Court filing
Exhibit - Scotus
Full text
No. ________
IN THE SUPREME COURT OF THE UNITED STATES
JANE DOES 1–6, JOHN DOES 1–3, JACK DOES 1–1000, JOAN DOES 1–1000,
Applicants,
v.
JANET T. MILLS, in her official capacity as Governor of the State of Maine,
JEANNE M. LAMBREW, in her official capacity as Commissioner of the Maine
Department of Health and Human Services, NIRAV D. SHAH, in his official
capacity as Director for the Maine Center for Disease Control and Prevention,
MAINEHEALTH, GENESIS HEALTHCARE OF MAINE, LLC, GENESIS
HEALTHCARE, LLC, NORTHERN LIGHT HEALTH FOUNDATION,
MAINEGENERAL HEALTH,
Respondents.
To The Honorable Stephen G. Breyer,
Associate Justice of the United States Supreme Court
and Circuit Justice for the First Circuit
APPENDIX OF EXHIBITS
Mathew D. Staver (Counsel of Record)
Anita L. Staver
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
Liberty Counsel
P.O. Box 540774
Orlando, FL 32853
(407) 875-1776
court@LC.org |hmihet@LC.org
rgannam@LC.org | dschmid@LC.org
Counsel for Applicants
TABLE OF CONTENTS
Document Exhibit
Does v. Mills, No. 21-1826, Opinion affirming denial of preliminary injunction
(1st Cir. Oct. 19, 2021) ................................................................................................... 1
Does v. Mills, No. 21A83, Order denying application for writ of injunction
pending appeal without prejudice (U.S. Oct. 19, 2021) ................................................ 2
Does v. Mills, No. 21-1826, Order denying emergency motion for injunction
pending appeal (1st Cir. Oct. 15, 2021) ........................................................................ 3
Does v. Mills, No. 1:21-cv-242-JDL, Order denying motion for injunction pending
appeal (D. Me. October 13, 2021) .................................................................................. 4
Does v. Mills, No. 1:21-cv-242-JDL, Order denying motion for preliminary
injunction (D. Me. October 13, 2021) ............................................................................ 5
Verified Complaint for Temporary Restraining Order, Preliminary and
Permanent Injunctive Relief, Declaratory Relief and Damages.................................. 6
Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction
With Incorporated Memorandum of Law ..................................................................... 7
Press Release: Mills Administration Provides More Time for Health Care Workers
to Meet COVID-19 Vaccination Requirement ............................................................... 8
1
Case: 21-1826 Document: 00117800246 Page: 1 Date Filed: 10/19/2021 Entry ID: 6453714
United States Court of Appeals
For the First Circuit
No. 21-1826
JANE DOES 1-6; JOHN DOES 1-3; JACK DOES 1-1000; JOAN DOES 1-
1000,
Plaintiffs, Appellants,
v.
JANET T. MILLS, in her official capacity as Governor of the
State of Maine; JEANNE M. LAMBREW, in her official capacity as
Commissioner of the Maine Department of Health and Human
Services; NIRAV D. SHAH, in his official capacity as Director of
the Maine Center for Disease Control and Prevention;
MAINEHEALTH; GENESIS HEALTHCARE OF MAINE, LLC; GENESIS
HEALTHCARE, LLC; NORTHERN LIGHT HEALTH FOUNDATION; MAINEGENERAL
HEALTH,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Barron, Circuit Judges.
Mathew D. Staver, Horatio G. Mihet, Roger K. Gannam, Daniel
J. Schmid, and Liberty Counsel on brief for appellants.
Kimberly L. Patwardahan, Assistant Attorney General, Valerie
A. Wright, Assistant Attorney General, Thomas A. Knowlton, Deputy
Attorney General, Aaron M. Frey, Attorney General, on brief for
appellees Janet T. Mills, Jeanne M. Lambrew, and Nirav D. Shah.
James R. Erwin, Katherine I. Rand, and Pierce Atwood LLP on
brief for appellees MaineHealth, Genesis Healthcare of Maine, LLC,
Case: 21-1826 Document: 00117800246 Page: 2 Date Filed: 10/19/2021 Entry ID: 6453714
Genesis Healthcare, LLC, and MaineGeneral Health.
Ryan P. Dumais, Katherine L. Porter, and Eaton Peabody on
brief for appellee Northern Light Health Foundation.
October 19, 2021
- 2 -
Case: 21-1826 Document: 00117800246 Page: 3 Date Filed: 10/19/2021 Entry ID: 6453714
LYNCH, Circuit Judge. Faced with COVID-19's virulent
delta variant and vaccination rates among healthcare workers too
low to prevent community transmission, Maine's Center for Disease
Control ("Maine CDC") promulgated a regulation effective August
12, 2021, requiring all workers in licensed healthcare facilities
to be vaccinated against the virus. Under state law, a healthcare
worker may claim an exemption from the requirement only if a
medical practitioner certifies that vaccination "may be medically
inadvisable." Me. Rev. Stat. tit. 22, § 802(4-B) (West 2021).
Maine has mandated that its healthcare workers be vaccinated
against certain contagious diseases since 1989. It has not allowed
religious or philosophical exemptions to any of its vaccination
requirements since an amendment to state law in May 2019 (which
took effect in April 2020), and the COVID-19 mandate complies with
that state law.
Several Maine healthcare workers (and a healthcare
provider who runs his own practice) sued, arguing that the
vaccination requirement violates their rights including those
under the Free Exercise Clause of the U.S. Constitution. They
sued the Governor, the commissioner of the Maine Department of
Health and Human Services ("Maine HHS"), and the director of Maine
CDC alleging violations of the Free Exercise Clause, Supremacy
Clause, Equal Protection Clause, and 42 U.S.C. § 1985. They also
sued several Maine hospitals, which employ seven of the nine
- 3 -
Case: 21-1826 Document: 00117800246 Page: 4 Date Filed: 10/19/2021 Entry ID: 6453714
appellants, alleging violations of the Supremacy Clause, Title VII
of the Civil Rights Act of 1964, and 42 U.S.C. § 1985.
The appellants sought a preliminary injunction to
prevent enforcement of the regulation against them. The district
court denied their motion. Doe v. Mills, No. 1:21-cv-242-JDL,
2021 WL 4783626 (D. Me. Oct. 13, 2021).
We affirm.
I.
Maine has long required that healthcare workers be
vaccinated against infectious diseases. See 1989 Me. Laws ch.
487, § 11. Prior to 2019, state law exempted workers from
vaccination in three circumstances: when vaccination was medically
inadvisable, contrary to a sincere religious belief, or contrary
to a sincere philosophical belief. Id. In 2019, the state
responded to declining vaccination rates by amending its law to
allow for only the medical exemption.1 2019 Me. Laws ch. 154, § 9
(codified at Me. Rev. Stat. Ann. tit. 22, § 802 (2021)); see
Hearing on LD 798, An Act to Protect Maine Children and Students
from Preventable Diseases by Repealing Certain Exemptions from the
Laws Governing Immunization Requirements Before the J. Standing
Comm. on Educ. & Cultural Affs., 129th Legis., 1st Reg. Sess. (Me.
1 It made the same change to the laws requiring public-
school students and nursery-school employees to be vaccinated.
See 2019 Me. Laws ch. 154, §§ 3-4, 6, 10.
- 4 -
Case: 21-1826 Document: 00117800246 Page: 5 Date Filed: 10/19/2021 Entry ID: 6453714
2019) (statements of Rep. Tipping, Rep. McDonald, and Maine CDC
Acting Dir. Beardsley); House Rec. H-392, 393-94 (Me. Apr. 23,
2019) (statement of Rep. Tipping). The bill's sponsor explained
that one key rationale for the change was to protect the
immunocompromised "who will never achieve the immunities needed to
protect them and [who] rely on their neighbors' vaccinations."
Hearing on LD 798, supra (statement of Rep. Tipping). The law
went into effect in 2020, after nearly three-quarters of voters
rejected a referendum seeking to veto the law. In April 2021,
Maine CDC updated its mandatory vaccination regulations to reflect
the statutory changes. 364 Me. Gov't Reg. 26 (LexisNexis May
2021); Code Me. R. tit. 10-144, ch. 264, § 3 (West 2021). In
adopting that new rule, Maine explained that it was acting to
reduce the "risk for exposure to, and possible transmission of,
vaccine-preventable diseases resulting from contact with patients,
or infectious material from patients." At the time, the rule
required vaccination (without religious or philosophical
exemption) against measles, mumps, rubella, chickenpox, hepatitis
B, and influenza. Code Me. R. tit. 10-144, ch. 264, § 2. Contrary
to the appellants' claims, Maine changed its vaccination laws to
eliminate the religious and philosophical exemptions well before
the COVID-19 pandemic was rampant.
Maine has articulated a strong interest in protecting
the health of its population and has taken numerous steps, both
- 5 -
Case: 21-1826 Document: 00117800246 Page: 6 Date Filed: 10/19/2021 Entry ID: 6453714
before and after the development of the COVID-19 vaccines, to do
so.2 Maine's population is particularly vulnerable to COVID-19
because it has the largest share of residents aged 65 and older in
the country. U.S. Census Bureau, 65 and Older Population Grows
Rapidly as Baby Boomers Age, Release No. CB20-99 (June 25, 2020),
https://www.census.gov/newsroom/press-releases/2020/65-older-
population-grows.html. After COVID-19 vaccines became available,
Maine encouraged all its residents to be vaccinated and took
particular steps along those lines addressed to health care
workers. Maine took the following steps:
• Starting in December 2020, Maine HHS and Maine CDC
held regular information sessions with clinicians
to educate them about the vaccines including plans
for vaccine distribution and methods for addressing
vaccine hesitancy.
• Starting that same month, Maine HHS and Maine CDC
convened a working group to study the most
effective ways of educating clinicians on the
vaccines.
2 Before vaccines became available, state officials had
taken many steps to curb the spread of COVID-19. See Calvary
Chapel of Bangor v. Mills, No. 1:20-CV-156-NT, 2021 WL 2292795, at
*1-7 (D. Me. June 4, 2021) (describing efforts), appeal filed, No.
21-1453 (1st Cir. docketed June 14, 2021).
- 6 -
Case: 21-1826 Document: 00117800246 Page: 7 Date Filed: 10/19/2021 Entry ID: 6453714
• Given the limited vaccine availability in December
2020 and January 2021, Maine gave priority to
frontline healthcare workers over other groups in
the population during the first stage of vaccine
distribution. Hospitals offered on-site
vaccination to their staff and other eligible
recipients.
• Because COVID-19 poses greater risks of infection
and death to older people, Maine CDC prioritized
older residents as well. It started with residents
older than seventy and then expanded first to
residents older than sixty and then to residents
older than fifty.
• In partnership with Maine HHS and Maine CDC,
hospitals provided several large public vaccination
sites across the state. Maine HHS and Maine CDC
helped staff the sites with public health,
healthcare, and emergency-response volunteers.
• Maine CDC also distributed vaccines to healthcare
facilities, EMS organizations, and pharmacies
across the state.
- 7 -
Case: 21-1826 Document: 00117800246 Page: 8 Date Filed: 10/19/2021 Entry ID: 6453714
• From March 2021, Maine HHS provided free
transportation to vaccination sites to residents
who could not get to the sites.
• From April to June, Maine HHS and Maine CDC offered
a mobile vaccination unit in rural and underserved
areas of the state.
• For twenty days in May, Maine HHS offered
incentives to any Mainer who got his or her first
dose of a COVID-19 vaccine. Those eligible could
choose between a complimentary fishing license, a
complimentary hunting license, a Maine Wildlife
Park Pass, a $20 L.L. Bean gift card, a ticket to
a Portland Sea Dogs game, or an Oxford Plains
Speedway Pass.
• In June, Governor Mills announced a prize
sweepstakes, allowing all vaccinated residents to
enter and tying the prize to the number of residents
vaccinated by Independence Day weekend. On July 4,
a dialysis dietitian from Winslow won nearly
$900,000. Press Release, Office of Gov. Mills,
Governor Mills Announces Winner of Don’t Miss Your
Shot: Vaccinationland Sweepstakes (July 4, 2021),
https://www.maine.gov/governor/mills/news/governo
- 8 -
Case: 21-1826 Document: 00117800246 Page: 9 Date Filed: 10/19/2021 Entry ID: 6453714
r-mills-announces-winner-dont-miss-your-shot-
vaccinationland-sweepstakes-2021-07-04.3
By the end of July 2021, 65.0% of Maine residents had received at
least one dose of a COVID-19 vaccine. However, the geographic
distribution of vaccination was, and remains, uneven throughout
the state. See Maine CDC, COVID-19 Vaccination Dashboard: COVID
Vaccination by County Listing, (last visited Oct. 15, 2021)
https://www.maine.gov/covid19/vaccines/dashboard; see also
Pietrangelo, 2021 WL 4487850, at *1 n.1 ("The accuracy of state
and federal vaccine distribution data cannot be reasonably
questioned . . . ."). Many counties report much lower vaccination
rates. Maine CDC, COVID-19 Vaccination Dashboard, supra. Efforts
to reach the elderly population have also shown geographic
differences. See id.
Despite these measures, Maine faced a severe crisis in
its healthcare facilities when the delta variant hit the state.4
According to Maine CDC, the delta variant is more than twice as
3 "While our review is generally limited to the record
below, see Fed. R. App. P. 10, we may take judicial notice of facts
which are 'capable of being determined by an assuredly accurate
source.'" Pietrangelo v. Sununu, No. 21-1366, 2021 WL 4487850, at
*1 n.1 (1st Cir. Oct. 1, 2021) (citations omitted) (quoting United
States v. Hoyts Cinemas Corp., 380 F.3d 558, 570 (1st Cir. 2004)).
