement, there is no religious or philosophical exemption in the policy.


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The religious organization argues that health care workers are protected from having to receive vaccinations they oppose for religious reasons under the Civil Rights Act of 1964. The policy also violates the First Amendment’s free exercise clause, Liberty Counsel said.

Attorneys for the state and hospitals pointed out that other vaccines have been required for health care workers since 2002 by the Maine Center for Disease Control. Since then, all health care facilities have been required to obtain and maintain their employees’ proof of immunization against a variety of communicable diseases, including but not limited to measles, mumps, chicken pox, and — more recently — influenza, according to lawyers representing the state and hospitals.

The Legislature in 2019 removed vaccine exemptions for all but medical reasons for school children. That law survived a people’s veto attempt at the ballot box in March 2020, and the new rules — which have been written to apply to the COVID-19 vaccine — took effect this month.

Levy asked during arguments Monday whether he would invalidate the 2019 law if he granted the Liberty Counsel’s request to halt the implementation of the state’s vaccine mandate for health care workers.

“I don’t understand how I get to the conclusion you want without invalidating the rule that added a COVID-19 vaccine to the list of required vaccines?” he said. “How do I get to a more limited decision?”

The plaintiff’s attorney, Daniel Schmid, said that workers who object to other kinds of vaccines, such as the flu, could bring legal action themselves. The case before Levy is challenging just the COVID-19 vaccine mandate.

Assistant Attorney General Kimberly Patwardhan disagreed.

“I think that would be the ultimate effect,” she said of a ruling in favor of the plaintiffs.

Attorneys for the Liberty Counsel told the judge that Maine stands alone nationally in not allowing a religious exemption for vaccines. Schmid argued that the Veterans Administration, which has a facility in Augusta, allows for a religious exemption, so the state could turn to it for advice on how to implement one.

He also said that accommodations for health care workers who have religious objections to the COVID-19 vaccine could be required to wear personal protective equipment and be tested instead.

“The state has no demonstrable proof that that can’t work here as well,” he said.

Schmid also said that the impact of the vaccine mandate means health care workers will not be able to work in their field in Maine.

“The governor has mandated that they either take the vaccine or take a hike,” he said.

Portland attorney James Erwin, who represents a large health care organization in southern Maine, said that was not true and that health care workers could take jobs with private physicians not associated with large hospitals or organizations.

Levy said that he would issue a ruling quickly given the vaccine deadline but did not say exactly when it would be ready.

Government defendants in the lawsuit are Mills and officials at the Maine Department of Health and Human Services, which includes the Maine Center for Disease Control and Prevention. Some of Maine’s hospital systems are also defendants, including Northern Light Health, MaineGeneral Health and MaineHealth. Genesis HealthCare, which runs a number of nursing homes in the state, is also a defendant.

A lawsuit against the health care worker vaccine requirement filed by the Alliance Against Health Care Mandates against the state’s top health officials is pending in Kennebec County Superior Court.

Source: https://bangordailynews.com/2021/09/20/news/federal-judge-debates-whether-reversing-mills-covid-19-vaccine-mandate-would-end-requirement-for-other-inoculations/?fbclid=IwAR2dAXcPo1FpP65d0Dm9m0rStnc0U-Rhl0HAbxowT249JbEXAxT_ba98JBQ