Court filing
Application - Scotus
Full text
No. 21A90
IN THE
Supreme Court of the United States
JANE DOES 1-6, JOHN DOES 1-3, JACK DOES 1-1000, and JOAN DOES 1-1000
Plaintiffs-Applicants
v.
JANET T. MILLS, Governor of the State of Maine, JEANNE M. LAMBREW, Commissioner
of the Maine Department of Health and Human Services, DR. NIRAV D. SHAH,
Director of the Maine Center for Disease Control and Prevention, MAINEHEALTH,
GENESIS HEALTHCARE OF MAINE, LLC, GENESIS HEALTHCARE, LLC, NORTHERN LIGHT
FOUNDATION, and MAINEGENERAL HEALTH
Defendants-Respondents.
OPPOSITION OF STATE RESPONDENTS TO EMERGENCY
APPLICATION FOR WRIT OF INJUNCTION
AARON M. FREY
Attorney General, State of Maine
THOMAS A. KNOWLTON
Deputy Attorney General
Chief, Litigation Division
KIMBERLY LEEHAUG PATWARDHAN*
Assistant Attorney General
VALERIE A. WRIGHT
Assistant Attorney General
kimberly.patwardhan@maine.gov
6 State House Station
Augusta, Maine 04333-0006
207-626-8570
October 25, 2021 * Counsel of Record
Counsel for Janet T. Mills, Jeanne M. Lambrew, and Nirav D. Shah
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................... ii
PRELIMINARY STATEMENT ..................................................................................... 1
STATEMENT OF THE CASE....................................................................................... 3
ARGUMENT ................................................................................................................ 14
I. APPLICANTS ARE NOT LIKELY TO SUCCEED ON THE MERITS OF
THEIR FREE EXERCISE CLAIM ................................................................ 15
A. The Rule and the Statute are neutral laws of general
applicability that are valid under rational basis review ...................... 15
1. Neutrality ....................................................................................... 16
2. General applicability ...................................................................... 18
3. Comparability ................................................................................. 20
4. Value judgment .............................................................................. 24
5. Rational basis review ..................................................................... 26
B. The Rule and the Statute are narrowly tailored to achieve
the State’s compelling interests............................................................. 26
C. Applicants’ other arguments are meritless ........................................... 31
II. APPLICANTS ARE NOT LIKELY TO SUCCEED ON THE MERITS OF
THEIR SUPREMACY CLAUSE CLAIM ...................................................... 32
III. THE REMAINING FACTORS SUPPORT DENYING THE
APPLICATION ............................................................................................... 34
A. Irreparable harm, balance of hardships, public interest ...................... 34
B. The First Circuit’s decision is not certworthy ....................................... 36
CONCLUSION............................................................................................................. 39
i
TABLE OF AUTHORITIES
Cases
Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015) ................................ 32
Ashcroft v. ACLU, 542 U.S. 656 (2004) ................................................................. 28, 31
Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004) .......................................... 25
Brown v. Stone, 378 So. 2d 218 (Miss. 1979) .............................................................. 37
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) ......................................... 32
California Fed. Sav. and Loan Ass’n v. Guerra, 479 U.S. 272 (1987) ....................... 33
Calvary Chapel of Bangor v. Mills, 984 F.3d 21 (1st Cir. 2020) .................................. 2
Cantwell v. Connecticut, 310 U.S. 296 (1940) ............................................................. 15
Cassell v. Snyders, 990 F.3]d 539 (7th Cir. 2021)....................................................... 35
Castillo v. Whitmer, 823 F. App’x 413 (6th Cir. 2020) ............................................... 36
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993)................................................................................... 16, 18, 19, 2
City of Boerne v. Flores, 521 U.S. 507 (1997) .............................................................. 32
City of New Braunfels v. Waldschmidt, 207 S.W. 303 (Tex. 1918) ............................ 38
Cunningham v. City of Shreveport, 407 F. Supp. 3d 595 (W.D. La. 2019) ................ 25
Dahl v. Bd. of Trs. of W. Mich. Univ., -- F.4th ---, No. 21-2945,
2021 WL 4618519 (6th Cir. Oct. 7, 2021) ................................................................ 20
Davis v. Maryland, 451 A.2d 107 (Md. 1982) ............................................................. 37
Dr. A. v. Hochul, No. 1:21-cv-1009, 2021 WL 4734404
(N.D.NY. Oct. 12, 2021) ................................................................................ 17, 18, 31
Emp’t Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872 (1990) ............ 15, 16, 36
Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,
170 F.3d 359 (3d Cir. 1999) .......................................................................... 23, 24, 25
Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021) ................................... 12, 16, 20
ii
Jacobson v. Massachusetts, 197 U.S. 11 (1905) .................................................... 26, 36
Litzman v. N.Y City Police Dep’t, No. 12 Civ. 4681,
2013 WL 6049066 (S.D.N.Y. Nov. 15, 2013) ............................................................ 25
Lux v. Rodrigues, 561 U.S. 1306 (2010) ...................................................................... 14
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) ................. 20
McCullen v. Coakley, 573 U.S. 464 (2014) .................................................................. 28
Mosier v. Barren Cnty. Bd. of Health, 215 S.W.2d 967 (Ky. 1948) ............................ 38
Nikolao v. Lyon, 875 F.3d 310 (6th Cir. 2017) ............................................................ 36
Nken v. Holder, 556 U.S. 418 (2009) ........................................................................... 15
Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U.S. 1312 (1986) ................ 14
Phillips v. City of New York, 775 F.3d 538 (2d Cir. 2015).......................................... 37
Prince v. Massachusetts, 321 U.S. 158 (1944)............................................................. 36
Respect Maine PAC v. McKee, 562 U.S. 996 (2010) .................................................... 14
Resurrection Sch. v. Hertel, 11 F.4th 437 (6th Cir. 2021) .......................................... 24
Robinson v. Children’s Hospital Boston, No. 14-10263-DJC,
2016 WL 1337255 (D. Mass. Apr. 5, 2016) .............................................................. 33
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) ...... 13, 22, 26, 27
Sadlock v. Bd. of Ed., 58 A.2d 218 (N.J. 1948) ........................................................... 38
Sherbert v. Verner, 374 U.S. 398 (1963) ................................................................ 12, 20
Singh v. McHugh, 185 F. Supp. 3d 201 (D.D.C. 2015) ............................................... 25
South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021) ........... 13, 22
Tandon v. Newsom, 141 S. Ct. 1294 (2021) .............................................. 13, 20, 22, 23
Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707 (1981) ............................... 28
United States v. Lee, 455 U.S. 252 (1982) ................................................................... 16
Valente v. Bd. of Env’tl Prot., 461 A.2d 716 (Me. 1983) ............................................. 30
iii
W.D. v. Rockland Cnty., 521 F. Supp. 3d 358 (S.D.N.Y. 2021) .................................. 26
Ware v. Valley Stream High Sch. Dist., 550 N.E.2d 420 (N.Y. 1989) ........................ 27
We the Patriots v. Hochul, No. 21-2179 (2d Cir. Oct. 1, 2021) ................................... 18
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ..................................... 15
Workman v. Mingo Cnty. Bd. of Educ., 419 F. App’x 348 (4th Cir. 2011) ........... 27, 37
Wright v. DeWitt School Dist., 385 S.W.2d 644 (Ark. 1965)....................................... 37
Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014)................................................. 25
Zucht v. King, 260 U.S. 174 (1922) ............................................................................. 36
Constitutions and Statutes
U.S. Const. amend. I .................................................................................................... 15
42 U.S.C.A. §§ 2000bb to 2000bb-4 ............................................................................. 32
Me. Const. art. IV, pt. 3, § 17, cl. 1................................................................................ 1
Me. Rev. Stat. Ann. tit. 5, § 8054 (2013) ....................................................................... 9
Me. Rev. Stat. Ann. tit. 20-A, § 6355 ....................................................................... 2, 4
Me. Rev. Stat. Ann. tit. 22, § 802(4-B) ...................................................... 1, 2, 4, 17, 19
Other Authorities
1989 Me. Laws 644 .................................................................................................... 1, 3
2001 Me. Laws 147 ........................................................................................................ 4
L.D. 798 (129th Legis. 2019) ..................................................................................... 4, 5
Stephen M. Shapiro et al., Supreme Court Practice § 17.13(b) (10th ed. 2013) ........ 14
Maine Secretary of State:
https://www.maine.gov/sos/cec/elec/results/index.html ............................................ 5
WHO Coronavirus (COVID-19) Dashboard, World Health Organization
(updated Oct. 22, 2021),
https://covid19.who.int/ .............................................................................................. 5
iv
CDC Covid Data Tracker: United States at a Glance, United States Centers for
Disease Control and Prevention (updated Oct. 23, 2021),
https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days ................. 6
COVID-19: Maine Data, Maine CDC (updated Oct. 23, 2021),
https://www.maine.gov/dhhs/mecdc/infectious-
disease/epi/airborne/coronavirus/data.shtml............................................................. 6
Maine CDC, Maine Health Care Worker COVID-19 Vaccination Dashboard,
https://www.maine.gov/dhhs/mecdc/infectious-
disease/immunization/publications/health-care-worker-covid-vaccination-
rates.shtml .................................................................................................................. 9
v
PRELIMINARY STATEMENT
Requiring health care workers to be vaccinated against highly communicable
diseases has a long history in Maine. Maine has mandated that hospitals and other
healthcare facilities require their employees to be vaccinated against several highly
communicable diseases since 1989. See 1989 Me. Laws 644 (requiring employees of
hospitals to be vaccinated against measles and rubella). Since 2002, the required
vaccinations for healthcare workers have been designated by rule in state regulations
adopted by the Maine Department of Health and Human Services (Department) and
the Maine Center for Disease Control and Prevention (Maine CDC). In contrast, the
exemptions to the vaccination requirements are provided in statute: ME. REV. STAT.