4 The emergency rule defines a healthcare facility as "a
licensed nursing facility, residential care facility, Intermediate
Care Facility for Individuals with Intellectual Disabilities
(ICF/IID), multi-level healthcare facility, hospital, or home
health agency subject to licensure by [Maine HHS]."
- 9 -
Case: 21-1826 Document: 00117800246 Page: 10 Date Filed: 10/19/2021 Entry ID: 6453714
contagious as previous variants and may cause more severe illness
than previous variants. An individual infected with the delta
variant may transmit it to others within twenty-four to thirty-
six hours of exposure. Those conditions threaten the entire
population of the state. But health care facilities are uniquely
susceptible to outbreaks of infectious diseases like COVID-19
because medical diagnosis and treatment often require close
contact between providers and patients (who often are medically
vulnerable). And outbreaks at healthcare facilities hamper the
state's ability to care for its residents suffering both from
COVID-19 and from other conditions. That problem is particularly
acute in Maine because, as Maine CDC's director stated, "the size
of Maine's healthcare workforce is limited, 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." Maine
CDC determined that at least 90% of a population must be vaccinated
to prevent community transmission of the delta variant. No county
in Maine, including those that have the highest vaccination rates,
has achieved the 90% level. Maine CDC, COVID-19 Vaccination
Dashboard, supra. Many counties are at much lower levels. Id.
And while community has a broader meaning than workers at a
particular healthcare facility, even at those facilities the 90%
figure has not been reached. At the end of the last monthly
reporting period before Maine CDC adopted the emergency rule,
- 10 -
Case: 21-1826 Document: 00117800246 Page: 11 Date Filed: 10/19/2021 Entry ID: 6453714
ambulatory surgical centers achieved 85.9% of workers vaccinated;
hospitals hit only 80.3%, nursing homes reached 73.0%, and
intermediate care facilities for individuals with intellectual
disabilities only 68.2%. On August 11, four of fourteen known
COVID-19 outbreaks in Maine were occurring at health care
facilities with "strong infection control programs."5 Those
outbreaks were mostly caused by healthcare workers bringing COVID-
19 into the facilities.
In adopting its emergency rule, Maine CDC considered the
adequacy of other measures to arrest the crisis in its healthcare
facilities and to protect both its healthcare infrastructure and
its residents. Maine CDC considered the following alternatives to
mandatory vaccination:
• Weekly or twice weekly testing. Maine CDC found
that individuals infected with the delta variant
can transmit the virus within twenty-four to
thirty-six hours of exposure. It thus concluded
that periodic testing would be ineffective.
• Daily testing. Maine CDC found that accurate
polymerase chain reaction tests take twenty-four to
seventy-two hours to provide results and that rapid
antigen tests are too inaccurate and too hard to
5 By September 3, that number would jump to nineteen out
of thirty-three outbreaks.
- 11 -
Case: 21-1826 Document: 00117800246 Page: 12 Date Filed: 10/19/2021 Entry ID: 6453714
reliably secure. It thus concluded that daily
testing would be ineffective.
• Vaccination exemptions for individuals previously
infected with COVID-19. Maine CDC found that the
scientific evidence was uncertain as to whether a
previously infected individual would develop
sufficient immunity to prevent transmission. It
thus concluded that it could not justify such an
exemption.
• Continued reliance on personal protective
equipment. Maine CDC found that the use of personal
protective equipment reduced but did not eliminate
the possibility of spreading COVID-19 in healthcare
facilities. It thus concluded that mandating
personal protective equipment alone would be
ineffective.
See Doe, 2021 WL 4783626, at *3. For these stated reasons, Maine
CDC concluded that none of its available alternatives to mandatory
vaccination would allow it to protect its healthcare
infrastructure and its residents.
On August 12, Maine HHS and Maine CDC issued an emergency
rule adding COVID-19 to the list of diseases against which
- 12 -
Case: 21-1826 Document: 00117800246 Page: 13 Date Filed: 10/19/2021 Entry ID: 6453714
healthcare workers must be vaccinated.6 Pointing to a 300%
increase in COVID-19 cases between June 19 and July 23 and the
danger of the delta variant, the agencies said the rule was
necessary because "[t]he presence of the highly contagious [d]elta
variant in Maine constitutes an imminent threat to public health,
safety, and welfare." In announcing the rule, Governor Mills
explained that "[healthcare] workers perform a critical role in
protecting the health of Maine people, and it is imperative that
they take every precaution against this dangerous virus,
especially given the threat of the highly transmissible [d]elta
variant." The rule requires healthcare facilities to "exclude[]
from the worksite" for the rest of the public health emergency
employees who have not been vaccinated. In interpretive guidance,
Maine CDC clarified that the mandate does not extend to those
healthcare workers who do not work on-site at a designated
facility, for example those who work remotely. Thus, employers
may accommodate some workers' requests for religious exemptions
provided that the accommodations do not allow unvaccinated workers
to enter healthcare facilities. Maine HHS and Maine CDC later
6 Maine agencies may adopt temporary rules on an emergency
basis without going through regular notice and comment procedures
"to avoid an immediate threat to public health, safety or general
welfare." Me. Rev. Stat. Ann. tit. 5, § 8054; see Ms. S. v. Reg'l
Sch. Unit 72, 829 F.3d 95, 105–06 (1st Cir. 2016) (describing Maine
rulemaking procedures). Along with adopting the emergency rule,
Maine CDC has proposed a permanent rule, which is going through a
notice and comment period.
- 13 -
Case: 21-1826 Document: 00117800246 Page: 14 Date Filed: 10/19/2021 Entry ID: 6453714
announced that they would not begin enforcing the rule until
October 29.
Seeking to enjoin the emergency rule, the appellants
filed suit in the District of Maine. The appellants are
unvaccinated Maine healthcare workers (and a healthcare provider)
who object to vaccination with any of the three available COVID-
19 vaccines. They claim that their religious beliefs prohibit
them from using any product "connected in any way with abortion."
The appellants allege that Johnson & Johnson/Janssen used cells
ultimately derived from an aborted fetus to produce its vaccine
and that Moderna and Pfizer/BioNTech used the same type of cells
in researching their vaccines. So, the appellants say, their
religion prohibits them from being vaccinated. At least one
appellant has lost her job with appellee Genesis Healthcare because
she refused to get vaccinated. All the appellants allege causes
of action under the Free Exercise Clause, the Equal Protection
Clause, the Supremacy Clause, Title VII, and 42 U.S.C. § 1985.
The appellants sought an ex parte temporary restraining
order and a preliminary injunction. The district court denied the
motion for a temporary restraining order, concluding that the
appellants failed to satisfy the requirements of Federal Rule of
Civil Procedure 65(b)(1). It then received briefing and heard
argument on the motion for a preliminary injunction. Following
- 14 -
Case: 21-1826 Document: 00117800246 Page: 15 Date Filed: 10/19/2021 Entry ID: 6453714
the hearing, the district court denied the motion in a forty-one-
page decision. Doe, 2021 WL 4783626, at *2.
The appellants sought and we denied an injunction
pending appeal. We expedited proceedings and now resolve the
appellants' appeal of the district court's order denying a
preliminary injunction.
II.
We review the district court's factual findings for
clear error, its legal conclusions de novo, and its ultimate
decision to deny the preliminary injunction for abuse of
discretion.7 Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist.,
969 F.3d 12, 21 (1st Cir. 2020).
"A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
7 The appellants claim that our review of the facts in
First Amendment cases must be de novo. The free speech cases they
cite for that proposition, however, describe the deference due to
a jury's verdict and turn on mixed questions of fact and law. See
Sindi v. El-Moslimany, 896 F.3d 1, 14 (1st Cir. 2018) (citing Bose
Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984));
Veilleux v. Nat'l Broad. Co., 206 F.3d 92, 106 (1st Cir. 2000)
(citing Bose). They do not stand for the proposition that our
review of all factual findings is de novo. See Bose, 466 U.S. at
499-501 (explaining that in defamation cases, courts must engage
in independent review of mixed questions of fact and law but that
Rule 52(a) still applies to findings of fact). Nor is the
distinction material as the appellants largely do not contest the
district court's factual findings.
- 15 -
Case: 21-1826 Document: 00117800246 Page: 16 Date Filed: 10/19/2021 Entry ID: 6453714
an injunction is in the public interest." Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008).
A.
1.
Applying the standard of review set forth above, we begin
our analysis with the appellants' free exercise claims.
The First Amendment's Free Exercise Clause, as
incorporated against the states by the Fourteenth Amendment,
protects religious liberty against government interference. See
Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940). When a
religiously neutral and generally applicable law incidentally
burdens free exercise rights, we will sustain the law against
constitutional challenge if it is rationally related to a
legitimate governmental interest. See Fulton v. City of
Philadelphia, 141 S. Ct. 1868, 1876 (2021) (citing Emp. Div. v.
Smith, 494 U.S. 872, 878-82 (1990)). When a law is not neutral or
generally applicable, however, we may sustain it only if it is
narrowly tailored to achieve a compelling governmental interest.
Id. at 1881 (citing Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 546 (1993)).
To be neutral, a law may not single out religion or
religious practices. See Lukumi, 508 U.S. at 532-534. "Government
fails to act neutrally when it proceeds in a manner intolerant of
religious beliefs or restricts practices because of their
- 16 -
Case: 21-1826 Document: 00117800246 Page: 17 Date Filed: 10/19/2021 Entry ID: 6453714
religious nature." Fulton, 141 S. Ct. at 1877 (citing Masterpiece
Cakeshop, Ltd. v. Colo. Civ. Rts. Comm'n, 138 S. Ct. 1719, 1730–
32 (2018), and Lukumi, 508 U.S. at 533).
To be generally applicable, a law may not selectively
burden religiously motivated conduct while exempting comparable
secularly motivated conduct. See Lukumi, 508 U.S. at 543. "A law
is not generally applicable if it 'invite[s]' the government to
consider the particular reasons for a person's conduct by providing
'a mechanism for individualized exemptions.'" Fulton, 141 S. Ct.
at 1877 (quoting Smith, 494 U.S. at 884) (alteration in original).
Under that rule, if a state reserves the authority to "grant
exemptions based on the circumstances underlying each
application," it must provide a compelling reason to exclude
"religious hardship" from its scheme. Id. (quoting Smith, 494
U.S. at 884). Nor is a law generally applicable "if it prohibits
religious conduct while permitting secular conduct that undermines
the government's asserted interests in a similar way." Id. (citing
Lukumi, 508 U.S. at 542-46).
We see no error in the district court's conclusion that
the appellants have not met their burden of showing a likelihood
of success on any aspect of their free exercise claims.
The appellants argue that the emergency rule is not
neutral and is not generally applicable. They have shown no
probability of success on those issues.
- 17 -
Case: 21-1826 Document: 00117800246 Page: 18 Date Filed: 10/19/2021 Entry ID: 6453714
To start with, the rule is facially neutral, see Trump
v. Hawaii, 138 S. Ct. 2392, 2418 (2018), and no argument has been
developed to us that the state singled out religious objections to
the vaccine "because of their religious nature." Fulton, 141 S.
Ct. at 1877 (emphasis added). The state legislature removed both
religious and philosophical exemptions from mandatory vaccination
requirements, and thus did not single out religion alone.
The rule is also generally applicable. It applies
equally across the board. The emergency rule does not require the
state government to exercise discretion in evaluating individual
requests for exemptions. Unlike, for example, Sherbert v. Verner,
374 U.S. 398 (1963), in which the government had discretion to
decide whether "good cause" existed to excuse the requirement of
an unemployment benefits scheme, id. at 399-401, 406, here there
is no "mechanism for individualized exemptions" of the kind at
issue in Fulton, 141 S. Ct. at 1877 (quotation marks and citation
omitted). Instead, there is a generalized "medical exemption . . .
available to an employee who 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 diseases may be medically inadvisable." Me. Rev. Stat. tit.
22, § 802(4-B). No case in this circuit and no case of the Supreme
Court holds that a single objective exemption renders a rule not
- 18 -
Case: 21-1826 Document: 00117800246 Page: 19 Date Filed: 10/19/2021 Entry ID: 6453714
generally applicable. See Maryville Baptist Church, Inc. v.
Beshear, 957 F.3d 610, 614 (6th Cir. 2020) (per curiam) ("As a
rule of thumb, the more exceptions to a prohibition, the less
likely it will count as a generally applicable, non-discriminatory
law.").
The rule is also generally applicable because it does
not permit "secular conduct that undermines the government's
asserted interests in a similar way." Fulton, 141 S. Ct. at 1877;
see Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) ("[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."). We conclude that exempting
from vaccination only those whose health would be endangered by
vaccination does not undermine Maine's asserted interests here:
(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. See Smith, 494 U.S. at 874, 890 (upholding as
constitutional a criminal prohibition on peyote ingestion that
exempted those to whom "the substance has been prescribed by a
medical practitioner" with no exemption for religious use).
- 19 -
Case: 21-1826 Document: 00117800246 Page: 20 Date Filed: 10/19/2021 Entry ID: 6453714
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 its three articulated goals, Maine has decided to
require all healthcare workers who can be vaccinated safely to be
vaccinated.
Providing a medical exemption does not undermine any of
Maine's three goals, let alone in a manner similar to the way
permitting an exemption for religious objectors would. Rather,
providing healthcare workers with medically contraindicated
vaccines would threaten the health of those workers and thus
compromise both their own health and their ability to provide care.
The medical exemption is meaningfully different from exemptions to
other COVID-19-related restrictions that the Supreme Court has
considered. In those cases, the Supreme Court addressed whether
a state could prohibit religious gatherings while allowing secular
activities involving everyday commerce and entertainment and it
concluded that those activities posed a similar risk to physical
health (by risking spread of the virus) as the prohibited religious
activities. See, e.g., Tandon, 141 S. Ct. at 1297 (rejecting the
California order that restricted worship but permitted larger
groups to gather in "hair salons, retail stores, personal care
services, movie theaters, private suites at sporting events and
concerts, and indoor restaurants"); Roman Cath. Diocese of
- 20 -
Case: 21-1826 Document: 00117800246 Page: 21 Date Filed: 10/19/2021 Entry ID: 6453714
Brooklyn v. Cuomo, 141 S. Ct. 63, 66–68 (2020) (per curiam)
(rejecting the New York order that restricted worship but permitted
larger groups to gather at "acupuncture facilities, camp grounds,
garages, as well as many [businesses] whose services are not
limited to those that can be regarded as essential, such as all
plants manufacturing chemicals and microelectronics and all
transportation facilities"); see also S. Bay United Pentecostal
Church v. Newsom, 141 S. Ct. 716, 717 (2021) (statement of Gorsuch,
J., joined in part by four justices) (criticizing the California
order that restricted worship but permitted larger groups to gather
in "most retail" establishments and "other businesses"). In
contrast to those cases, Maine CDC's rule offers only one
exemption, and that is because the rule itself poses a physical
health risk to some who are subject to it.8 Thus, carving out an
exception for those people to whom that physical health risk
applies furthers Maine's asserted interests in a way that carving
out an exemption for religious objectors would not.
Unlike the medical exemption, a religious exemption
would not advance the three interests Maine has articulated. In
contrast to the restrictions at issue in Tandon, Roman Catholic
Diocese, and South Bay United, Maine's rule does not rest on
8 Those risks can be serious and even life threatening.
For example, the COVID-19 vaccines are contraindicated for those
who have had allergic reactions to a component of the vaccines.
- 21 -
Case: 21-1826 Document: 00117800246 Page: 22 Date Filed: 10/19/2021 Entry ID: 6453714
assumptions about the public health impacts of various secular or
religious activities. Instead, it requires all healthcare workers
to be vaccinated as long as the vaccination is not medically
contraindicated -- that is as long as it furthers the state's
health-based interests in requiring vaccination. Thus, the
comparability concerns the Supreme Court flagged in the Tandon
line of cases are not present here. See Tandon, 141 S. Ct. at
1296 ("Comparability [for free exercise purposes] is concerned
with the risks various activities pose, not the reasons why people
gather." (emphasis added)). By analogy, if Maine's emergency rule
were an occupancy limit, it would apply to all indoor activities
equally based on facility size, but it would exempt healthcare
facilities. That analogous policy would serve the state's goal of
protecting public health, while maximizing the number of residents
able to access healthcare and thus minimizing health risks. Such
a rule would not fall afoul of the Supreme Court's decisions. See
Tandon, 141 S. Ct. at 1296. The rule is generally applicable.
And it easily satisfies rational basis review.
Strict scrutiny does not apply here. But even if it
did, the plaintiffs still have no likelihood of success.
"Stemming the spread of COVID–19 is unquestionably a
compelling interest . . . ." Roman Cath. Diocese of Brooklyn, 141
S. Ct. at 67; see also Workman v. Mingo Cnty. Bd. of Educ., 419 F.
App'x 348, 353 (4th Cir. 2011) ("[T]he state's wish to prevent the
- 22 -
Case: 21-1826 Document: 00117800246 Page: 23 Date Filed: 10/19/2021 Entry ID: 6453714
spread of communicable diseases clearly constitutes a compelling
interest."). Few interests are more compelling than protecting
public health against a deadly virus. 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. In focusing the
vaccination requirement on healthcare workers, Maine has taken
steps to increase the likelihood of protecting the health of its
population, particularly those who are most likely to suffer severe
consequences if they contract COVID-19 or are denied other needed
medical treatment by an overwhelmed healthcare system.
We begin by asking "not whether the [state] has a
compelling interest in enforcing its [rule] generally, but whether
it has such an interest in denying an exception" to plaintiffs.
Fulton, 141 S. Ct. at 1881. If any healthcare workers providing
such services, including the plaintiffs, were exempted from the
policy for non-health-related reasons, the most vulnerable Mainers
would be threatened. Cf. id. at 1881-82.
Maine also reasonably used all the tools available to
fight contagious diseases. Its rule, thus, does not fail narrow
- 23 -
Case: 21-1826 Document: 00117800246 Page: 24 Date Filed: 10/19/2021 Entry ID: 6453714
tailoring.9 The available tools roughly fit into two categories.
The first category involves pharmaceutical interventions. The
second involves non-pharmaceutical interventions. Maine CDC and
Maine HHS have considered their experience with both categories.
The first category itself contains two types of
interventions. The COVID-19 vaccines protect against infection
and lower the risk of adverse health consequences, including death,
should a vaccinated person become infected. Vaccination also
reduces a person's risk of transmitting COVID-19 to others. There
are also treatments that can be administered to infected patients
once they have contracted the disease. Because those treatments
do not prevent infections, Maine established in the record that
reliance on such treatment options would not meet its goals.
The second category is one in which Maine actively
engaged before the mandate and included measures like testing,
masking, and social distancing. Those measures proved to be
ineffective in meeting Maine's goals. As to testing, Maine CDC
9 The appellants claim they were forced to bear the burden
of showing that the regulation failed strict scrutiny. The
district court's decision belies that claim. See Doe, 2021 WL
4783626, at *12 ("The government must also demonstrate that it
'seriously undertook to address the problem with less intrusive
tools readily available to it' and 'that it considered different
methods that other jurisdictions have found effective.'" (quoting
McCullen v. Coakley, 573 U.S. 464, 494 (2014)). As we do here,
the district court required Maine to show that its rule satisfied
strict scrutiny. Maine met that burden by showing that it
considered alternative means of achieving its goals and that those
alternatives were inadequate.
- 24 -
Case: 21-1826 Document: 00117800246 Page: 25 Date Filed: 10/19/2021 Entry ID: 6453714
concluded that regular testing cannot prevent transmission given
how quickly an infected person can transmit the delta variant and
how long accurate testing takes. And Maine experienced multiple
COVID-19 outbreaks in healthcare facilities adhering to mandatory
masking and distancing rules. Thus, Maine has shown that non-
pharmaceutical interventions are inadequate to meet its goals.
See Doe, 2021 WL 4783626, at *3, *12-14 (making factual findings
about the inadequacy of non-pharmaceutical alternatives).
Maine has demonstrated that it has tried many
alternatives to get its healthcare workers vaccinated short of a
mandate. These include vaccine prioritization, worksite vaccine
administration, and prizes for vaccination. But both its
healthcare-worker-focused efforts and general incentives have
failed to achieve the at least 90% vaccination rate required to
halt community transmission of the delta variant. Maine has no
alternative to meet its goal other than mandating healthcare
workers to be vaccinated. See id.
As part of our narrow tailoring analysis, we consider
whether the rule is either under- or overinclusive. See Lukumi,
508 U.S. at 546. The rule is not. The regulation applies to all
healthcare workers for whom a vaccine is not medically
contraindicated. Indeed, eliminating the only exemption would
likely be unconstitutional itself. See Jacobson v. Massachusetts,
197 U.S. 11, 38–39 (1905). Nor is the regulation overinclusive.
- 25 -
Case: 21-1826 Document: 00117800246 Page: 26 Date Filed: 10/19/2021 Entry ID: 6453714
It does not extend beyond the narrow sphere of healthcare workers,
limiting the universe of people covered to those who regularly
enter healthcare facilities. The emergency rule is thus focused
to achieve the state's goal of keeping its residents safe because
it requires vaccination only of those most likely to come into
regular contact with those for whom the consequences of contracting
COVID-19 are likely to be most severe.
Out-of-circuit authorities to the contrary are
distinguishable and not persuasive. The appellants stress
Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,
170 F.3d 359 (3d Cir. 1999) (Alito, J.), in which the Third Circuit
prohibited a police department from offering medical but not
religious exemptions to its facial hair policy. It applied strict
scrutiny to the policy after determining that the police
department's disparate allowance of exemptions suggested a
discriminatory intent. Id. at 365. But critically, the police
department sought to justify its policy by pointing to its interest
in a uniform appearance among police officers. Id. at 366. Thus,
the Third Circuit concluded, the medical exemptions undermined the
police department's interests, which "indicate[d] that the
[d]epartment has made a value judgment that secular (i.e., medical)
motivations for wearing a beard are important enough to overcome
its general interest in uniformity but that religious motivations
are not." Id. But, in doing so, the court also distinguished the
- 26 -
Case: 21-1826 Document: 00117800246 Page: 27 Date Filed: 10/19/2021 Entry ID: 6453714
police department's exemption from the no-beard policy for
undercover officers, explaining that the undercover officer
exemption "does not undermine the [d]epartment's interest in
uniformity because undercover officers obviously are not held out
to the public as law enforcement." Id. (quotation omitted). The
court further recognized that the very restriction on a controlled
substance that the Supreme Court upheld in Smith contained an
exemption permitting use of the substance for individuals to whom
the substance "ha[d] been prescribed by a medical practitioner."
Id. (quoting Smith, 494 U.S. at 874). Neither this medical
prescription exemption in Smith, the court explained, nor the
exemption for undercover officers, "trigger heightened scrutiny
because the Free Exercise Clause does not require the government
to apply its laws to activities that it does not have an interest
in preventing." Id. Here, in contrast, the medical exemptions
support Maine's public health interests. Maine would hardly be
protecting its residents if it required them to accept medically
contraindicated treatments. Rather than undermine Maine's
asserted governmental interest, the health exemption supports it.
Therefore, Maine's providing medical but not religious or
philosophical exemptions does not suggest an improper motive.
Nor do the appellants find support in their citation of
the Sixth Circuit's recent decision denying a stay pending appeal
of a preliminary injunction in Dahl v. Board of Trustees of Western
- 27 -
Case: 21-1826 Document: 00117800246 Page: 28 Date Filed: 10/19/2021 Entry ID: 6453714
Michigan University, No. 21-2945, 2021 WL 4618519 (6th Cir. Oct.
7, 2021) (per curiam). In Dahl, the District Court for the Western
District of Michigan preliminarily enjoined a state university
from requiring student-athletes to be vaccinated in order to
participate in athletic activities. Id. at *1. The university's
policy provided that "[m]edical or religious exemptions and
accommodations will be considered on an individual basis." Id. at
*4. The Sixth Circuit held that the policy provided a "mechanism
for individualized exemptions," applied strict scrutiny, and held
that the policy was not narrowly tailored to meet the university's
goals. Id. at *4-5. The emergency rule here is materially
different from the university's policy in Dahl. First, Maine's
emergency rule does not allow any government official discretion
to consider the merits of an individual's request for an exemption.
Even so and even assuming that strict scrutiny applies, Maine has
narrowly tailored its rule. That conclusion follows from the
second key distinction between this case and Dahl: the vaccination
requirement in Dahl required vaccination only of athletes, not of
the thousands of other students with whom the athletes may live,
study, eat, and socialize. See id. at *5. In contrast, the Maine
rule covers everyone who works with the medically vulnerable
population in healthcare facilities. Unlike the university's
athletes-only policy, Maine's emergency rule is not underinclusive
even under Dahl because it encompasses every employee working in
- 28 -
Case: 21-1826 Document: 00117800246 Page: 29 Date Filed: 10/19/2021 Entry ID: 6453714
a setting posing a serious risk of COVID-19 exposure and
transmission.
Finally, the appellants' reliance on recent decisions in
New York does not advance their cause. See Dr. A. v. Hochul, No.
1:21-cv-1009, 2021 WL 4734404 (N.D.N.Y. Oct. 12, 2021) (granting
preliminary injunction); see also We the Patriots USA, Inc. v.
Hochul, No. 21-2179 (2d Cir. Sept. 30, 2021) (unpublished order)
(granting in part injunction pending appeal). In Dr. A., a group
of healthcare workers challenged under the Free Exercise Clause an
emergency regulation issued by the New York State Public Health &
Health Planning Council, which required most healthcare workers in
that state to be vaccinated against COVID-19.10 The Maine
regulation here is distinguishable from the New York regulation at
issue in Dr. A. Eight days after New York officials promulgated
a version of the regulation containing a religious exemption, they
amended the regulation to "eliminate the religious exemption."
2021 WL 4734404, at *8. In light of that change, Dr. A. found
that state officials had singled out religious believers through
a "religious gerrymander." Id. In contrast, Maine's legislature
eliminated religious and philosophical exemptions to mandatory
vaccination in May 2019 and Maine voters approved the law in March
10 The Dr. A. plaintiffs also raised Title VII claims. We
believe the Title VII analysis in Dr. A. is erroneous for the same
reasons the appellants' Title VII claims fail here. See infra
Part II.A.2.
- 29 -
Case: 21-1826 Document: 00117800246 Page: 30 Date Filed: 10/19/2021 Entry ID: 6453714
2020. That timeline does not support a claim of religious
gerrymandering. Nor have the appellants developed a religious
animus argument on appeal. Dr. A. is also inapplicable because it
found that New York had failed to explain why the testing and
masking alternatives offered to medically exempt healthcare
workers were inadequate. 2021 WL 4734404, at *9-10. In contrast,
Maine has explained, and the district court found, that testing
and masking would not achieve Maine's vital goals to the extent
that vaccination would. See Doe, 2021 WL 4783626, at *14.