ANN. tit. 22, § 802(4-B) (Supp. 2021) [hereinafter, “the Statute”].
In 2019, the Maine Legislature eliminated all nonmedical vaccination
exemptions (religious and philosophical) for healthcare workers, daycare employees,
schoolchildren, and college students—more than a year before the COVID-19
pandemic began. (R.A. 22-23.) 1 This change was the direct result of falling
vaccination rates within the State and the concomitant rising risk of communicable
diseases spreading amongst the general population and particularly vulnerable
populations, including those who are medically unable to be vaccinated. The only
exemption currently provided in the Statute is a medical exemption: “A medical
exemption is available to an employee who provides a written statement from a
1 The Maine Legislature voted on this legislation in May of 2019, but the law did not become effective
until April 19, 2020, 30 days after Governor Mills issued a proclamation announcing the law had been
ratified by the Maine electorate in a statewide referendum. Me. Const. art. IV, pt. 3, § 17, cl. 1.
(R.A. 24.)
1
licensed physician, nurse practitioner or physician assistant that, in the physician’s,
nurse practitioner’s or physician assistant’s professional judgment, immunization
against one or more diseases may be medically inadvisable.” 2 ME. REV. STAT. ANN.
tit. 22, § 802(4-B)(A)
Between 2019 and today, the worldwide COVID-19 pandemic has gripped the
country and the State of Maine, and Maine state officials accordingly have responded
to protect Maine citizens. See, e.g., Calvary Chapel of Bangor v. Mills, 984 F.3d 21,
30 (1st Cir. 2020) (dismissing appeal of challenge to COVID-related gathering limits
in houses of worship), cert. denied, -- S. Ct. ---, 2021 WL 4507640 (Oct. 4, 2021).
On August 12, 2021, the Department and Maine CDC promulgated an
emergency amendment to its healthcare worker vaccination rule to require certain
healthcare facilities to require their employees to be vaccinated fully against COVID-
19. Immunization Requirements for Healthcare Workers, 10-144-264 ME. CODE R.
§ 2(A)(7) (2021) [hereinafter, the “Rule”]. (R.A. 74-81.) The Rule requires these
healthcare facilities to comply by October 1, 2021, but the Department and Maine
CDC will not enforce the Rule until October 29, 2021. (R.A. 59.)
The pseudonymous Applicants are nine healthcare workers whose “sincerely
held religious beliefs compel them to abstain from obtaining or injecting any of [the
available COVID-19 vaccines] into their bod[ies], regardless of perceived benefit or
2 The language of the medical exemption for healthcare workers is nearly identical to the medical
exemption for schoolchildren, which precludes a student’s enrollment or attendance at Maine schools
unless “[t]he parent or the child provides a written statement from a licensed physician, nurse
practitioner or physician assistant that, in the physician’s, nurse practitioner’s or physician assistant’s
professional judgment, immunization against one or more of the diseases may be medically
inadvisable.” ME. REV. STAT. ANN. tit. 20-A, § 6355(2) (Supp. 2021).
2
rationale.” (A.A. Ex. 6 at 20-21.) Applicants brought suit against Janet T. Mills,
Maine’s Governor, Jeanne M. Lambrew, the Department Commissioner, and Dr.
Nirav D. Shah, Maine CDC Director (collectively, “State Respondents”), and several
healthcare systems (“Hospital Respondents”), on August 25, 2021, in the United
States District Court for the District of Maine in order to require the State to provide
them with a religious exemption against vaccination.
On October 13, 2021, the district court denied Applicants’ preliminary
injunction motion, concluding that none of the injunctive relief factors supported
Applicants. (A.A. Ex. 5.) The United States Court of Appeals for the First Circuit
denied injunctive relief pending appeal on October 15, 2021, and then affirmed the
district court decision on October 19, 2021. (A.A. Exs. 1, 3.) On October 20, 2021,
Applicants filed this Application (App.) seeking injunctive relief from this Court
pending their petition for a writ of certiorari.
As explained more fully below, this Court should deny the application.
Applicants have failed to satisfy the demanding requirements for obtaining injunctive
relief from this Court in the first instance.
STATEMENT OF THE CASE
A. History of Mandatory Immunizations in Maine.
Since 1989, Maine has mandated that hospitals and other healthcare facilities
require their employees to be vaccinated against several highly communicable
diseases. 1989 Me. Laws 644 (requiring employees of hospitals to be vaccinated
against measles and rubella and providing medical and religious exemptions). In
3
2001, the mandatory vaccination requirements were moved from statute to rules
adopted by the Department. 3 2001 Me. Laws 147. In 2002, the Department
promulgated the Rule (R.A. 27-33), which required that designated healthcare
facilities (DHCFs) mandate immunizations against several diseases for their
employees. 4 (R.A. 28.)
From 2001 to 2019, Maine law provided three exemptions from vaccination
requirements required for healthcare workers: when vaccination was medically
inadvisable, contrary to a sincere religious belief, or contrary to a sincere
philosophical belief. ME. REV. STAT. ANN. tit. 22, § 802(4-B)(B) (2019); see also ME.
REV. STAT. ANN. tit. 20-A, § 6355 (2008) (providing same exemptions to vaccinations
for schoolchildren). By 2018, vaccination rates for required vaccinations for
healthcare workers and school children in Maine had fallen below the population-
wide rates of vaccination necessary to prevent the spread of those communicable
diseases. (R.A. 68-73, 10-20.)
Legislation thus was introduced in 2019 to eliminate nonmedical exemptions
from the State’s mandatory vaccination programs in order to protect public health.
(R.A. 7-9 (“L.D. 798”).) The rationale for requiring immunization against vaccine-
preventable diseases is the same in healthcare settings and schools: high vaccination
rates are necessary to prevent the spread of communicable diseases through the
population and among vulnerable populations, i.e., children and patients. (R.A. 47.)
3 A statutory exemption for sincere philosophical beliefs was added in the same legislation. 2001 Me.
Laws 147 (enacting ME. REV. STAT. tit. 22, § 802(4-B)(B)).
4 Those diseases were rubeola (measles), mumps, rubella (German measles), Hepatitis B, and varicella
(chickenpox). (R.A. 28.)
4
The purpose of L.D. 798 was to reverse the trajectory of Maine’s falling
vaccination rates; prevent communicable, preventable diseases from spreading in
schools, healthcare facilities, and daycare facilities; and protect persons who are
unable to be vaccinated for medical reasons. 5 (R.A. 10-12.) Ultimately, in May of
2019, the Maine Legislature voted to eliminate nonmedical exemptions to vaccination
requirements for healthcare workers and schoolchildren and likewise mandated the
removal of nonmedical exemptions from all Department vaccination requirements.
(R.A. 21-23.) The law was the subject of a statewide people’s veto referendum on
March 3, 3020 (R.A. 24); 72.8% of Maine voters approved the 2019 amendment to the
Statute. 6 In order to comply with the statutory change, the Department removed
nonmedical exemptions from the Rule in April 2021. (R.A. 64.)
B. The COVID-19 Pandemic, COVID-19 Vaccinations, and the Rule.
For the last 20 months, the world has contended with the worldwide COVID-
19 pandemic. COVID-19 is a respiratory illness caused by a virus (SARS-CoV-2) that
spreads when an infected person exhales droplets and very small aerosol particles
that contain the virus. (R.A. 35, 36.) All variants of the COVID-19 virus exhibit
asymptomatic transmission, meaning an infected person can spread the virus
without noticing any symptoms. (R.A. 37, 38.)
5 In the course of the Maine Legislature’s consideration of L.D. 798, the Joint Standing Committee on
Education and Cultural Affairs heard testimony from hundreds of Mainers, in support of, in opposition
to, and neither for nor against the bill. (R.A. 1.). The bill, as amended, was also the topic of significant
debate and discussion on the floors of both the Maine House and Senate. (R.A. 4-5.)