Further, unlike in Dr. A., Maine has demonstrated that given the
"limited" nature of its healthcare workforce and its significant
elderly population -- the highest in the nation -- it has tried
and failed to control "numerous COVID-19 outbreaks at health care
facilities," even after multiple attempts to implement a variety
of alternative measures. In confronting the various risks to its
own population and its own healthcare delivery system, Maine's
rule does not violate the Constitution. See S. Bay United
Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613-14 (2020)
(Roberts, C.J., concurring).
2.
The appellants also assert claims against the state
appellees under the Equal Protection Clause, against the hospitals
under Title VII, and against all appellees under the Supremacy
Clause and 42 U.S.C. § 1985. We find no error in the district
- 30 -
Case: 21-1826 Document: 00117800246 Page: 31 Date Filed: 10/19/2021 Entry ID: 6453714
court's conclusion that they are unlikely to succeed on any of
those claims. See Doe, 2021 WL 4783626, at *15-16.
When a free exercise challenge fails, any equal
protection claims brought on the same grounds are subject only to
rational-basis review. Locke v. Davey, 540 U.S. 712, 720 n.3
(2004); Wirzburger v. Galvin, 412 F.3d 271, 282 (1st Cir. 2005).
As the appellants are unlikely to succeed on their free exercise
claims, they are unlikely to succeed on their equal protection
claims as well.
The appellants' Supremacy Clause argument rests on their
assertion that the hospitals (in concert with the state appellees)
have "claim[ed] that the protections of Title VII are inapplicable
in the State of Maine." The record simply does not support that
argument. The parties agree that Title VII is the supreme law of
the land; the hospitals merely dispute that Title VII requires
them to offer the appellants the religious exemptions they seek.
See Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 281-83
(1987) (describing "narrow scope" of preemption under Title VII).
The appellants have not shown their entitlement to an injunction
under the Supremacy Clause.
Nor do the appellants fare better in their Title VII
arguments for a preliminary injunction.11 To obtain a preliminary
11 Appellee Northern Light argues that the appellants
waived their request for injunctive relief by not including it in
- 31 -
Case: 21-1826 Document: 00117800246 Page: 32 Date Filed: 10/19/2021 Entry ID: 6453714
injunction, the appellants must show that they have inadequate
remedies at law. See Ruckelshaus v. Monsanto Co., 467 U.S. 986,
1019 (1984). When litigants seek to enjoin termination of
employment, money damages ordinarily provide an appropriate
remedy. To obtain an injunction, therefore, the appellants must
show a "genuinely extraordinary situation." Sampson v. Murray,
415 U.S. 61, 92 n.68 (1974); cf. Matrix Grp. Ltd. v. Rawlings
Sporting Goods Co., 378 F.3d 29, 34 (1st Cir. 2004) (holding that
an injunction is unavailable in ordinary breach of contract
action). The district court determined that the appellants "have
not shown that the injuries they have suffered or may suffer --
the loss of their employment and economic harm -- meet [that] high
standard," noting that the appellants had not exhausted their
administrative remedies. Doe, 2021 WL 4783626, at *16; see Fort
Bend Cnty. v. Davis, 139 S. Ct. 1843, 1850-51 (2019) (describing
exhaustion requirements).
We find no error in that conclusion. Indeed, our court
has expressly declined to provide such preliminary relief, and has
declined to "reach the question of what circumstances would justify
a district court in granting preliminary relief in such cases,"
their earlier request for an injunction pending appeal. We may
properly consider that request in our review here of the district
court's denial of preliminary injunctive relief against all
parties, as the appellants have preserved and developed their
argument on appeal.
- 32 -
Case: 21-1826 Document: 00117800246 Page: 33 Date Filed: 10/19/2021 Entry ID: 6453714
finding only that "[a]t a minimum, an aggrieved person seeking
preliminary relief outside the statutory scheme for alleged Title
VII violations would have to make a showing of irreparable injury
sufficient in kind and degree to justify the disruption of the
prescribed administrative process." Bailey v. Delta Air Lines,
Inc., 722 F.2d 942, 944 (1st Cir. 1983). The appellants have
failed to demonstrate why they are entitled to pre-termination
relief despite their failure to exhaust, given that the loss of
employment "does not usually constitute irreparable injury" except
in "the genuinely extraordinary situation" going beyond mere cases
of "insufficiency of savings or difficulties in immediately
obtaining other employment." Sampson, 415 U.S. at 90, 91 n.68.
That is true regardless of whether the appellants have
administratively exhausted their claims. The appellants' failure
to exhaust does not put them in a better position to seek
extraordinary relief. And even if the appellants were entitled to
an injunction, they have not shown a likelihood of success on the
ultimate merits questions. The hospitals need not provide the
exemption the appellants request because doing so would cause them
to suffer undue hardship. See Cloutier v. Costco Wholesale Corp.,
390 F.3d 126, 134 (1st Cir. 2004); see also Trahan v. Wayfair
Maine, LLC, 957 F.3d 54, 67 (1st Cir. 2020) (holding that
"liability for failure to engage in an interactive process depends
- 33 -
Case: 21-1826 Document: 00117800246 Page: 34 Date Filed: 10/19/2021 Entry ID: 6453714
on a finding that the parties could have discovered and implemented
a reasonable accommodation through good faith efforts").
Finally, the appellants are unlikely to succeed on their
§ 1985 conspiracy claims. To properly plead a § 1985 conspiracy,
the appellants "must allege the existence of a conspiracy, allege
that the purpose of the conspiracy is 'to deprive the plaintiff of
the equal protection of the laws,' describe at least one overt act
in furtherance of the conspiracy, and 'show either injury to person
or property, or a deprivation of a constitutionally protected
right.'" Alston v. Spiegel, 988 F.3d 564, 577 (1st Cir. 2021)
(quoting Pérez-Sánchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st
Cir. 2008)). To allege that a civil rights conspiracy exists,
they "must plausibly allege facts indicating an agreement among
the conspirators to deprive [them] of [their] civil rights." Id.
at 577-78 (quoting Parker v. Landry, 935 F.3d 9, 18 (1st Cir.
2019)). Here the appellants do not allege that the hospitals had
any role in the amendment of the statute or issuance of the
regulation, only that they supported the regulation after the fact.
Thus, their conspiracy claims are unlikely to succeed.
B.
Having found no error in the district court's conclusion
that the appellants are unlikely to succeed on the merits of any
of their claims, we turn to its handling of the other preliminary
injunction factors.
- 34 -
Case: 21-1826 Document: 00117800246 Page: 35 Date Filed: 10/19/2021 Entry ID: 6453714
Even if, arguendo, these claims presumptively cause
irreparable harm, we think the state has overcome any such
presumption. Further, because the appellants have not shown a
constitutional or statutory violation, they have not shown that
enforcement of the rule against them would cause them any legally
cognizable harm.
Finally, we review the district court's balancing of the
equities and analysis of the public interest together, as they
"merge when the [g]overnment is the opposing party." Nken v.
Holder, 556 U.S. 418, 435 (2009). Maine's interest in safeguarding
its residents is paramount. While we do not diminish the
appellants' liberty of conscience, we cannot find, absent any
constitutional or statutory violation, any error in the district
court's conclusion that the rule promotes strong public interests
and that an injunction would not serve the public interest. See
Doe, 2021 WL 4783626, at *17.
III.
The district court's order denying a preliminary
injunction is affirmed.
- 35 -
2
3
Case: 21-1826 Document: 00117798575 Page: 1 Date Filed: 10/15/2021 Entry ID: 6452863
United States Court of Appeals
For the First Circuit
No. 21-1826
JOHN DOES, 1-3; JACK DOES, 1-1000; JANE DOES, 1-6; JOAN DOES, 1-1000,
Plaintiffs - Appellants,
V.
JANET T. MILLS, in her official capacity as Governor of the State of Maine; JEANNE M.
LAMBREW, in her official capacity as Commissioner of the Maine Department of Health and
Human Services; NIRAV D. SHAH, in his official capacity as Director of the Maine Center for
Disease Control and Prevention, MAINEHEALTH; GENESIS HEALTHCARE OF MAINE,
LLC; GENESIS HEALTHCARE, LLC; NORTHERN LIGHT HEALTH FOUNDATION;
MAINEGENERAL HEALTH,
Defendants - Appellees.
Before
Howard, Chief Judge,
Lynch and Barron, Circuit Judges.
ORDER OF COURT
Entered: October 15, 2021
The appellants' emergency motion for an injunction pending appeal is denied.
By the Court:
Maria R. Hamilton, Clerk
cc:
Ryan P. Dumais
James R. Erwin
Roger K. Gannam
Richard Brian Katskee
Thomas A. Knowlton
Case: 21-1826 Document: 00117798575 Page:2 Date Filed: 10/15/2021 Entry ID: 6452863
Alexander Joseph Luchenitser
Horatio Gabriel Mihet
Kimberly Leehaug Patwardhan
Katharine Ives Rand
Daniel Joseph Schmid
Valerie A. Wright
4
From: cmecf@med.uscourts.gov
To: cmecfnef@med.uscourts.gov
Subject: Activity in Case 1:21-cv-00242-JDL JANE DOES 1-6 et al v. MILLS et al Order on Motion for Order
Date: Wednesday, October 13, 2021 4:50:00 PM
This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT
RESPOND to this e-mail because the mail box is unattended.
***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States
policy permits attorneys of record and parties in a case (including pro se litigants) to
receive one free electronic copy of all documents filed electronically, if receipt is required
by law or directed by the filer. PACER access fees apply to all other users. To avoid later
charges, download a copy of each document during this first viewing. However, if the
referenced document is a transcript, the free copy and 30 page limit do not apply.
U.S. District Court
District of Maine
Notice of Electronic Filing
The following transaction was entered on 10/13/2021 at 4:49 PM EST and filed on 10/13/2021
Case Name: JANE DOES 1-6 et al v. MILLS et al
Case Number: 1:21-cv-00242-JDL
Filer:
Document Number: 68(No document attached)
Docket Text:
ORDER re [67] Motion for Order - Plaintiffs have filed an Emergency Request
for Ruling on Pending Motion for Injunction Pending Appeal. ECF No. 67. The
Plaintiffs have not filed a separate Motion for an Injunction Pending Appeal.
However, I will treat the Emergency Request as a motion seeking a stay or
other relief authorized by Fed. R. App. P. 8(a)(1)(C). For the reasons stated in
the Order Denying Motion for Preliminary Injunction (ECF No. 65), Plaintiffs
Motion for an Injunction Pending Appeal (ECF No. 67) is ORDERED denied. By
JUDGE JON D. LEVY. (aks)
1:21-cv-00242-JDL Notice has been electronically mailed to:
DANIEL J. SCHMID dschmid@lc.org
HORATIO G. MIHET hmihet@lc.org
JAMES R. ERWIN jerwin@pierceatwood.com, ngiachinta@pierceatwood.com
KATHARINE I. RAND krand@pierceatwood.com, ngiachinta@pierceatwood.com
KATHERINE LEE PORTER kporter@eatonpeabody.com
KIMBERLY L. PATWARDHAN kimberly.patwardhan@maine.gov,
laura.solisfarias@maine.gov
MATHEW D. STAVER court@lc.org
ROGER K. GANNAM rgannam@lc.org, court@LC.org
RYAN P. DUMAIS rdumais@eatonpeabody.com, ahartikka@eatonpeabody.com,
ecabral@eatonpeabody.com
STEPHEN C. WHITING mail@whitinglawfirm.com
THOMAS A. KNOWLTON thomas.a.knowlton@maine.gov, amy.oliver@maine.gov,
pamela.chaput@maine.gov
VALERIE A. WRIGHT Valerie.A.Wright@maine.gov, Laura.SolisFarias@maine.gov
1:21-cv-00242-JDL Notice has been delivered by other means to:
5
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 1 of 41 PageID #: 763
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JANE DOES 1-6 et al., )
)
Plaintiffs, )
)
v. ) 1:21-cv-00242-JDL
)
JANET T. MILLS, in Her Official )
Capacity as Governor of the )
State of Maine, et al., )
)
Defendants. )
ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
I. INTRODUCTION
Plaintiffs, eight individual healthcare workers and one individual healthcare
provider, seek a preliminary injunction (ECF No. 3) prohibiting Janet T. Mills,
Maine’s Governor, and other named defendants from requiring all employees of
designated healthcare facilities to be vaccinated against the SARS-CoV-2
coronavirus—the cause of COVID-19 infections—through the enforcement of the rule,
Immunization Requirements for Healthcare Workers, 10-144-264 Me. Code R. §§ 1-7
(2021)1 (the “Rule”), as amended August 12, 2021. The Plaintiffs contend that the
vaccination requirement violates their First Amendment and other federal
constitutional and statutory rights because it does not exempt from its requirements
individuals whose sincerely held religious beliefs cause them to object to being
1 The Rule can be found at https://www.maine.gov/dhhs/mecdc/rules/maine-cdc-rules.shtml
(perma.cc/R3UM-ZBN3) (navigate to the text of the Rule by selecting “Emergency,” and then choosing
“Emergency Rulemaking: 10-144 CMR Ch. 264 – Immunization Requirements for Healthcare
Workers.”).