6 Full results of the March 3, 2020, election are available on the website of the Maine Secretary of
State: https://www.maine.gov/sos/cec/elec/results/index.html.
5
As of October 22, 2021, there have been approximately 242 million confirmed
cases of COVID-19 and 4.92 million deaths from COVID-19 worldwide. 7 As of October
23, 2021, there have been approximately 45 million confirmed cases of COVID-19 and
733,000 deaths from COVID-19 in the United States. 8 As of October 23, 2021, there
have been 100,937 total confirmed cases of COVID-19 in Maine, including 1,122
deaths from COVID-19. 9
Fortunately, three COVID-19 vaccines have been authorized for use by the
Food and Drug Administration (FDA), and they are highly effective at preventing
infection with COVID-19. 10 (R.A. 40-41.) The first COVID-19 vaccine doses in Maine
were administered on December 14, 2020. (R.A. 41.) In the interest of preserving
Maine’s health system capacity, Maine CDC prioritized eligibility for those first doses
to frontline healthcare professionals and patient-facing staff in, among other places,
hospitals, long-term care facilities, emergency medical services, physician practices,
and dental practices. (R.A. 52-53.)
7 WHO Coronavirus (COVID-19) Dashboard, World Health Organization (updated Oct. 22, 2021),
https://covid19.who.int/.
8 CDC Covid Data Tracker: United States at a Glance, United States Centers for Disease Control
and Prevention (updated Oct. 23, 2021), https://covid.cdc.gov/covid-data-
tracker/#cases_casesper100klast7days.
9 See COVID-19: Maine Data, Maine CDC (updated Oct. 23, 2021),
https://www.maine.gov/dhhs/mecdc/infectious-disease/epi/airborne/coronavirus/data.shtml. In a mere
seven weeks, there have been 19,760 more cases of and 153 more deaths from COVID-19 in Maine.
(See R.A. 36.)
10 Months before the COVID-19 vaccines were available, the Department and Maine CDC worked
with hospitals, healthcare providers, health centers, and many others to develop a plan to facilitate
distribution and administration of any COVID-19 vaccine that received authorization or approval from
the FDA. (R.A. 50.) The Department and Maine CDC also hosted weekly COVID-19 vaccine
information sessions on, among other topics, the science of vaccines; methods for addressing vaccine
hesitancy; and patient conversations. (R.A. 51, 52.)
6
Given the length of the pandemic, several variants of SARS-CoV-2 have
emerged over time, including the highly contagious Delta variant. (R.A. 37.) The
Delta variant is more than twice as contagious as previous variants and may cause
more severe illness than previous variants in unvaccinated people. (R.A. 37.)
Individuals infected with the Delta variant carry a much higher viral load, making
the virus far more contagious and allowing it to spread and multiply in a shorter time
period; an individual infected with the Delta variant can begin spreading it to others
within 24 to 36 hours of exposure. 11 (R.A. 37-38.)
The gold standard to prevent and stop the spread of communicable diseases,
including COVID-19, is vaccination. (R.A. 39.) Population-level immunity, or “herd
immunity,” is an epidemiological phenomenon whereby unvaccinated individuals are
protected against a communicable disease by virtue of being in a community with
sufficiently high rate of vaccination. (R.A. 38.) When immunization rates fall below
the necessary population-level rate of vaccination for a particular disease, both
vaccinated and unvaccinated individuals are at risk of infection, especially the most
vulnerable. (R.A. 40.) The level of vaccination required to achieve population
immunity varies with the contagiousness of the disease. (R.A. 38.)
In light of the Delta variant, epidemiological models suggest that at least 90%
of the population would need to be vaccinated against COVID-19 in order to achieve
population-level immunity. (R.A. 38.) Under prior models formulated on earlier
11The Delta variant was first identified in Maine via genomic sequencing on May 11, 2021. (R.A. 42.)
As of August 27, 2021, the Delta variant accounted for 96.7% of all positive COVID-19 samples
sequenced in Maine. (R.A. 42.)
7
variants of SARS-CoV-2, only around 70% of the population would have needed to be
vaccinated to achieve population-level immunity. (R.A. 38.)
Throughout the pandemic, Maine CDC has tracked statewide confirmed cases
of COVID-19, including cases amongst healthcare workers, and investigated
outbreaks of COVID-19, including in healthcare settings. Most healthcare facility
outbreaks in Maine are the result of healthcare workers bringing COVID-19 into the
facility. (R.A. 42.) On August 11, 2021, 4 of the 14 outbreaks then under investigation
by Maine CDC were occurring in healthcare facilities. (R.A. 42.) By September 3,
2021, 19 of the 33 COVID-19 outbreaks under investigation by Maine CDC were
occurring in healthcare facilities. (R.A. 42.)
After vaccines became available, Maine CDC started tracking the rate of
COVID-19 vaccination among the general population and among employees of
DHCFs. (R.A. 56-58.) For the monthly reporting period ending July 31, 2021, the
rate of COVID-19 vaccination among healthcare workers in certain DHCFs was as
follows:
Ambulatory Surgical Centers: 85.9%
Assisted Housing Facilities: 74.7%
Hospitals: 80.3%
Intermediate Care Facilities for Individuals with Intellectual Disabilities:
68.2%
Nursing Homes: 73.0% 12
12 For the monthly period that ended September 30, 2021, about 7 weeks after the emergency
amendment of the Rule went into effect, COVID-19 vaccination rates among healthcare workers in
certain DHCFs were as follows, indicating the effectiveness of the amendment:
Ambulatory Surgical Centers: 92.0%;
Assisted Housing Facilities: 88.0%;
Hospitals: 91.6%;
Intermediate Care Facilities for Individuals with Intellectual Disabilities: 84.3%; and
Nursing Homes: 85.8%.
8
(R.A. 43.) All facilities fell significantly below the minimum 90% threshold believed
to be needed to reduce the likelihood of facility-based outbreaks of the Delta variant
of COVID-19. (R.A. 43, 38.)
Based on these and other facts, Maine CDC determined that requiring COVID-
19 vaccinations for healthcare workers in certain high-risk settings was necessary to
protect public health, healthcare workers, patients, and Maine’s healthcare system
from the further spread of COVID-19. (R.A. 43-44.) Accordingly, the Department
and Maine CDC amended the Rule on an emergency basis to require DHCFs, Dental
Health Practices, and Emergency Medical Services (EMS) Organizations to require
their employees to be vaccinated against COVID-19. (R.A. 43.) Maine CDC
determined that these types of facilities and settings posed a higher risk for the
transmission of the virus that causes COVID-19 because of the patient populations
served and the types of care provided. (R.A. 43-45.)
In reaching the decision to amend the Rule, Maine CDC considered whether
there were other measures that might be appropriate. As discussed infra, those
options were considered, but would not have been as effective, or had been proven
ineffective, at stopping the spread of COVID-19 in facilities covered by the Rule. (R.A.
45-47.)
Because the Rule was amended on an emergency basis, the amended rule
became effective on August 12, 2021. ME. REV. STAT. ANN. tit. 5, § 8054 (2013). The
Maine CDC, Maine Health Care Worker COVID-19 Vaccination Dashboard, available at
https://www.maine.gov/dhhs/mecdc/infectious-disease/immunization/publications/health-care-
worker-covid-vaccination-rates.shtml
9
Rule requires compliance by October 1, 2021, but the Department and Maine CDC
will not enforce the Rule against covered facilities until October 29, 2021. (R.A. 59.)
C. Litigation underlying this Application.
1. Proceedings in the District Court
Applicants filed a five-count complaint on August 25, 2021, against State
Respondents and Hospital Respondents, along with a motion for temporary and
preliminary injunctive relief. (A.A. Exs. 6-7.) Seven Applicants are employed by
healthcare facilities subject to the Rule; one of the Applicants (John Doe 1) owns his
own practice subject to the Rule and employs the ninth Applicant (Jane Doe 6). (A.A.
Ex. 6 at 7-10.) None of the Applicants are State employees.
As to State Respondents, Applicants claim that the Rule violates their First
Amendment rights to free religious exercise and the Supremacy Clause and denies
them Equal Protection of the law under the Fourteenth Amendment and that State
Respondents conspired with the Hospital Respondents to abridge these rights by
adopting the Rule. (A.A. Ex. 6.) Applicants seek only injunctive relief against State
Respondents. (A.A. Ex. 6 at 1.)
The district court denied Appellants’ ex parte motion for a temporary
restraining order on August 26, 2021, and denied Applicants’ preliminary injunction
motion on October 13, 2021. (A.A. Ex. 5 at n.3 & 3.) With respect to Applicants’ Free
Exercise claim, the district court concluded that both the Rule and Statute were
neutral laws of general applicability that were subject to and passed rational basis
review. (A.A. Ex. 5 at 16-29.)