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 2 of 41 PageID #: 764
vaccinated against COVID-19. Seven of the nine plaintiffs also contend that their
employers violated federal employment law by refusing to grant them a religious
exemption from the vaccination requirement.
The Plaintiffs’ five-count Complaint (ECF No. 1) names as defendants, in their
official capacities, Governor Mills; Dr. Nirav D. Shah, the Director of Maine CDC;
and Jeanne M. Lambrew, the Commissioner of the Maine Department of Health and
Human Services (“DHHS”) (the “State Defendants”). The Complaint also names five
incorporated entities that operate healthcare facilities in Maine: Defendants Genesis
Healthcare of Maine, LLC; Genesis Healthcare, LLC; Northern Light Health
Foundation; MaineHealth; and MaineGeneral Health (the “Hospital Defendants”).
The Rule requires all employees of designated healthcare facilities 2 to receive
their final dose of the vaccination against the SARS-CoV-2 coronavirus by September
17, 2021. 10-144-264 Me. Code R. § 5(A)(7) (effective Aug. 12, 2021). On September
2, 2021, the DHHS and Maine CDC announced that they would not begin enforcing
the Rule’s provisions until October 29, 2021, to allow additional time for employees
of designated healthcare facilities to comply with the Rule by receiving their final
vaccine dose by October 15. ECF No. 49-5 at ¶ 37. If granted, the preliminary
2 Under the Rule, designated healthcare facility “means a licensed nursing facility, residential care
facility, Intermediate Care Facility for Individuals with Intellectual Disabilities (ICF/IID), multi-level
healthcare facility, hospital, or home health agency subject to licensure by the State of Maine,
Department of Health and Human Services Division of Licensing and Certification.” The Rule also
applies to dental health practices (where dentists and/or dental hygienists provide oral health care)
and to Emergency Medical Services operations. 10-144-264 Me. Code R. § 1(D), (E), (H) (Aug. 12,
2021). All references to “designated healthcare facilities” in this Order include all of the entities
subject to the Rule’s requirements.
2
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 3 of 41 PageID #: 765
injunction would prohibit the Defendants from enforcing the Rule or terminating the
Plaintiffs’ employment based on their refusal to be vaccinated against COVID-19.
A hearing on the Motion for Preliminary Injunction was held on September 20,
2021. 3 After careful consideration and for the reasons that follow, I deny the
Plaintiffs’ motion. (ECF No 3).
II. BACKGROUND
The parties have filed declarations and various exhibits in support of their
positions. Except where otherwise noted, I have based my findings on these
documents. 4 Additionally, I take judicial notice of certain additional facts pertinent
to the Motion. See In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 20 (1st Cir.
2003) (noting that although a district court is generally limited to examining the
record, it may also consider “the documents incorporated by reference in it, matters
of public record, and other matters susceptible to judicial notice”); see also Loucka v.
Lincoln Nat’l Life Ins. Co., 334 F. Supp. 3d 1, 8-9 (D.D.C. 2018) (“[T]he CDC’s Lyme-
testing criteria and procedures are a matter of public record, and it cannot be
reasonably questioned that the agency’s website is an accurate source for those
standards.”).
3 The Plaintiffs’ Motion also included a request for an ex parte temporary restraining order to the
same effect. On August 26, 2021, after a conference with the Plaintiffs’ counsel, I denied that portion
of the Motion (ECF No. 11), concluding that the Plaintiffs had not satisfied the requirements of Federal
Rule of Civil Procedure 65(b)(1) for a temporary restraining order without providing notice to the
Defendants.
4 The bulk of my findings regarding the COVID-19 pandemic and the State’s response are derived
from the Declaration of Dr. Nirav D. Shah, Director of Maine CDC, (ECF No. 49-4) and the Declaration
of Sara Gagné-Holmes, Deputy Commissioner of the DHHS (ECF No. 49-5). The Plaintiffs have not
submitted declarations that dispute the factual assertions made in the Shah and Gagné-Holmes
declarations.
3
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 4 of 41 PageID #: 766
To provide the necessary background, I begin by addressing: (A) COVID-19
and Maine’s response; (B) the asserted religious beliefs that cause Plaintiffs to refuse
to be vaccinated against COVID-19; and (C) the origin of the emergency rulemaking
that required that healthcare workers be vaccinated against COVID-19.
A. The COVID-19 Global Pandemic
COVID-19 is a highly contagious disease that can cause serious illness and
death. ECF No. 49-4 at ¶¶ 11, 13, 15. In March 2020, the World Health Organization
declared COVID-19 to be a global pandemic. ECF No. 49-4 at ¶ 12. As of September
12, 2021, there were approximately 219 million cases of COVID-19 worldwide. ECF
No. 49-4 at ¶ 13. Globally, over 4,550,000 people have died from COVID-19, including
approximately 660,000 deaths in the United States. ECF No. 49-4 at ¶ 13. As of
September 14, 2021, Maine had 81,177 total cases of COVID-19, with 969 deaths.
ECF No. 49-4 at ¶ 14.
Variants of the virus have emerged over the course of the pandemic. ECF No.
49-4 at ¶ 20. The Delta variant, which is now the predominant variant of all COVID-
19 cases in the United States, ECF No. 49-4 at ¶ 50, is more than twice as contagious
as previous variants, ECF No. 49-4 at ¶ 22. As of August 27, 2021, the Delta variant
accounted for 96.7% of all positive COVID-19 samples sequenced in Maine. ECF No.
49-4 at ¶ 50. A higher level of contagiousness necessitates a correspondingly higher
vaccination rate among the public to achieve “herd immunity.” 5 ECF No. 49-4 at
5 Herd immunity refers to the population-level phenomenon whereby the community is sufficiently
populated with vaccinated individuals that unvaccinated individuals can enjoy a substantially
lessened risk of exposure and, therefore, of infection, as the vaccinated individuals block the virus from
spreading from person to person. ECF No. 49-4 at ¶¶ 27-28.
4
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 5 of 41 PageID #: 767
¶ 28. With the emergence of the Delta variant, epidemiological models have
increased the projected vaccination rate needed to achieve herd immunity from 70%
to 90%. ECF No. 49-4 at ¶ 29.
Three COVID-19 vaccines are generally available: Pfizer-BioNTech (the
“Pfizer vaccine”), Moderna, and Janssen (the “J&J vaccine”). ECF No. 49-4 at ¶ 40.
All three are effective against the Delta variant. ECF No. 49-4 at ¶ 43. Prior to their
availability, the United States Centers for Disease Control and Prevention (“CDC”)
and Maine CDC recommended that people wear face coverings and practice physical
distancing to limit the spread of the virus. ECF No. 49-5 at ¶ 5. Once the first vaccine
doses became available in December 2020, Maine CDC prioritized the vaccination of
frontline healthcare professionals and patient-facing staff through its eligibility
guidelines. ECF No. 49-5 at ¶¶ 15-18. The vaccines are now widely available, and
the State has worked in parallel with hospital systems to encourage and facilitate the
widespread vaccination of Maine residents. ECF No. 49-5 at ¶¶ 19(f), 23-29.
The Rule was amended in August 2021 to add COVID-19 to the list of infectious
diseases for which vaccinations are mandated for employees of designated healthcare
facilities. It represented the latest in a series of measures employed by the State to
combat the COVID-19 pandemic in healthcare settings. When formulating the
amendment, Maine CDC reviewed and considered alternatives to mandating
vaccinations, including the measures then being employed by Maine healthcare
facilities, such as twice-weekly or daily testing, symptom monitoring, and the use of
personal protective equipment (“PPE”). ECF No. 49-4 at ¶¶ 59-64. Maine CDC
rejected twice-weekly testing as inadequate given the speed at which the Delta
5
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 6 of 41 PageID #: 768
variant is transmitted—a person infected with the Delta variant can transmit the
infection to others within just 24 to 36 hours of exposure. ECF No. 49-4 at ¶¶ 25, 61.
Similarly, Maine CDC rejected daily antigen testing as insufficient because the most
effective tests (polymerase-chain-reaction tests (“PCR”)) require 24 to 72 hours to
produce results and the faster rapid-antigen tests are too inaccurate and in short
supply. ECF No. 49-4 at ¶ 62. Symptom monitoring as a standalone measure was
rejected because the virus can be transmitted by persons who are asymptomatic. ECF
No. 49-4 at ¶ 60. Similarly, sole reliance on the use of PPE was rejected because,
even if worn correctly, PPE will not stop the spread of COVID-19 in healthcare
settings. ECF No. 49-4 at ¶ 64.
Healthcare facilities throughout Maine have used a combination of the
preceding measures to control the COVID-19 virus since the beginning of the
pandemic; nonetheless, they have been the sites of numerous outbreaks of the virus.
ECF No. 49-4 at ¶ 65. The number of outbreaks at designated healthcare facilities
rose substantially from early August to early September 2021, notwithstanding the
fact that the hospitals where the outbreaks occurred had strong infection control
programs in place. ECF No. 49-4 at ¶¶ 46-47. Most of the healthcare facility
outbreaks resulted from infected healthcare workers bringing COVID-19 into the
facility. ECF No. 49-4 at ¶ 48.
B. The Plaintiffs’ Objection to the COVID-19 Vaccines
The Plaintiffs are nine individuals who are identified in the Complaint by
pseudonyms. The Complaint alleges that Jane Does 1 through 5 and John Does 2
and 3 are healthcare workers employed by the Hospital Defendants. John Doe 1 is a
6
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 7 of 41 PageID #: 769
licensed healthcare provider who operates his own practice. Jane Doe 6 is a
healthcare worker employed by John Doe 1. 6, 7
The Plaintiffs object to receiving the COVID-19 vaccines based on their stated
belief that “life is sacred from the moment of conception[.]” ECF No. 1 at ¶ 54. They
contend that the development of the three COVID-19 vaccines employed or benefitted
from the cell lines of aborted fetuses. Specifically, the Plaintiffs object to the Moderna
and Pfizer vaccines because both are mRNA vaccines which, the Plaintiffs claim,
“have their origins in research on aborted fetal cells lines.” ECF No. 1 at ¶ 65.
6 The Complaint alleges the following facts regarding the Plaintiffs:
Plaintiff Jane Doe 1 is a Maine resident and healthcare worker employed by a healthcare
facility operated by Defendant MaineHealth in Maine. She submitted a written request for a religious
exemption from the vaccine mandate to her employer, which was denied.
Plaintiff John Doe 1 is a licensed healthcare provider who operates a designated healthcare
facility in Maine. The Complaint alleges that he and his employees have sincerely held religious
objections to receiving the COVID-19 vaccine, and that he faces the closure of his practice and loss of
his business license should he consider or grant religious exemptions to the vaccine mandate to his
employees.
Plaintiff Jane Doe 6 is a healthcare worker employed by John Doe 1. The Complaint is unclear
as to whether she has requested a religious exemption to the mandate from her employer, John Doe
1.
Plaintiffs Jane Doe 2 and John Doe 2 are both Maine residents and healthcare workers
employed by healthcare facilities operated by Defendant Genesis Healthcare in Maine. Both
submitted written requests for religious exemptions from the vaccine mandate, and Genesis
Healthcare denied them. Jane Doe 2 was given until August 23, 2021 to receive the vaccination and
alleges that she was terminated from her employment for failure to meet this deadline.
Plaintiffs Jane Does 3 and 4 and John Doe 3 are Maine residents and healthcare workers
employed by healthcare facilities operated by Defendant Northern Light Health Foundation in Maine.
Each submitted written requests for religious exemptions from the vaccine mandate, and each request
was denied.
Plaintiff Jane Doe 5 is a Maine resident and healthcare worker employed by a healthcare
facility operated by Defendant MaineGeneral Health in Maine. She submitted a written request for a
religious exemption from the vaccine mandate to her employer, which was denied.
7 The Complaint also names Plaintiffs Jack Does 1 through 1000 and Joan Does 1 through 1000 as
putative plaintiffs who have not yet been joined in the action.
7
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 8 of 41 PageID #: 770
Plaintiffs also object to the J&J vaccine, asserting that aborted fetal cell lines were
used in both its development and production. They allege that the use of fetal cell
lines to develop the vaccines runs counter to their sincerely held religious beliefs that
cause them to oppose abortion.
In their responses to the Plaintiffs’ motion seeking preliminary injunctive
relief, the Defendants have not challenged the sincerity of the Plaintiffs’ asserted
religious beliefs or that those beliefs are the reason for the Plaintiffs’ refusal to be
vaccinated. I therefore treat these facts as established for purposes of deciding the
Preliminary Injunction Motion. 8
C. The COVID-19 Vaccine Mandate
Mandatory vaccination requirements for healthcare workers in Maine were
established long before the emergence of COVID-19 in late 2019. Since 1989, Maine
has required by statute that hospitals and other healthcare facilities ensure that their
employees are vaccinated against certain communicable diseases. 1989 Me. Legis.
Serv. 641 (West). When the statute, 22 M.R.S.A. § 802 (1989), was first enacted, it
required vaccinations for measles and rubella. Its stated purpose was to report,
prevent, and control infectious diseases that pose a potential public health threat to
the people of Maine. Id. § 802(1)(D) (1989).
The ensuing years witnessed the development of new vaccines and vaccine
recommendations, resulting in frequent revisions to the statute. In response, the
8 Pursuant to the Court’s scheduling order entered on September 2, 2021 (ECF No. 35), the deadline
for the Defendants’ answers to the Complaint will be set once the Court has entered an order on the
Motion for Preliminary Injunction and the period for filing an interlocutory appeal of that order has
expired or, if an interlocutory appeal is filed, the appeal has been finally determined. As a result, the
Defendants have not yet filed answers to the Complaint.
8
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 9 of 41 PageID #: 771
statute was again amended in 2001 to delegate to DHHS the authority, by
rulemaking, to designate mandatory vaccines for healthcare workers at designated
healthcare facilities and for school children. 2001 Me. Legis. Serv. 147 (West).
Accordingly, in 2002 DHHS promulgated and first adopted the rule entitled
“Immunization Requirements for Healthcare Workers,” which is the Rule at issue
here. 10-144-264 Me. Code R. §§ 1-7 (Apr. 16, 2002). At its adoption, the Rule
required vaccinations for measles, rubella, hepatitis B, mumps, and chickenpox. Id.
at § 5(A).
From 2001 until 2019, the statute contained three exemptions from the
vaccination requirements for both Maine healthcare workers and school children: a
“medical exemption” for those who provided “a physician’s written statement that
immunization against one or more diseases may be medically inadvisable,” and both
“religious [and] philosophical exemption[s]” for those “who state[d] in writing a
sincere religious or philosophical belief that is contrary to the immunization
requirement.” 22 M.R.S.A. § 802(4-B)(A), (B) (2019). In 2019, the Maine Legislature
enacted legislation repealing the exemptions for religious and philosophical beliefs,
2019 Me. Legis. Serv. 386 (West), thus leaving the medical exemption as the sole
exemption permitted under law. In response to this legislative change, a statewide
veto referendum regarding the new law eliminating the religious and philosophical
exemptions was held in March 2020 pursuant to the People’s Veto provision of the
Maine Constitution, Me. Const. art. IV, pt. III, § 17. The law was upheld, with over
9
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 10 of 41 PageID #: 772
72% of voters voting in favor of it. 9 In April 2021, DHHS amended the Rule by, among
other things, removing the provision describing the permissible exemptions and
referring back to the statute which lists medical exemptions as the sole category of
exemption. See 10-144-264 Me. Code R. § 3 (effective Apr. 14, 2021); 22 M.R.S.A. §
802(4-B)(B). 10 In August 2021, DHHS promulgated the current version of the Rule
by adding the COVID-19 vaccination to the list of required vaccinations and also
adding dental practices and emergency services organizations as enumerated
designated healthcare facilities subject to the Rule’s requirements. 10-144 C.M.R.
Me. Code R. § 1 (effective Aug. 12, 2021). The Plaintiffs do not challenge the
lawfulness of the rulemaking process by which the current version of the Rule was
adopted.
The preceding history demonstrates that although Plaintiffs’ arguments are
directed at the amendment of the Rule in August 2021 and the Rule’s failure to
include a religious exemption from the COVID-19 vaccination requirement, it was the
Legislature’s revision of the statute in 2019 which eliminated the religious exemption
for all mandatory vaccines. Therefore, when I refer in this decision to the COVID-19
vaccine mandate, I am referring to the Rule as it operates in conjunction with the
statute, 22 M.R.S.A. § 802(4-B), which authorizes it.
9 Full results are available on the Maine Secretary of State website. Dep’t of Sec’y of State, State of
Maine, Tabulations for Elections Held in 2020,
https://www.maine.gov/sos/cec/elec/results/results20.html#ref20 (last visited Oct. 10, 2021) (to
calculate the percentage, select “March 3, 2020 Special Referendum Election” to access the spreadsheet
of results. Then divide the number of “no” votes (281,750) by the total number of votes cast (388,393).
10 There is an additional exemption provided specifically for the Hepatis B vaccine, as mandated
under Federal Law, 22 M.R.S.A. § 802(4-B)(C), which is distinct and not relevant to the inquiry at
hand.
10
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 11 of 41 PageID #: 773
Having provided the necessary background, I turn to the legal standard which
would govern the award of a preliminary injunction.
III. PRELIMINARY INJUNCTION LEGAL STANDARD
“A preliminary injunction is an ‘extraordinary and drastic remedy . . . that is
never awarded as of right.’” Voice of the Arab World, Inc. v. MDTV Med. News Now,
Inc., 645 F.3d 26, 32 (1st Cir. 2011) (quoting Munaf v. Geren, 553 U.S. 674, 689-90
(2008)).
A trial court must consider four factors when assessing a request for a
preliminary injunction: (1) likelihood of success on the merits, (2) whether, absent
preliminary relief, the plaintiff will suffer irreparable harm, (3) whether “the balance
of equities tips in [the plaintiff’s] favor,” and (4) whether granting the injunction
serves the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). Of
these factors, “[t]he movant’s likelihood of success on the merits weighs most heavily
in the preliminary injunction calculus.” Ryan v. U.S. Immigr. & Customs Enf’t, 974
F.3d 9, 18 (1st Cir. 2020). This first factor is so consequential that “[i]f the moving
party cannot demonstrate that he is likely to succeed in his quest, the remaining
factors become matters of idle curiosity.” Me. Educ. Ass’n Benefits Tr. v. Cioppa, 695
F.3d 145, 152 (1st Cir. 2012) (quoting New Comm Wireless Servs., Inc. v. SprintCom,
Inc., 287 F.3d 1, 9 (1st Cir. 2002)).
At this preliminary stage, the court “need not conclusively determine the
merits of the movant’s claim; it is enough for the court simply to evaluate the
likelihood . . . that the movant ultimately will prevail on the merits.” Ryan, 974 F.3d
at 18.
11
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 12 of 41 PageID #: 774
IV. LEGAL ANALYSIS
The Plaintiffs’ Complaint presents five claims arising under: (A) the Free
Exercise Clause of the First Amendment; (B) Title VII, 42 U.S.C.A. § 2000e to e-17
(West 2021); (C) the Equal Protection Clause of the Fourteenth Amendment; (D) a
claim of Conspiracy in violation of 42 U.S.C.A. § 1985 (West 2021); and (E) the
Supremacy Clause. As will become apparent, the likelihood of the Plaintiffs’ success
on their Free Exercise claim largely controls the outcome as to the remaining claims
for purposes of determining the Plaintiffs’ entitlement to preliminary injunctive
relief.
A. The Free Exercise of Religion
The Free Exercise Clause of the First Amendment, which applies to the states
through the Fourteenth Amendment, provides that “Congress shall make no law
prohibiting the free exercise” of religion. U.S. Const. amend. I, see Cantwell v.
Connecticut, 310 U.S. 296, 303-04 (1940) (incorporating the Free Exercise Clause of
the First Amendment against the states). The clause “embraces two concepts[:]
freedom to believe and freedom to act.” Cantwell, 310 U.S. at 303. Although the
freedom to believe is absolute, the freedom to act on one’s religious beliefs “remains
subject to regulation for the protection of society.” Id. at 304.
The Constitution’s Free Exercise Clause does not prevent states from enacting
a “neutral, generally applicable regulatory law,” even when that law infringes on
religious practices. See Emp. Div., Dep’t of Hum. Res. of Or. V. Smith, 494 U.S. 872,
879-882 (1990). Laws that are deemed both neutral and generally applicable are
traditionally subject to rational basis review. Thus, in Smith, the U.S. Supreme
12
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 13 of 41 PageID #: 775
Court explained: “We have never held that an individual’s religious beliefs excuse
him from compliance with an otherwise valid law prohibiting conduct that the State
is free to regulate. On the contrary, the record of more than a century of our free
exercise jurisprudence contradicts that proposition.” Id. at 878-79. Further, “if
prohibiting the exercise of religion . . . is not the object of the [state action] but
merely the incidental effect of a generally applicable and otherwise valid provision,
the First Amendment has not been offended.” 11 Id. at 878. However, if a law
burdens a religious practice and does not satisfy the requirements of neutrality and
general applicability, the law is invalid under the Free Exercise Clause unless it
survives strict scrutiny, meaning it is “justified by a compelling governmental
interest and . . . narrowly tailored to advance that interest.” Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32 (1993).
The parties’ dispute under the Free Exercise Clause centers on the standard of
constitutional review that applies: rational basis review or strict scrutiny review. The
Plaintiffs argue that the COVID-19 vaccine mandate’s failure to provide a religious
exemption means that the regulation is not neutral and generally applicable and,
11 Writing for the Court’s majority in Smith, Justice Scalia reasoned that the question of whether a
religious exemption or accommodation should be adopted as part of a neutral, generally applicable
regulatory law is not within the purview of the courts’ role in enforcing the Free Exercise Clause but
is instead for the other branches of government to determine:
But to say that a nondiscriminatory religious-practice exemption is permitted [by the
Free Exercise Clause], or even that it is desirable, is not to say that it is constitutionally
required, and that the appropriate occasions for its creation can be discerned by the
courts. It may fairly be said that leaving accommodation to the political process will
place at a relative disadvantage those religious practices that are not widely engaged
in; but that unavoidable consequence of democratic government must be preferred to
a system in which each conscience is a law unto itself or in which judges weigh the
social importance of all laws against the centrality of all religious beliefs.
13
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 14 of 41 PageID #: 776
therefore, must be analyzed under the more demanding strict scrutiny standard. The
Defendants disagree, contending that the mandate is neutral and generally
applicable notwithstanding the lack of religious exemption, and that the more
deferential rational basis standard of review applies.
Under rational basis review, “a neutral, generally applicable regulatory law
that compel[s] activity forbidden by an individual’s religion” withstands a Free
Exercise challenge if there is a rational basis for the regulation. Smith, 494 U.S. at
880. Applying rational basis review to the COVID-19 vaccine mandate at issue here
would be in keeping with the Supreme Court’s foundational decision in the area of
mandatory vaccines—Jacobson v. Massachusetts, 197 U.S. 11 (1905)—in which the
Court upheld the constitutionality of a state mandated smallpox vaccine. In so doing,
the Court applied a deferential standard of review and rejected a Fourteenth
Amendment substantive due process challenge to the law, concluding that the
mandatory vaccination law was constitutional because it had a “real [and] substantial
relation to the protection of the public health and the public safety.” 12 Id. at 31.
12 The Plaintiffs argue that because Jacobson pre-dates both the application of the Free Exercise
Clause to the states and the Court’s adoption of the tiers of scrutiny for constitutional questions, it is
inapposite. The Defendants do not solely rest their argument on Jacobson but they do argue that it
supports the more general proposition that a state may mandate vaccinations and need not include
religious exemptions when doing so.
In the years since the Supreme Court recognized that the First Amendment’s Free Exercise Clause
applies to the states, Jacobson has been treated as informative authority both regarding the scope of
government power to enact mandatory vaccination requirements to protect public health and for the
proposition that the Constitution does not require religious exemptions from state-mandated
vaccinations. See, e.g., Zucht v. King, 260 U.S. 174, 176 (1922) (affirming that Jacobson “settled that
it is within the police power of a state to provide for compulsory vaccination”); Prince v. Massachusetts,
321 U.S. 158, 166-67 (1944) (“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.”); Phillips v. City
of New York, 775 F.3d 538, 543 (2d Cir. 2015) (“[M]andatory vaccination as a condition for admission
to school does not violate the Free Exercise Clause”); Nikolao v. Lyon, 875 F.3d 310, 316 (6th Cir. 2017)
(“[Plaintiff] has not been denied any legal right on the basis of her religion. Constitutionally, [plaintiff]
14
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 15 of 41 PageID #: 777
However, Jacobson did not specifically address the scope of an individual’s
constitutional rights under the First Amendment’s Free Exercise Clause in relation
to mandatory vaccines, and that inquiry is the crux of the dispute here.
Under strict scrutiny review, a challenged government action may be upheld
only if “it is justified by a compelling interest and is narrowly tailored to advance that
interest.” Lukumi, 508 U.S. at 533. “[N]arrow tailoring requires the government to
show that measures less restrictive of the First Amendment activity could not
address its interest in reducing the spread of COVID.” Tandon v. Newsom, 141 S. Ct.
1294, 1296-97 (2021) (per curiam). The government must also demonstrate that it
“seriously undertook to address the problem with less intrusive tools readily available
to it” and “that it considered different methods that other jurisdictions have found
effective.” McCullen v. Coakley, 573 U.S. 464, 494 (2014).
has no right to a [vaccine] exemption.”); Workman v. Mingo Cnty. Bd. Of Educ., 419 Fed. App’x 348,
352-54 (4th Cir. 2011) (relying on the Jacobson, Zucht, and Prince line of cases to hold that a state
mandatory vaccination law that allowed medical but not religious exemptions was constitutional);
Whitlow v. California, 203 F. Supp. 3d 1079, 1084, 1086 (S.D. Cal. 2016) (“[I]t is clear that the
Constitution does not require the provision of a religious exemption to vaccination requirements”
because, “[a]s stated in Prince, the right to free exercise does not outweigh the State’s interest in public
health and safety.”); Klaassen v. Trs. Of Ind. Univ., No. 1:21-CV-238, 2021 WL 3073926, at *17-22, *39
(N.D. Ind. July 18, 2021) (providing a detailed analysis of Jacobson’s continued viability and noting
that “courts have consistently held that schools that provided a religious exemption from mandatory
vaccination requirements did so above and beyond that mandated by the Constitution”), aff’d, 7 F.4th
592 (7th Cir. 2021) (relying on Jacobson to hold that “there can’t be a constitutional problem with
vaccination against SARS-CoV-2” because, although Jacobson has been criticized, “a court of appeals
must apply the law established by the Supreme Court”); Boone v. Boozman, 217 F. Supp. 2d 938, 954
(E.D. Ark. 2002) (“The constitutionally-protected free exercise of religion does not excuse an individual
from compulsory immunization; in this instance, the right to free exercise of religion . . . [is]
subordinated to society’s interest in protecting against the spread of disease.”); Harris v. Univ. of
Mass., Lowell, No. 21-cv-11244, 2021 WL 3848012, at *7 (D. Mass. Aug. 27, 2021) (following the
Jacobson line to hold that “UMass is under no constitutional obligation to offer a religious exemption
to its Vaccine Requirement.”).