10
The court reasoned that both the Rule and the Statute were facially neutral
and that there was no evidence of animus towards religion in their adoption or
enactment. (A.A. Ex. 5 at 16-18.) The court also determined that the Statute and
Rule were generally applicable because the medical exemption “is rightly viewed as
an essential facet of the vaccine’s core purpose of protecting the health of patients
and healthcare workers, including those who, for bona fide medical reasons, cannot
be safely vaccinated.” (A.A. Ex. 5 at 27.) Having concluded the laws were neutral
and generally applicable, the court found that both the Rule and the Statute were
rationally related to the State’s legitimate interest in “[s]topping the spread of
COVID-19 in Maine, and specifically stemming outbreaks in designated healthcare
facilities to protect patients and healthcare workers.” (A.A. Ex. 5 at 28-29.)
The district court also analyzed the Rule and the Statute for constitutionality
using strict scrutiny review. (A.A. Ex. 5 at 29-34.) The court concluded not only that
the State’s interests were compelling, but also that the Rule and the Statute were
narrowly tailored to achieve those goals. (A.A. Ex. 5 at 32-34.) The court agreed with
State Respondents that these alternative measures were either not as effective, or
shown to be ineffective, to achieve the State’s interests. (A.A. Ex. 5 at 32-34.) The
court thus concluded that the Statute and the Rule passed muster under both
standards of constitutional review. (A.A. Ex. 5 at 34.)
Finally, the court concluded Applicants were unlikely to succeed on the merits
of their remaining claims and held that the remaining preliminary injunction factors
11
weighed against injunctive relief. (A.A. Ex. 5 at 37-40.) The district court denied the
motion and a motion for injunction pending appeal. (A.A. Ex. 5 at 40; A.A. Ex. 4.)
2. Proceedings in the Court of Appeals.
Applicants appealed to the United States Court of Appeals for the First Circuit
and filed a motion in the First Circuit for an injunction pending appeal. The First
Circuit panel denied the motion without argument on October 15, 2021 (A.A. Ex. 3),
and ordered expedited briefing on the merits.
On October 19, 2021, the First Circuit affirmed the decision of the district
court. The First Circuit examined the Rule, the Statute, and the measures State
Respondents had taken to achieve its stated interests and concluded that Applicants
were unlikely to succeed on the merits of their complaint. (A.A. Ex. 1 at 17, 30-31.)
On Applicants’ Free Exercise claim, the First Circuit concluded that the Rule
and Statute are neutral laws of general applicability, subject to rational basis review.
The court determined the medical exemption in the Statute was a generalized,
objective exception, thereby distinguishing it from the systems of individualized
exemptions at issue in Sherbert v. Verner, 374 U.S. 398 (1963), and Fulton v. City of
Philadelphia, 141 S. Ct. 1868 (2021). (A.A. Ex. 1 at 18-19.) The court also concluded
that the medical exemption did not undermine Maine’s stated interests:
(1) ensuring that healthcare workers remain healthy and able to provide
the needed care to an overburdened healthcare system; (2) protecting
the health of the those in the state most vulnerable to the virus --
including those who are vulnerable to it because they cannot be
vaccinated for medical reasons; and (3) protecting the health and safety
of all Mainers, patients and healthcare workers alike.
(A.A. Ex. 1 at 18.)
12
The court determined that the medical exemption in the Statute was
“meaningfully different” from other non-religious exceptions to other COVID-19
restrictions this Court has examined. See Tandon v. Newsom, 141 S. Ct. 1294, 1296
(2021) (per curiam); South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716
(2021) (mem.); Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020)
(per curiam). (A.A. Ex. 1 at 20-21.) Unlike the gathering limit exceptions addressed
in those cases, Maine’s medical exemption furthers its interests in protecting public
health and vulnerable populations, whereas a religious exemption does not. (A.A. Ex.
1 at 21.) The court thus concluded that as neutral and generally appliable laws, they
“easily satisfy[] rational basis review.” (A.A. Ex. 1 at 22.)
The court also determined that the Rule and the Statute passed muster under
strict scrutiny. The court examined the alternative measures the State had taken or
considered in order to achieve its goals and concluded they were inadequate. (A.A.
Ex. 1 at 6-9, 11-12, 22-25.) The court concluded: “In confronting the various risks to
its own population and its own healthcare delivery system, Maine’s rule does not
violate the Constitution.” (A.A. Ex. 1 at 30.)
Last, the court summarily rejected Applicants’ remaining arguments and
affirmed the district court’s findings on the remaining injunctive relief factors. (A.A.
Ex. 1 at 30-35.)
3. Proceedings in this Court.
On October 15, 2021, while the First Circuit appeal was pending, Applicants
filed an emergency application for writ of injunction pending appeal. (A.A. Ex. 2.)
13
Applicants’ first application was denied without prejudice. (A.A. Ex. 2.) In both
applications, Applicants seek injunctive relief only as to themselves and primarily
seek employment-related relief from the Hospital Respondents. (App. at 5-6.)
ARGUMENT
An injunction from this Court is “extraordinary relief” that “‘demands a
significantly higher justification [even] than a request for a stay, because unlike a
stay, an injunction ‘does not simply suspend judicial alteration of the status quo but
grants judicial intervention that has been withheld by lower courts.’” Respect Maine
PAC v. McKee, 562 U.S. 996, 996 (2010) (quoting Ohio Citizens for Responsible
Energy, Inc. v. NRC, 479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers)). To obtain
such relief, the applicant must show that the “legal rights at issue” in the underlying
dispute are “indisputably clear” in its favor, Lux v. Rodrigues, 561 U.S. 1306, 1307
(2010) (Roberts, C.J., in chambers), such that this Court is reasonably likely to grant
certiorari and reverse any judgment adverse to the applicant entered upon the
completion of lower-court proceedings. Stephen M. Shapiro et al., Supreme Court
Practice § 17.13(b) (10th ed. 2013). And, as with injunctive relief generally, the
applicant must also satisfy all of the remaining factors relevant for such relief,
namely “that [it] is likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in [its] favor, and that an injunction is in the
public interest,” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)—the
latter two factors merging where, as here, the injunction would run against the
government, see Nken v. Holder, 556 U.S. 418, 435 (2009).
14
Applicants have not met this demanding burden in connection with their
application to enjoin the enforcement of the Rule and Statute against them. The
application should therefore be denied.
I. APPLICANTS ARE NOT LIKELY TO SUCCEED ON THE MERITS OF
THEIR FREE EXERCISE CLAIM.
The First Amendment’s Free Exercise Clause provides in pertinent part:
“Congress shall make no law . . . prohibiting the free exercise” of religion. U.S. Const.
amend. I; Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940) (incorporating Free
Exercise Clause against the States via the Fourteenth Amendment).
As described above, Applicants’ claim involves two different legal authorities:
the Rule and the Statute. Regardless of which standard of review is applied, neither
the Rule nor the Statute violates Applicants’ First Amendment rights to free religious
exercise.
A. The Rule and the Statute are neutral laws of general
applicability that are valid under rational basis review.
The Free Exercise Clause protects “the right to believe and profess whatever
religious doctrine one desires,” Emp’t Div., Dep’t of Hum. Res. of Or. v. Smith, 494
U.S. 872, 877 (1990), but it “does not relieve an individual of the obligation to comply
with a ‘valid and neutral law of general applicability on the ground that the law
proscribes (or prescribes) conduct that his [or her] religion prescribes (or proscribes),’”
id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J.,
concurring in judgment)). A neutral law of general applicability is constitutional if it
15
is rationally related to a legitimate state interest, even if it incidentally burdens
religious practices. Fulton, 141 S. Ct. at 1876 (citing Smith, 494 U.S. at 878-82).
1. Neutrality.
The neutrality inquiry begins with the text of the law in question. See Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993). “A law
lacks facial neutrality if it refers to a religious practice without a secular meaning
discernable from the language or context.” Id. Neither the text of the Rule nor the
text of the Statute refers to religious practice, conduct, belief, or motivation. The Rule
and the Statute are public health measures designed to prevent the spread of
communicable diseases. The Rule and Statute are facially neutral.
The laws are also neutral because their object or purpose is not to infringe or
restrict any particular religious practice, and they are not “specifically directed at
[Applicants’] religious practice.” Smith, 494 U.S. at 878. The overarching object of
the Rule is to control and prevent communicable diseases. (R.A. 75.) The object of
the recent amendment to the Rule is to prevent the spread of COVID-19 among
healthcare workers in high-risk settings, protect patients and individuals from
disease and death, and protect Maine’s healthcare system. (R.A. 42-44.) Similarly,
the Legislature’s elimination of all nonmedical exemptions was intended to increase
the overall rate of vaccination and protect individuals who are unable to be vaccinated
for medical reasons. (See, e.g. R.A. 10-20.) Neither the Rule nor the Statute can be
said to be directed at religious practice.