15
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 16 of 41 PageID #: 778
To determine whether rational basis or strict scrutiny review applies, I turn to
consider whether the COVID-19 vaccine mandate is both (1) neutral, and (2)
generally applicable.
1. Neutrality
Neutrality examines whether the State’s object, or purpose, was to “infringe
upon or restrict practices because of their religious motivation.” Lukumi, 508 U.S.
at 533. A law is not neutral if its object “is to infringe upon or restrict practices
because of their religious motivation.” Id. The first step in determining the object of
a law is to examine whether it is facially neutral. Id. (“[T]he minimum requirement
of neutrality is that a law not discriminate on its face.”).
By this standard, the COVID-19 vaccine mandate challenged here is facially
neutral. Neither the applicable statute nor the Rule mention religion, even by
implication. Operating in tandem, they require that all healthcare workers employed
at designated healthcare facilities receive the COVID-19 vaccination. They do not
treat the COVID-19 vaccine differently than any other vaccinations mandated under
Maine law.
The vaccine mandate’s facial neutrality is not dispositive, though, because the
“[g]overnment [also] fails to act neutrally when it proceeds in a manner intolerant of
religious beliefs or restricts practices because of their religious nature.” Fulton v.
City of Philadelphia, 141 S. Ct. 1868, 1877 (2021). Thus, even a facially neutral law
may not be neutral for Free Exercise purposes if its object is to discriminate against
religious beliefs, practices, or motivations. Lukumi, 508 U.S. at 534 (“The Free
16
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 17 of 41 PageID #: 779
Exercise Clause protects against governmental hostility, which is masked, as well as
overt.”).
The Plaintiffs contend that the COVID-19 vaccine mandate is not neutral
because the removal of the religious exemption from the Rule “specifically target[ed]
Plaintiffs’ religious beliefs for disparate and discriminatory treatment.” ECF No. 1
¶ 131. They assert that “Maine has plainly singled out religious employees who
decline vaccination for especially harsh treatment (i.e., depriving them from earning
a living anywhere in the State), while favoring employees declining vaccination for
secular, medical reasons.” ECF No. 57 at 4. This argument mirrors claims made
recently by healthcare providers challenging New York’s COVID-19 vaccine mandate,
which also did not provide for religious exemptions. Dr. A. v. Hochul, No. 1:21-cv-
1009, at **4-6 (N.D.N.Y. Oct. 12, 2021). However, the challenged New York
regulation is distinguishable from Maine’s COVID-19 vaccine mandate, because the
New York regulation originally provided for a religious exemption which was then
removed only a few days before the requirement became effective; additionally, New
York provides religious exemptions to other mandated vaccinations for healthcare
workers. Id. at *4, *5, *16 n.9. For these reasons, the court determined that the
intentional, last-minute change to the language in the New York regulation was a
“religious gerrymander” that required strict scrutiny. Id. at *19. In contrast, the
Maine Legislature removed the religious exemption as to all mandated vaccines by
amending 22 M.R.S.A. § 802(4-B) in 2019. Following the unsuccessful People’s Veto
held in 2020, DHHS removed the religious exemption from the Rule in April 2021 to
conform the Rule to the 2019 statutory change. This revision pre-dated the COVID-
17
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 18 of 41 PageID #: 780
19 vaccine requirement and served to ensure that the Rule was consistent with Maine
law. The history associated with the revision of the Rule does not demonstrate
animus toward religion.
In support of their argument, the Plaintiffs cite to a trio of recent per curiam
or memorandum decisions issued by the U.S. Supreme Court: Roman Catholic
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 62 (2020) (per curiam); South Bay Pentecostal
Church v. Newsom, 141 S. Ct. 716 (2021) (mem.); and Tandon v. Newsom, 141 S. Ct.
1294 (2021) (per curiam). Each involved a challenge to a state law aimed at quelling
the spread of COVID-19. Each was issued in response to a motion for emergency
injunctive relief to preserve the status quo pending resolution of appellate review. Of
the three, the Plaintiffs rest primarily on Tandon v. Newsom.
In Tandon, the Supreme Court granted injunctive relief against enforcement
of a California regulation that prohibited indoor private gatherings of more than
three households during the COVID-19 pandemic. 141 S. Ct. at 1297. The
prohibition had the effect of restricting at-home religious gatherings while allowing
groups of more than three households to gather in public settings, such as hair salons,
retail stores, and restaurants. Id. In enjoining the regulation’s enforcement, the
Court explained 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.” Id. at 1296. “[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.” Id. “Comparability is concerned with the risks
18
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 19 of 41 PageID #: 781
various activities pose, not the reasons” motivating the activities. Id. The Court’s
majority concluded that private indoor gatherings of three or more households were
comparable to groups of the same or a greater number of households in public
businesses, which were not prohibited by the regulation, and granted an injunction
against the policy’s enforcement pending appellate review. Id. at 1297.
Citing Tandon, the Plaintiffs argue that the Free Exercise Clause prohibits the
treatment of “any secular activity more favorably than religious activity.” ECF No.
57 at 3 (emphasis in original). This misstates Tandon’s holding because it omits the
crucial modifier—“comparable”—from the analysis of whether a secular activity has
been treated more favorably than a religious activity.
In the unique context of a vaccine mandate intended to protect public health,
there is a fundamental difference between a medical exemption—which is integral to
achieving the public health aims of the mandate—and exemptions based on religious
or philosophical objections—which are unrelated to the mandate’s public health
goals. The risks associated with the two are not comparable. 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. A religious exemption
would not address a risk associated with the vaccine mandate’s central objectives.
Under Tandon’s reasoning, rational basis review applies.
Tandon is distinguishable from this case in another respect. The vaccination
requirement challenged here does not prevent the Plaintiffs from exercising their
religious beliefs by refusing to receive the COVID-19 vaccination. In contrast, in
Tandon interference with the free exercise of religion was direct because the statute
19
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 20 of 41 PageID #: 782
prevented like-minded persons from gathering together to perform religious rituals.
Here, the Rule does not compel the Plaintiffs to be vaccinated against their will, and
the Plaintiffs have, in fact, freely exercised their religious beliefs by declining to be
vaccinated. This is not to minimize the seriousness of the indirect consequences of
the Plaintiffs’ refusal to be vaccinated, as it affects their employment. Nonetheless,
the Rule has not prevented the Plaintiffs from staying true to their professed religious
beliefs.
The two remaining decisions in the trio relied upon by the Plaintiffs are also
readily distinguished. In South Bay United Pentecostal Church v. Newsom, 13 the
Court partially granted an application for injunctive relief from California Governor
Gavin Newsom’s executive order limiting attendance at indoor religious gatherings
to prevent further spread of COVID-19. 141 S. Ct. at 716, 718. Writing separately,
Justice Gorsuch concluded that the restrictions on religious institutions imposed by
California followed a pattern of that state “openly impos[ing] more stringent
regulations on religious institutions than on many businesses” throughout the
pandemic, and that this represented religious discrimination and required strict
scrutiny. Id. at 717 (statement of Gorsuch, J.). The restrictions considered in South
Bay are unlike the vaccine mandate at issue here. Id. In South Bay, California had
explicitly imposed stricter attendance limits on in-person worship services, while not
13 The California Order challenged in South Bay came before the Court twice on application for
injunctive relief: in May 2020, the Court issued a memorandum opinion denying the application, 140
S. Ct. 1613, 1613 (2020) (Mem.); in February 2021 the Court denied relief with respect to the
percentage capacity limitations imposed on houses of worship and limitations on singing and chanting
during indoor services, and granted the injunction with respect to the other capacity limits, 141 S. Ct.
716, 716 (2021) (Mem.).
20
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 21 of 41 PageID #: 783
imposing similar limits in secular settings. There is no similar targeted imposition
of restrictions on religious practices presented by the COVID-19 vaccine mandate.
Finally, in Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court
granted injunctive relief from a State of New York order that imposed severe
restrictions on religious gatherings in certain high-risk zones of New York City
during the first wave of the Covid-19 pandemic. 141 S. Ct. at 66. Specifically, the
order limited attendance at religious gatherings in “red” zones to no more than ten
persons and in “orange” zones to no more than 25 persons, while allowing myriad
essential businesses in those same locations to admit an unlimited number of
persons. Id. at 66-67. Invoking Smith, the Court determined that the challenged
order was neither neutral nor generally applicable due to these categorizations. Id.
at 67. Applying strict scrutiny, the Court held that although “[s]temming the spread
of COVID-19 is unquestionably a compelling interest,” the regulation was likely
unconstitutional for lack of narrow tailoring. Id. There were multiple less restrictive
rules that could have achieved the State’s goal without burdening the exercise of
religion so severely, such as tying the maximum attendance at a house of worship to
the size of that facility. Id. The Court was not persuaded that the State demonstrated
that houses of worship, which had “admirable safety records,” “contributed to the
spread of COVID-19” such that the targeted and restrictive prohibition could be
constitutionally sound. Id. at 67-68.
Roman Catholic Diocese of Brooklyn is distinguishable from the COVID-19
vaccine mandate at issue here because the mandate does not impose restrictions on
religious practices while allowing similar secular conduct to continue unfettered.
21
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 22 of 41 PageID #: 784
Additionally, the vaccine mandate does not compel the Plaintiffs to be vaccinated for
COVID-19 involuntarily and, therefore, the Plaintiffs have not been directly
prevented from adhering to their religious beliefs as was the case in Roman Catholic
Diocese of Brooklyn. Finally, as I will soon address, the State Defendants have
demonstrated that other less-restrictive measures would be insufficient alternatives
to the vaccine mandate.
Therefore, the COVID-19 vaccine mandate is facially neutral, and the trio of
recent Supreme Court per curiam and memorandum COVID-19 decisions does not
dictate otherwise. Additionally, in probing for covert animus, what matters is the
State’s motive in removing the vaccine exceptions for religion and philosophy from
the statute in 2019 because it was then—not in 2021 as Plaintiffs assert—that the
change took effect. The Plaintiffs have not offered any reasoned explanation as to
why Maine’s COVID-19 vaccine mandate for healthcare workers should be viewed as
targeting religious beliefs while vaccines for other communicable diseases that may
have involved fetal cell lines in their development or production should not. 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.
Specifically, the Legislature considered data establishing that it was the
religious and philosophical exemptions to mandatory vaccines that had prevented
Maine from achieving herd immunity as to several infectious diseases, which is a
22
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 23 of 41 PageID #: 785
prerequisite to eliminating those diseases. 14 Measles, for example, requires a 95%
population-level vaccination rate, ECF No. 49-4 ¶ 35, and this was undermined in the
years prior to 2019 by the large percentage of unvaccinated persons resulting from
the religious and philosophical exemptions, ECF No. 48-3 at 3-6. As Representative
McDonald, cosponsor of the legislation, testified:
Maine has the seventh-highest non-medical exemption rate in the
nation. . . . The average philosophical and religious exemption rate for
kindergarten-aged students in Hancock County, ME was 8.7
percent. . . . There are schools [in Hancock County] experiencing non-
medical exemption rates as high as 33.3 percent.
ECF No. 48-3 at 1.
Then-Acting Director of Maine CDC, Nancy Beardsley, testified that “non-
medical exemptions, which include religious and philosophical reasons, were reported
at 5.0% for Maine, compared to the national rate of 2.0%.” ECF No. 48-4 at 1. Medical
exemptions, in contrast, accounted for 0.3% of the overall exemption rate. ECF No.
48-4 at 1. Beardsley also testified that the high exemption rates in Maine had caused
pertussis outbreaks:
Hancock and Waldo counties also represent two of the four counties with
the highest reported rates of pertussis cases in 2018 . . . . Not only did
high exemption rates likely contribute to high rates of pertussis disease
in these two counties, but also in the entire State, as Maine reported the
highest rate of pertussis disease in the country for 2018.
ECF No. 48-4 at 2.
14 The statistics referenced in the legislative record, and cited here, pertain to vaccination rates for
school children; however, they are relevant to the State’s motivations for healthcare workers because
the statute at issue removed religious and philosophical exemptions for both of these groups and there
is no colorable argument (nor have the Plaintiffs advanced one) that the State had a different
motivation for removing the exemptions for healthcare workers than for school children.
23
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 24 of 41 PageID #: 786
The Plaintiffs have not specifically disputed that the reasons put forward by
the State Defendants for the Legislature’s removal of the religious and philosophical
exemptions in 2019 were, in fact, the actual reasons. Accordingly, there is no factual
support for the proposition that the August 2021 amendment of the Rule, adding the
COVID-19 vaccine to the list of mandatory vaccinations for Maine’s healthcare
workers, “specifically target[ed] Plaintiffs’ religious beliefs for disparate and
discriminatory treatment,” as the Plaintiffs argue. ECF No. 1 ¶ 131. Moreover, there
is no basis to find that the August 2021 amendment of the Rule, including the removal
of the religious and philosophical exemptions so that the Rule would conform to the
2019 amendment to the statute, was intended to discriminate against religious
beliefs, practices, or motivations. See Lukumi, 508 U.S. at 534. For these reasons,
the COVID-19 vaccine mandate is neutral because it is facially neutral and it was not
intended to discriminate against individuals’ religious beliefs, practices, or
motivations.