16
Nevertheless, Applicants claim that they have been targeted for their religious
beliefs because Maine allegedly eliminated “only the religious exemption from the
[R]ule” on August 14, 2021. (App. at 2, 8-9, 19.) Applicants compare their case to the
district court decision in Dr. A. v. Hochul, No. 1:21-cv-1009, 2021 WL 4734404, at *8
(N.D.NY. Oct. 12, 2021), wherein the New York Department of Health Commissioner
established a COVID-19 vaccine mandate for employees of nursing homes and
hospitals via a time-limited summary order that included both medical and religious
exemptions. Id. at *1-2. That order was superseded 8 days later by an emergency
mandatory COVID-19 vaccination rule issued by the New York Public Health and
Health Planning Council that applied to a broader range of healthcare facilities and
included only a medical exemption. Id.
Here, Applicants misstate when and what type of vaccination exemptions were
eliminated in Maine. The record demonstrates conclusively that religious and
philosophical exemptions were eliminated in Maine at the same time. (R.A. 23
(repealing ME. REV. STAT. tit. 22, § 802(4-B)(B).) The record also demonstrates that
these nonmedical exemptions were eliminated by legislation enacted in 2019 that
ultimately became effective in April 2020—not August 2021, when the emergency
amendment to the Rule went into effect. 13 (R.A. 24, 74.)
13 When the Department and Maine CDC eliminated all references to nonmedical exemptions from
the Rule in April 2021, they simply updated the Rule to reflect the Statute’s amendment effective April
2020 that removed these exemptions. (R.A. 64.) The nonmedical exemptions in the Rule became
invalid 30 days after the Governor proclaimed that the statutory amendment was ratified by the
electorate, notwithstanding that the Rule was not amended until April 2021. (R.A. 24.)
17
Viewing these record facts accurately, it is clear that the circumstances in Dr.
A. are not present here. 14 2021 WL 4734404, at *8. All nonmedical exemptions,
religious and philosophical, were eliminated by the Maine Legislature in 2019, and
after the statutory amendment was sustained in a statewide referendum in 2020, the
amendment became effective in April 2020. (R.A. 24.) This sequence is not a
“religious gerrymander.” (A.A. Ex. 1 at 29; see also A.A. Ex. 1 at 5 (“Contrary to the
[Applicants]’ claims, Maine changed its vaccination laws to eliminate the religious
and philosophical exemptions well before the COVID-19 pandemic was rampant.”).)
Other than Applicants’ inaccurate claim that the State of Maine eliminated
only religious exemptions on August 14, 2021, Applicants point to no other evidence
of animus or conduct targeted at religious practice by the State of Maine. Both the
Rule and Statute are neutral. (A.A. Ex. 1 at 18.)
2. General applicability.
The general applicability requirement prohibits the government from “in a
selective manner impos[ing] burdens only on conduct motivated by religious belief.”
Lukumi, 508 U.S. at 543. It “protect[s] religious observers against unequal
treatment[] and inequality [occurring] when a legislature decides that the
14 Applicants have also relied on the Second Circuit interim order in We the Patriots v. Hochul, No.
21-2179 (2d Cir. Oct. 1, 2021). (App. at 13.) But that order did not contain any analysis and was time
limited to coincide with the temporary restraining order entered in Dr. A. v. Hochul, No. 1:21-cv-1009
(N.D.NY. Sept. 14, 2021). The New York State officials have now appealed the Dr. A preliminary
injunction decision. Notice of Appeal, Dr. A. v. Hochul, No. 1:21-cv-1009 (N.D.NY. Oct. 13, 2021), ECF
No. 23. The Second Circuit has ordered that the two appeals will be heard in tandem, with oral
argument to occur on both matters on October 27, 2021. Order, Dr. A. v. Hochul, Docket No. 21-2566
(2d Cir. Oct. 14, 2021).
18
governmental interests it seeks to advance are worthy of being pursued only against
conduct with a religious motivation.” Id. at 542–43.
Here, the Rule applies equally to all covered entities. Those organizations
must require their employees to show proof of vaccination against COVID-19, unless
the employee is medically exempt. Rule §§ 2(A)(7), (B), (E). The Statute permits
employees to assert only medical exemptions to mandatory vaccination requirements;
exemptions based on any other reason, religious or otherwise, are not permitted. Cf.
Lukumi, 508 U.S. at 535-36 (explaining how ban on ritual animal sacrifice without
banning other animal slaughter targeted specific practice of Santeria faith). An
individual’s personal, philosophical, or religious beliefs simply do not come into play
under the Statute. 15
Further, and contrary to Applicants’ contention (App. at 14, 17), the State does
not have a discriminatory scheme of individualized exemptions to its vaccination
requirements. Neither the Rule nor the Statute permits the State to “exercise
discretion in evaluating individual requests for exemptions.” (A.A. Ex. 1 at 18.)
On the contrary, the Statute vests authority regarding medical exemptions
with healthcare providers, not State officials. “[A] licensed physician, nurse
practitioner or physician assistant” is to utilize her professional judgment in deciding
whether to sign a written statement in support of a medical exemption for an
employee. ME. REV. STAT. ANN. tit. 22, § 802(4-B)(A). The medical exemption is not
a “mechanism for individualized exemptions” that renders the Statute not generally
15Any individual who may have nonmedical reasons to object to vaccinations could still qualify for a
medical exemption: Maine law distinguishes not by belief, but by medical condition.
19
applicable. Fulton, 141 S. Ct. at 1877 (2021); Sherbert, 374 U.S. at 399-401 (exception
which vested discretion in state officials to determine whether “good cause” existed
to excuse requirement of state unemployment scheme violated Free Exercise rights
of petitioner); Dahl v. Bd. of Trs. of W. Mich. Univ., -- F.4th ---, No. 21-2945, 2021 WL
4618519, at *4 (6th Cir. Oct. 7, 2021) (reasoning college’s vaccine mandate was not
neutral or generally applicable because university retained full discretion to grant or
deny religious and medical exemptions to its vaccine mandate for student athletes).
“[A] single objective exemption [does not render a rule] not generally applicable.”
(A.A. Ex. 1 at 18-19.) See Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610,
614 (6th Cir. 2020) (“As a rule of thumb, the more exceptions to a prohibition, the less
likely it will count as a generally applicable, non-discriminatory law.”).
3. Comparability.
In Tandon v. Newsom, the Court stated that “government regulations are not
neutral and generally applicable, and therefore trigger strict scrutiny under the Free
Exercise Clause, whenever they treat any comparable secular activity more favorably
than religious exercise. [W]hether two activities are comparable for purposes of the
Free Exercise Clause must be judged against the asserted government interest that
justifies the regulation at issue.” 141 S. Ct. 1294, 1296 (2021) (per curiam) (second
emphasis added). Applicants assume that a medical exemption is comparable to a
religious exemption, but they fail to address the State’s actual interests in the Statute
and the Rule. Contrary to Applicants’ contention, a medical exemption is not
comparable to a religious exemption and does not undermine the State’s interests.
20
Maine includes a medical exemption to its vaccination requirements because
there are certain circumstances when vaccination may cause adverse health
consequences, thereby actually harming that individual. (R.A. 40.) When the Maine
Legislature eliminated nonmedical exemptions (i.e., religious and philosophical
exemptions) from the Statute in 2019, its goals were to reverse the trend of falling
vaccination rates and protect persons who cannot be vaccinated for medical reasons,
including children, the elderly, and pregnant women. (R.A. 10-12, 19-20, 68.) As
explained by the then-Maine CDC Director: “When someone chooses not to vaccinate,
that decision can jeopardize the health and safety of entire communities, especially
the weakest and most vulnerable among us. Those who are unable to be vaccinated,
such as young infants, pregnant mothers or children with cancer, face the most risk
from disease complications.” (R.A. 20.) Persons who are unable to be vaccinated for
medical reasons rely on the immunity of those around them as their protection from
those communicable diseases. (R.A. 11-12, 38.) The medical exemption in the Statute
serves to protect these individuals.
Maine’s interests in the Rule likewise are similarly focused on protecting the
health of Maine’s citizenry by ensuring healthcare workers remain healthy and able
to provide care to patients, protecting vulnerable populations, including persons who
are unable to be vaccinated, and protecting the health of Mainers, including patients
and healthcare workers. (R.A. 43-45.) “Maine’s three interests are mutually
reinforcing. It must keep its healthcare facilities staffed in order to treat patients,
whether they suffer from COVID-19 or any other medical condition. To accomplish
21
its three articulated goals, Maine has decided to require all healthcare workers who
can be vaccinated safely to be vaccinated.” (A.A. Ex. 1 at 18.)
Requiring vaccination of healthcare workers whose health may be harmed by
vaccination would not serve any of the State’s goals. It would not protect the
individual healthcare worker, Maine’s healthcare system, or the health of patients
and other healthcare workers. The medical exemption to vaccination in the Statute
is therefore unlike the COVID-19 gathering measures the Court has addressed in the
past year. See Tandon, 141 S. Ct. at 1296-97; South Bay United, 141 S. Ct. at 717;
Roman Catholic Diocese, 141 S. Ct. at 66-67.
In each of these cases, the State prohibited or limited religious gatherings
while placing no restrictions (or less restrictions) on numerous, secular settings based
on the State’s assessment of the risks posed by the different activities and settings.
For example, in Roman Catholic Diocese, the regulation at issue allowed houses of
worship in a designated area to admit only 10 persons, but “essential” businesses,
such as “acupuncture facilities, camp grounds, garages, [and] plants manufacturing
chemicals” could admit as many people as they wished. 141 S. Ct. at 66; see also
Tandon, 141 S. Ct. at 1297 (noting regulation permitted persons at “hair salons, retail
stores, personal care services, movie theaters, private suites at sporting events” “to
bring together more than three households at a time” but did not allow the same for
“at-home religious exercise”); South Bay United, 141 S. Ct. at 717 (statement of
Gorsuch, J.) (criticizing the California order that restricted worship but permitted
larger groups to gather in “most retail” establishments and “other businesses”). In
22
each case, the Court rejected the States’ comparative assessments of risks because
comparability for gathering restrictions “is concerned with the risks various activities
pose, not the reasons why people gather.” Tandon, 141 S. Ct. at 1296.
In contrast, Maine’s Statute and Rule do not rely on comparative assessments
of risk between secular and religious activities. The Statute and Rule simply require
that all healthcare workers be vaccinated unless the vaccination would harm that
worker’s health. The comparability concerns in Tandon are not present here.
Framed in the gathering limit context, Maine’s vaccination requirement is like a
COVID-19 indoor occupancy limit that applied equally to all indoor activities based
on the size of the facility (regardless of whether they were secular or religious), but
exempts hospitals and other healthcare facilities from its purview. Such a gathering
limit would further the State’s goal of protecting public health by stemming the
spread of COVID-19. The exception would also protect public health by ensuring all
persons can receive medical care. Such a gathering limit would not contravene
Tandon, South Bay United, or Roman Catholic Diocese.
Similarly, the constitutional defect in Fraternal Order of Police Newark Lodge
No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999), was not that the medical
exemption from the no-facial hair policy was secular per se—the problem was that it
undermined the City’s stated goal in maintaining a uniform, easily identifiable
appearance for its officers. Id. at 365-66. In the same decision, the court explained
that a different exception to the facial hair rule for undercover officers was not
problematic. Id. at 366. Undercover officers were not held out as members of the
23
force, so exempting them from the no facial hair policy did not undermine the City’s
interest in a uniform appearance for its officers. Id. In other words, the undercover
officer exception was acceptable because it was consistent with the City’s goal; the
medical exemption was not. Here, like the undercover officer exception in Fraternal
Order, providing a medical exemption is consistent with (and certainly does not
undermine) the State’s interests. Fraternal Order, 170 F.3d at 366 (“the Free
Exercise Clause does not require the government to apply its laws to activities that
it does not have an interest in preventing”). In sum, medical exemptions are not
“comparable” to religious exemptions under Tandon, South Bay United, Roman
Catholic Diocese, or Fraternal Order. See also Resurrection Sch. v. Hertel, 11 F.4th
437, 458-59 (6th Cir. 2021) (concluding COVID-related mask mandate for secular and
religious schools with exception for those medically unable to mask was neutral and
generally applicable);
4. Value judgment.
Applicants also argue that the Department and Maine CDC have made a value
judgment in favor of a secular, medical exemption and prioritized it over a religious
exemption. (App. at 22-24.) Applicants contend that the “risk” from unvaccinated
healthcare workers because of medical or religious reasons is the same, and so Maine
is discriminating against religious motivation. Applicants contend this alleged value
judgment means the Statute is not generally applicable, citing Fraternal Order and
a series of similar cases.
24
But whether a medical exemption reflects a value judgment that discriminates
against religious motivation must be evaluated based on the policy objective to be
achieved. Cf. Yellowbear v. Lampert, 741 F.3d 48, 61 (10th Cir. 2014) (explaining a
State may “identify[] a qualitative or quantitative difference between the particular
religious exemption requested and other secular exceptions already tolerated, and
then explain[] how such differential treatment furthers” the State’s concern). For
example, in Blackhawk v. Pennsylvania, the Third Circuit examined a state law that
forbade religious exemptions from restrictions on keeping wildlife in captivity while
categorically exempting zoos and circuses from such restrictions. 381 F.3d 202, 210
(3d Cir. 2004). Noting that the purpose of the underlying state law was to raise
revenue (from charging permit fees) and to “discourage the keeping of wild animals
in captivity,” id. at 211, the Third Circuit found that the nonreligious exemptions for
zoos and circuses “undermine[d] the purpose of the law to at least to the same degree
as the covered conduct that is religiously motivated,” id. at 209.
But here, as the First Circuit held, “[e]xempting individuals whose health will
be threatened if they receive a COVID-19 vaccine is an essential, constituent part of
a reasoned public health response to the COVID-19 pandemic.” (A.A. Ex. 5 at 26.)
The medical exemption advances the State’s public health interests, and certainly
does not undermine them or suggest discriminatory bias against religion. 16 Put
16 In contrast, medical exemptions that do not further the stated governmental interest have been
determined to be an unwarranted value judgment against religious belief. See, e.g., Fraternal Order,
170 F.3d at 365-66; Cunningham v. City of Shreveport, 407 F. Supp. 3d 595, 607-08 (W.D. La. 2019);
Singh v. McHugh, 185 F. Supp. 3d 201, 211-13 (D.D.C. 2015); Litzman v. N.Y City Police Dep’t, No. 12
Civ. 4681, 2013 WL 6049066, *3 (S.D.N.Y. Nov. 15, 2013).
25
another way, Maine’s vaccination requirement and the statutory medical exemption
further the same goal and do not reflect a value judgment against religious
motivation. W.D. v. Rockland Cnty., 521 F. Supp. 3d 358, 406 (S.D.N.Y. 2021) (“the
medical exemption furthered Defendants’ public health purpose by encouraging
community-wide vaccination on the one hand, and protecting the lives and safety of
those who could not be vaccinated, on the other”).
5. Rational basis review.
Because the Rule and the Statute are neutral and generally applicable, the
applicable standard of constitutional review is rational basis. Because “[s]temming
the spread of COVID–19 is unquestionably a compelling interest,” Roman Cath.
Diocese, 141 S. Ct. at 67, the State’s goals of protecting patients, workers, the
healthcare system, and those unable to be vaccinated in a worldwide pandemic are
unquestionably legitimate state interests. And requiring vaccination, the most
effective method of stopping the spread of communicable diseases (R.A. 39, 47), is
rationally related to achieving these goals. Accord Jacobson v. Massachusetts, 197
U.S. 11, 31 (1905) (upholding municipality’s mandatory vaccination law based on its
“real and substantial relation” to protecting public health).
B. The Rule and the Statute are narrowly tailored to achieve the
State’s compelling interests.
As shown above, both Maine laws in question are neutral and generally
applicable and “need not be justified by a compelling governmental interest even if
the law has the incidental effect of burdening a particular religious practice.”
26
Lukumi, 508 U.S. at 531. But if strict scrutiny were to apply, then both laws would
still stand up against Applicants’ Free Exercise challenge.
Applicants suggest that the State’s interests are not compelling (App. at
24-25), but this Court has already held that protecting the public from a deadly
disease “is unquestionably a compelling interest.” Roman Catholic Diocese, 141 S.
Ct. at 67; see also Workman v. Mingo Cnty. Bd. of Educ., 419 F. App’x 348, 353 (4th
Cir. 2011) (holding state vaccine mandate without religious exemption to “prevent
the spread of communicable diseases clearly constitutes a compelling interest”); Ware
v. Valley Stream High Sch. Dist., 550 N.E.2d 420, 429 (N.Y. 1989) (controlling AIDS
epidemic was compelling state interest). “Few interests are more compelling than
protecting public health against a deadly virus.” (A.A. Ex. 1 at 23.)
Applicants also attack the effectiveness of vaccination at controlling the
COVID-19 pandemic. (App. 25-26.) Data from the United States Centers for Disease
Control shows that COVID-19 vaccinations reduce the risk of people spreading the
virus that causes COVID-19. (A.A. Ex. 5 at 31-32.) In Maine, as of September 1,
2021, the rate of infection in the population of individuals aged 12 and older is 8 times
higher among the unvaccinated. (R.A. 42.) Maine added COVID-19 to the Rule in
order to protect its healthcare infrastructure, workers and patients, and vulnerable
populations. Requiring vaccination of all medically eligible healthcare workers
protects public health by ensuring that all persons can receive necessary medical
treatment, for COVID-19 or otherwise. 17
17 Applicants have not grappled with the Statute. More than two years ago, the Legislature
determined that whatever vaccination requirements might be adopted through the Rule, the only
27
The Rule and Statute are narrowly tailored to achieve the State’s interests.
Narrow tailoring requires the government to show that its policy is the “least
restrictive means” of achieving its objective, Thomas v. Rev. Bd. of Ind. Emp. Sec.
Div., 450 U.S. 707, 718 (1981), and that it “seriously undertook to address the problem
with less intrusive tools readily available to it,” McCullen v. Coakley, 573 U.S. 464,
494 (2014). To evaluate the requirement of narrow tailoring, the inquiry is “whether
the challenged regulation is the least restrictive means among available, effective
alternatives.” Ashcroft v. ACLU, 542 U.S. 656, 666 (2004).
The record shows that the State “seriously undertook to address the problem
with less intrusive tools readily available to it” and “considered different methods”
employed by other jurisdictions. McCullen, 573 U.S. at 494. The record establishes
that Maine considered and tried numerous methods of fighting COVID-19 before
mandating vaccinations. Those measures had either proven ineffective or would not
be effective at achieving the State’s goals.
For example, Maine considered continuing to utilize just masks and other
personal protective equipment (PPE), as Applicants suggest. (R.A. 47.) Adherence
to these practices, while crucial to infection control efforts, did not stop outbreaks of
COVID-19 from occurring in healthcare facilities. (R.A. 47.) The Applicant
employees of Hospital Respondents have been required to comply with applicable
exemption to those requirements would be a medical exemption. Applicants have not argued that the
State’s specified goals in 2019 in eliminating religious and philosophical exemptions – to increase
vaccination rates and protect vulnerable populations, including people medically unable to be
vaccinated – are not compelling interests. Nor do they explain what steps they contend the Maine
Legislature should have taken two years ago to more narrowly tailor the Statute (instead of
eliminating non-medical exemptions).
28
infection control practices, including those pertaining to COVID-19. (R.A. 92, 95, 98,
101.) As of August 11, 2021, 4 of the 14 outbreaks under investigation by Maine CDC
were occurring at healthcare facilities that are now covered by the Rule. (R.A. 42.)
By September 3, 2021, 19 of the 33 outbreaks that Maine CDC was investigating
occurred at healthcare facilities that are now covered by the Rule. (R.A. 42.)
Continuing to operate under conditions as they existed before the implementation of
the amendment to the Rule would have been effective at achieving the State’s goals.
Maine CDC also considered, but rejected, regular testing as an alternative to
protect against the Delta variant. (R.A. 46.) Given the speed with which the Delta
variant is transmitted, weekly or twice weekly testing would be wholly ineffective as
a tool for preventing transmission. (R.A. 46.) An employee who tests negative on a
Monday morning could be exposed that afternoon and, within 36 hours, could be
spreading the virus to vulnerable patients and other employees over the course of the
several days until the next test. (R.A. 46.)
Daily testing was also considered, but rejected. The most effective test utilized
for the detection of the virus that causes COVID-19 is a polymerase chain reaction
(PCR) test; a PCR test requires a minimum of 24 hours before results are available,
and sometimes results are not available for up to 72 hours. (R.A. 46.) Because of this
delay, PCR testing on a daily basis would be insufficient for the same reasons that
occasional testing is insufficient. (R.A. 46.) Daily testing likely would require the
use of the less-effective rapid antigen test, which provides results in fifteen minutes,
but which correctly identify only about 50% of positive COVID-19 cases. (R.A. 46.)
29
Moreover, the nation is experiencing a shortage of rapid antigen tests, which is not
expected to end until November 2021. (R.A. 46.) Daily testing would not be effective
at stopping the spread of COVID-19 in covered facilities, particularly in light of the
Delta variant. (R.A. 46.)
Healthcare facilities in Maine, and across the country, have utilized these
measures—PPE and testing—and others—such as symptom monitoring—
throughout the pandemic to protect their workers and patients. But despite the use
of these health and safety protocols, there have been numerous outbreaks of COVID-
19 in healthcare facilities in the State. (R.A. 47.) Further, there is no equivalency
between measures taken before and after vaccines became available; 18 when more
effective measures to achieve the State’s goals become available, the State should not
be required to continue using less effective measures.
Applicants argue strenuously that because other jurisdictions allow for a
religious exemption to their COVID-19 vaccination requirements, Maine must follow
suit. 19 (App. at 27-29.) But Applicants fail to recognize that allowing medically
18 Prior to requiring healthcare facilities to require their employees to be vaccinated against COVID-
19, the Department and Maine CDC took numerous steps to encourage vaccination amongst the
population and healthcare workers specifically. Maine CDC hosted informational sessions for
clinicians on the COVID-19 vaccines and prioritized healthcare workers for the first COVID-19 vaccine
doses. (R.A. 52-53.) The Department and Maine CDC partnered with some of the Hospital
Respondents and others to host large public vaccination sites across the State. (R.A. 54-55.) All
Hospital Respondents offered on-site vaccination to their staff and other eligible recipients. (R.A. 92,
95, 98, 101.) The State also offered various prizes and incentives in order to encourage vaccination.
(R.A. 56.)
19 Neither the Department nor Maine CDC could have included a religious exemption in the text of
the Rule. The Maine Legislature removed religious and philosophical exemptions via legislation
effective April 2020 and instructed the Department to remove all references to nonmedical exemptions
from the Rule. (R.A. 27.) Executive agencies are creatures of statute and have only that authority
provided to them by law. See Valente v. Bd. of Env’tl Prot., 461 A.2d 716, 718 (Me. 1983). Neither the
Department nr Maine CDC could have reinstated a religious exemption to vaccination once the Statute
was amended in 2019.
30
eligible persons to remain unvaccinated would not address the State’s interest in
protecting persons who cannot be vaccinated for medical reasons. Those persons rely
on the vaccination of their coworkers, neighbors, and family members in order to stay
safe from communicable diseases, including COVID-19.
What other States may choose to do does not answer the question of what is
constitutionally required. And contrary to Applicants’ claims, the record shows that
Maine is different. The size of Maine’s workforce is limited as compared to other
States, 20 such that the impact of any outbreaks among personnel is far greater than
it would be in a state with more extensive healthcare delivery systems, like those
cited by Applicants. (R.A. 47.) Cf. Dr. A., 2021 WL 4734404, at *9 (reasoning that
New York vaccine mandate was not narrowly tailored because the State had not
“explained why they chose to depart from similar healthcare vaccination mandates
issued in other jurisdictions” that include religious exemptions). Considering Maine’s
circumstances, it is necessary to take every available precaution to limit the spread
of COVID-19 in healthcare facilities and among their workers. (R.A. 47.)
In sum, the record shows that there were no less restrictive alternatives that
would have been effective at achieving the State’s goals. Ashcroft, 542 U.S. at 666.
20 Applicants state, without any support, that both Vermont and New Hampshire have similarly sized
workforces, but “allow religious exemptions.” (App. at 30.) But neither State has imposed a statewide
COVID-19 vaccination requirement on healthcare workers, and COVID-19 vaccine mandates that may
be imposed by private hospitals and private healthcare employers across the country are irrelevant in
a First Amendment analysis.
31
C. Applicants’ other arguments are meritless.
In support of his Free Exercise claim, Applicant John Doe 1 claims that his
sincerely held religious beliefs are substantially burdened by the Rule and Statute.
(App. at 16-17.) In support, he relies on Burwell v. Hobby Lobby Stores, Inc., 573 U.S.
682 (2014). Burwell is inapplicable to this case because its analysis rested on the
Religious Freedom Restoration Act (RFRA), 42 U.S.C.A. §§ 2000bb to 2000bb-4
(Westlaw, through Publ. L. 103-141). Congress enacted RFRA in response to Smith
in order to provide increased protection to religious exercise. Burwell, 573 U.S. at
693-95. But RFRA categorically does not apply to State and municipal actors. See
City of Boerne v. Flores, 521 U.S. 507, 529-36 (1997).
II. APPLICANTS ARE NOT LIKELY TO SUCCEED ON THE MERITS OF
THEIR SUPREMACY CLAUSE CLAIM.
Applicants are unlikely to succeed on the merits of the Supremacy Clause claim
because the Supremacy Clause is not “the source of any federal rights” or any private
cause of action, but a “rule of decision” that courts should not give effect to state laws
that conflict with federal law. Armstrong v. Exceptional Child Ctr., Inc., 575 U.S.
320, 324 (2015) (cleaned up). The Supremacy Clause “certainly does not create a
cause of action.” Id. at 325.
With this claim, Applicants seek a religious accommodation in the form of an
exemption from the vaccination requirements. But Applicants conflate a vaccination
exemption under the Statute with a religious accommodation under Title VII. A valid
exemption exempts a healthcare worker from the vaccination requirements of the
Rule. But whether a person can claim a valid exemption does not answer the question
32
of whether an employer must provide that person with a religious accommodation
under Title VII. The two are separate inquiries, governed by separate legal
frameworks.
In any event, Maine CDC published guidance explaining that, in the State’s
view, the Rule does not prohibit employers from providing accommodations under
Title VII:
Does this rule prohibit Designated Health Care Facilities, Dental
Health Practices, or Emergency Medical Services Organizations from
making accommodations for unvaccinated employees who object to
receiving the COVID-19 vaccine because of sincerely held religious
beliefs, as may be required by the Maine Human Rights Act and/or Title
VII of the Civil Rights Act?
This rule does not prohibit employers from providing accommodations
for employees’ sincerely held religious beliefs or practices that may
otherwise be required by law. For example, this rule does not prohibit
employers from allowing employees to work remotely or reassigning
employees to positions outside of a Designated Health Care Facility,
Dental Health Practice, or Emergency Medical Services Organization.
However, if accommodations provided by a Designated Health Care
Facility, Dental Health Practice, or Emergency Medical Services
Organization are not in compliance with this rule, then the Designated
Health Care Facility, Dental Health Practice, or Emergency Medical
Services Organization may be subject to enforcement action.
(R.A. 58-59.) 21 If compliance with both a state law and federal law is possible, the
state law is not preempted. See California Fed. Sav. and Loan Ass’n v. Guerra, 479
U.S. 272, 280-81 (1987). Finally, Applicants have provided no evidence of how State
Respondents have denied the supremacy of federal law or the inapplicability of Title
21 Moreover, Title VII does not require employers to make accommodations that compromise
workplace safety. See, e.g., Robinson v. Children’s Hospital Boston, No. 14-10263-DJC, 2016 WL
1337255, at **9-10 (D. Mass. Apr. 5, 2016) (concluding hospital did not violate Title VII when it
terminated an employee who refused the flu vaccine based on her religious beliefs pursuant to a
hospital vaccination policy that only allowed for medical exemptions).
33
VII. (Cf. A.A. Ex. 7 at 36 (alleging State Respondents “tacitly stated” Title VII is
inapplicable in Maine).)
III. THE REMAINING FACTORS SUPPORT DENYING THE
APPLICATION.
A. Irreparable harm, balance of hardships, public interest.
Applicants have not established irreparable harm, that the balance of
hardships tips in their favor, or that the public interest warrants an injunction.
As to irreparable harm, Applicants assert that their First Amendment Free
Exercise rights are being irreparably harmed by the Rule and the Statute. (App. at
36-38.) According to Applicants, this Court must intervene promptly because they
are faced with a difficult choice: get vaccinated and “violate their deeply held religious
beliefs” or maintain their “ability to feed their families” and “work in their chosen
profession.” (App. at 2-3.)
Applicants have not fairly stated their choices. They remain free to decline
vaccination in accordance with their religious beliefs; the Rule imposes no
requirement on the individual Applicants. Further, unlike the gathering limits
addressed in Tandon, South Bay United, and Roman Catholic Diocese, Applicants are
not being restricted from engaging in any religious practice. Applicants may continue
to adhere to their sincerely held religious beliefs and refuse vaccination against
COVID-19 if they wish to do so. And Applicants have already attested, under oath,
that their “sincerely held religious beliefs compel them to abstain from obtaining or
34
injecting any of [the available COVID-19 vaccines] into their bod[ies], regardless of
perceived benefit or rationale.” (A.A. Ex. 7 at 20-21.)
Applicants assert that they will suffer loss of current employment and all
potential employment in the healthcare field in the State if the Rule is enforced. (App.
2, 3, 17, 37.) The Rule is not so broad as Applicants claim. The Rule covers only
employees of certain healthcare facilities; it does not apply to private physician
practices, urgent care clinics, or any other facility not identified in the Rule. Rule,
§§ 2(A)-(B). The Rule also only applies to employees physically present in covered
healthcare facilities or settings; employees working remotely are not affected. (R.A.
35.) Applicants can pursue employment elsewhere, or may be transitioned to
employment off site, contrary to their claims. In any event, Applicants’ “loss of their
employment [is] serious and substantial, [but] is not irreparable. [Applicants] may
pursue remedies at law for alleged discriminatory firings, including reinstatement,
back pay, and damages.” (A.A. Ex. 5 at 39.)
With respect to the balance of harms, State Respondents are seeking to protect
the health and lives of healthcare workers and patients across the State, and that
interest far outweighs the harm, if any, that Applicants may suffer. See Cassell v.
Snyders, 990 F.3d 539, 550 (7th Cir. 2021) (“When balancing the public interest—
meaning the interests of those not before the court—courts must also keep in mind
that plaintiffs are not asking to be allowed to make a self-contained choice to risk
only their own health”).
35
Finally, the public interest weighs heavily in State Defendants’ favor. Castillo
v. Whitmer, 823 F. App’x 413, 417–18 (6th Cir. 2020) (“enjoining the testing scheme
poses a substantial risk of harm to others given that identifying and isolating COVID-
19-positive workers limits the spread of the virus”; “enforcing it serves the public
interest”). Applicants should not be permitted to interfere with the careful, medically
based approach taken by the Maine Legislature, as ratified and approved by the
Maine electorate, and State Respondents.
B. The First Circuit’s decision is not certworthy.
Applicants seek relief pending their petition for writ of certiorari, but it is not
likely that this Court will grant the writ. The First Circuit’s decision does not present
a legal issue that has not been decided by this Court. First, this Court’s precedent
firmly establishes that mandatory vaccination laws without religious exemptions are
constitutional. See Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905) (upholding
compulsory vaccination law for all inhabitants of the City of Cambridge against
Fourteenth Amendment challenge); Zucht v. King, 260 U.S. 174, 176 (1922)
(upholding compulsory vaccination law against Fourteenth Amendment challenge);
Prince v. Massachusetts, 321 U.S. 158, 165–67 (1944) (“[A parent] cannot claim
freedom from compulsory vaccination for the child more than for himself on religious
grounds. The right to practice religion freely does not include liberty to expose the
community or the child to communicable disease or the latter to ill health or death.”);
cf. Smith, 494 U.S. at 888-89 (“The First Amendment’s protection of religious liberty
does not require” “religious exemptions [to] compulsory vaccination laws”).
36
Second, the First Circuit’s decision does not create a circuit split that requires
this Court’s resolution. Numerous Courts of Appeals have also explained and held
that mandatory vaccination laws without religious exemptions do not violate the Free
Exercise Clause. See Nikolao v. Lyon, 875 F.3d 310, 316 (6th Cir. 2017) (“[Nikolao]
has not been denied any legal right on the basis of her religion. Constitutionally,
Nikolao has no right to [a vaccine] exemption.”), cert. denied, 138 S. Ct. 1999 (2018)
(mem.); Phillips v. City of New York, 775 F.3d 538, 543-44 (2d Cir. 2015) (“mandatory
vaccination as a condition for admission to school does not violate the Free Exercise
Clause”), cert. denied, 577 U.S. 822 (2015); Workman, 419 F. App’x at 352-54
(concluding West Virginia’s mandatory vaccination law that allowed for only medical
exemptions withstood strict scrutiny review), cert. denied, 565 U.S. 1036 (2011).
There is no Court of Appeals decision to the contrary.
Third, the First Circuit’s decision does not present a legal issue that has
divided federal and state courts. The States’ highest courts have agreed with the
federal circuit courts and held that the Free Exercise Clause does not require
mandatory vaccination laws to include religious exemptions. See Davis v. Maryland,
451 A.2d 107, 111-112 (Md. 1982) (explaining state need not “provide a religious
exemption from its immunization program”); Brown v. Stone, 378 So. 2d 218, 222
(Miss. 1979) (“it is within the police power of the State to require that school children
be vaccinated against smallpox”; “such requirement does not violate the
constitutional rights of anyone, on religious grounds or otherwise”), cert. denied, 449
U.S. 887 (1980); Wright v. DeWitt School Dist., 385 S.W.2d 644, 647-48 (Ark. 1965)
37
(rejecting challenge to mandatory vaccination law on ground it did not include
religious exemption); Mosier v. Barren Cnty. Bd. of Health, 215 S.W.2d 967, 969 (Ky.
1948) (rejecting parents’ religious objections to mandatory vaccination requirements
for schoolchildren when there was no ongoing pandemic); Sadlock v. Bd. of Ed., 58
A.2d 218, 220-22 (N.J. 1948) (upholding mandatory school vaccination ordinance with
only a medical exemption to state and federal free exercise challenge); City of New
Braunfels v. Waldschmidt, 207 S.W. 303, 308-09 (Tex. 1918) (concluding mandatory
school vaccination law with only medical exemptions did not violate free exercise
clause of state or federal constitution).
This case does not require or present any novel constitutional questions.
Indeed, as shown above, the Statute and the Rule pass constitutional muster under
the traditional Free Exercise rubric established in Lukumi, Smith, and the
comparability analysis of Tandon. It is therefore not reasonably likely that this Court
will grant a petition for certiorari and reverse any decision or judgment adverse to
Applicants.
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