2. General Applicability
General applicability addresses whether the State has selectively “impos[ed]
burdens only on conduct motivated by religious belief.” Id. at 543. The Plaintiffs
reason that the COVID-19 vaccine mandate is not generally applicable and that it
must be subjected to strict scrutiny review because the mandate favors healthcare
workers who refuse to be vaccinated for medical reasons over healthcare workers who
refuse to be vaccinated for religious reasons. They contend that the State’s adoption
of medical exemptions as the sole type of exemption reflects a value judgment by the
State, one which prioritizes secular interests over religious interests. Thus, they
24
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 25 of 41 PageID #: 787
contend that the vaccine mandate fails the test of general applicability because it
burdens religious beliefs while not similarly burdening secular interests.
Individualized exemptions undermine a regulation’s general applicability if
they display an unconstitutional value judgment that gives preference to secular
concerns over religious concerns. In Fulton, the Supreme Court explained that “[a]
law is not generally applicable if it invites the government to consider the particular
reasons for a person’s conduct by providing a mechanism for individualized
exemptions.” Fulton, 141 S. Ct. at 1877; see also Cent. Rabbinical Cong. Of U.S. &
Can. V. N.Y.C. Dep’t. of Health & Mental Hygiene, 763 F.3d 183, 197 (2d Cir. 2014)
(citing Lukumi, 508 U.S. at 535-38). (“A law is . . . not generally applicable if it is
substantially underinclusive such that it regulates religious conduct while failing to
regulate secular conduct that is at least as harmful to the legitimate government
interests purportedly justifying it.)” “[W]hen the government makes a value
judgment in favor of secular motivations, but not religious motivations, the
government’s actions must survive heightened scrutiny.” Fraternal Ord. of Police,
Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366 (3d Cir. 1999).
The Plaintiffs contend that the medical exemption at issue here should be
treated as an individualized exception which is “sufficiently suggestive of
discriminatory intent so as to trigger heightened [strict] scrutiny.” Id. They point to
various judicial decisions applying strict scrutiny and invalidating regulations that
permitted medical exemptions but not religious exemptions. However, the decisions
cited by the Plaintiffs all relate to government regulations that were primarily
intended to achieve governmental objectives other than protecting public health.
25
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 26 of 41 PageID #: 788
Thus, in Fraternal Order of Police, id, the court applied strict scrutiny and
invalidated a regulation that prohibited beards for male police officers that was
adopted for the stated purpose of promoting uniformity of the officers’ appearance,
and which granted a medical exemption from the requirement while not exempting
officers who maintained beards as a matter of religious faith. The other decisions
cited by the Plaintiffs addressed similar circumstances. See Litzman v. New York
City Police Department, No. 12 Civ. 4681, 2013 WL 6049066, at *2-3 (S.D.N.Y. Nov.
15, 2013) (requiring religious exemptions to a policy mandating once-yearly facial
shaving for male police officers to ensure compliance with respirator fit-testing
requirements); Singh v. McHugh, 185 F. Supp. 3d 201, 211-13 (D.D.C. 2015)
(determining that religious accommodation was required under a policy that would
not permit a Sikh student seeking to enroll in the Army’s Reserve Officers’ Training
Corps program to wear a turban, unshorn hair, and beard due to a grooming policy
to promote uniformity); and Cunningham v. City of Shreveport, 407 F. Supp. 3d 595,
599 (W.D. La. 2019) (determining a policy requiring beards for male officers “for
officer safety reasons and to promote a uniform appearance of all officers” required
religious accommodations).
Here, the purpose of requiring COVID-19 vaccinations for healthcare workers
is to protect public health and not any other policy objective, such as promoting the
uniformity of the appearance of police officers or firefighters. Exempting 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. It
does not suggest a discriminatory bias against religion. See W.D. v. Rockland County,
26
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 27 of 41 PageID #: 789
521 F. Supp. 3d 358, 403 (S.D.N.Y. 2021) (concluding that New York’s emergency
declaration mandating vaccinations against measles, which provided a medical
exemption but not a religious exemption, met the requirement of general applicability
by “encouraging vaccination of all those for whom it was medically possible, while
protecting those who could not be inoculated for medical reasons.”).
The medical exemption at issue here was adopted to protect persons whose
health may be jeopardized by receiving a COVID-19 vaccination. The 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. Because the medical exemption serves the core
purpose of the COVID-19 vaccine mandate, it does not reflect a value judgment
prioritizing a purely secular interest—such as the uniformity of appearance of
uniformed officers considered in Fraternal Order of Police—over religious interests.
In addition, the vaccine mandate places an equal burden on all secular beliefs
unrelated to protecting public health—for example, philosophical or politically-based
objections to state-mandated vaccination requirements—to the same extent that it
burdens religious beliefs.
The medical exemption applicable to the COVID-19 vaccine and the other
vaccines required under Maine law does not reflect a value judgment unfairly
favoring secular interests over religious interests. As an integral part of the vaccine
requirement itself, the medical exemption for healthcare workers does not undermine
the vaccine mandate’s general applicability.
27
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 28 of 41 PageID #: 790
3. Conclusion Regarding the Standard of Constitutional Review
For the reasons I have explained, the COVID-19 vaccine mandate is both
neutral and generally applicable; therefore, rational basis review applies. The trio of
recent Supreme Court per curiam and memorandum decisions relied on by the
Plaintiffs do not suggest otherwise. I therefore turn to consider whether the mandate
satisfies rational basis review.
4. Rational Basis Review
The Plaintiffs do not seriously question the existence of a rational basis for the
adoption of the COVID-19 vaccine mandate. I address this question nonetheless
because it is the key to deciding the requirement’s constitutionality under the Free
Exercise Clause. “A law survives rational basis review so long as the law is rationally
related to a legitimate governmental interest.” Cook v. Gates, 528 F.3d 42, 55 (1st
Cir. 2008).
Stopping the spread of COVID-19 in Maine, and specifically stemming
outbreaks in designated healthcare facilities to protect patients and healthcare
workers, is a legitimate government interest. For several reasons, the mandate is
rationally related to this interest.
First, data collected by Maine CDC throughout the COVID-19 pandemic
demonstrates that unvaccinated individuals are substantially more likely both to
contract COVID-19 and to suffer serious medical consequences as a result. ECF No.
49-4 ¶¶ 16, 23, 52. Second, the percentage of COVID-19 outbreaks occurring in
healthcare facilities is increasing rapidly and most of these outbreaks are caused by
healthcare workers bringing the virus into the facilities. ECF No. 49-4 ¶¶ 46-48.
28
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 29 of 41 PageID #: 791
Third, despite widespread availability of COVID-19 vaccinations, the rate of
COVID-19 vaccinations for healthcare workers in designated healthcare facilities
remains below the 90% threshold needed to stem facility-based outbreaks. ECF No.
49-4 ¶¶ 53-54. Mandating COVID-19 vaccinations for healthcare workers at
designated healthcare facilities will increase the vaccination rate for a critically
important segment of Maine’s workforce while lowering the risk of facility-based
outbreaks.
The State defendants have provided ample support demonstrating a rational
basis for their adoption of the COVID-19 vaccine mandate as a requirement that
furthers the government’s interest in protecting public health, healthcare workers,
vulnerable patients, and Maine’s healthcare system from the spread of COVID-19.
5. Strict Scrutiny Review
Although I conclude that rational basis, and not strict scrutiny, is the correct
level of constitutional review, even if strict scrutiny were the required standard, the
COVID-19 vaccine mandate for healthcare workers still withstands the Plaintiffs’
Free Exercise challenge. As previously discussed, a challenged government action
subject to strict scrutiny may be upheld only if “it is justified by a compelling interest
and is narrowly tailored to advance that interest.” Lukumi, 508 U.S. at 533. The
government must also demonstrate that it “seriously undertook to address the
problem with less intrusive tools readily available to it” and “that it considered
different methods that other jurisdictions have found effective.” McCullen v. Coakley,
573 U.S. 464, 494 (2014).
29
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 30 of 41 PageID #: 792
a. Compelling Interest
Curbing the spread of COVID-19 is “unquestionably a compelling interest.”
Roman Catholic Diocese of Brooklyn, 141 S. Ct. at 67. Plaintiffs here admit as much,
conceding that “[t]o be sure, efforts to contain the spread of a deadly disease are
‘compelling interests of the highest order.’” ECF No. 57 at 8 (quoting On Fire
Christian Ctr., Inc. v. Fischer, 453 F. Supp. 3d 901, 910 (W.D. Ky. 2020)).
b. Narrow Tailoring
The record establishes that “[t]he gold standard to prevent and stop the spread
of communicable diseases, including COVID-19, is vaccination.” ECF No. 49-4 at
¶ 34. High vaccination rates minimize the number of unvaccinated individuals in
group settings—such as healthcare environments—which ultimately facilitates
population-level immunity and prevents outbreaks of these diseases both within
these settings and in the general population. ECF No. 49-4 at ¶¶ 35-37. Achieving
the high levels of vaccination needed to establish population-level immunity is crucial
to protect the health of the most vulnerable individuals, including “individuals with
weakened immune systems, infants too young to be vaccinated, and persons unable
to be vaccinated.” ECF No. 49-4 at ¶¶ 38-39. For “individuals undergoing treatment
for serious diseases, and individuals who have a demonstrated allergy to one of the
vaccine components,” certain vaccinations are inadvisable for medical reasons. ECF
No. 49-4 at ¶ 39. For these people, receiving a particular vaccine could have adverse
health consequences. ECF No. 49-4 at ¶ 39.
The Plaintiffs’ sole challenge to the scientific rationale put forward by the State
Defendants for the vaccine mandate is based on the Plaintiffs’ citation to an article
30
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 31 of 41 PageID #: 793
published in National Geographic Magazine that reports on a preliminary study that
found that vaccinated persons with breakthrough COVID-19 infections can transmit
the virus. This preliminary finding, however, does not address the broader question
of whether COVID-19 vaccinations reduce the risk of people spreading the virus that
causes COVID-19. According to the CDC, they do. CDC, Key Things to Know About
COVID-19 Vaccines, (Oct. 7, 2021), https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/keythingstoknow.html (“COVID-19 vaccines can reduce the risk of
people spreading the virus that causes COVID-19.”). Nor does the National
Geographic article address the related question of whether vaccinated persons
become infected at a lesser rate than unvaccinated persons and whether vaccinations
provide substantial protection against COVID-19 hospitalizations. On these points
as well, the CDC indicates that they do. Id. (“People can sometimes get COVID-19
after being fully vaccinated. However, this only happens in a small proportion of
people, even with the Delta variant. When these infections occur among vaccinated
people, they tend to be mild.”); see also Ashley Fowlkes et al., Effectiveness of COVID-
19 Vaccines in Preventing SARS-CoV-2 Infection Among Frontline Workers Before
and During B.1.617.2 (Delta) Variant Predominance—Eight U.S. Locations,
December 2020–August 2021, CDC (Aug. 27, 2021),
https://www.cdc.gov/mmwr/volumes/70/wr/mm7034e4.htm?s_cid=mm7034e4_w;
Wesley H. Self, et al., Comparative Effectiveness of Moderna, Pfizer-BioNTech, and
Janssen (Johnson & Johnson) Vaccines in Preventing COVID-19 Hospitalizations
Among Adults Without Immunocompromising Conditions—United States, March–
August 2021, CDC (Sept. 24, 2021),
31
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 32 of 41 PageID #: 794
https://www.cdc.gov/mmwr/volumes/70/wr/mm7038e1.htm?s_cid=mm7038e1_w.
The study cited by the Plaintiffs does not establish a lack of narrow tailoring for
purposes of strict scrutiny analysis. If vaccinated individuals are less likely to become
infected, they are less likely to transmit the disease. The preliminary study cited by
the Plaintiffs does not call this crucial point into question.
Plaintiffs further contend that the COVID-19 vaccine mandate is not the least
restrictive means of achieving the State’s goal to protect public health and the
healthcare system from communicable disease. They argue that there are
alternatives to vaccination that would not restrict their religious beliefs, and that
Maine has not demonstrated that these alternatives would not achieve the objectives
of the Rule. Plaintiffs specifically point to the use of PPE and frequent testing as less
restrictive tactics that Maine could employ.
The record demonstrates that PPE and regular testing are not sufficient to
achieve Maine’s compelling interest in stopping the spread of COVID-19. Regular
testing, an alternative method proposed by the Plaintiffs, was considered and
ultimately rejected because “regular testing for the presence of the virus in employees
is insufficient to protect against the Delta variant.” ECF No. 49-4 at ¶ 61. The speed
of the Delta variant’s transmission outpaces test-result availability. ECF No. 49-4 at
¶¶ 61-62. With weekly or twice-weekly testing, “[a]n employee who tests negative on
a Monday morning could be exposed that afternoon, and, within 36 hours, could be
spreading the virus to others over the course of the several days until the next test.”
ECF No. 49-4 at ¶ 61. Further, “[b]ecause test results are not available for at least
24 hours, and sometimes up to 72 hours, daily PCR testing is insufficient for the same
32
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 33 of 41 PageID #: 795
reasons.” ECF No. 49-4 at ¶ 61. Daily testing, therefore, would require the use of
rapid antigen tests, which are both less accurate and in short supply. ECF No. 49-4
at ¶ 62. Accordingly, regular testing is not an alternative measure that would
effectively serve to stop the spread of COVID-19.
The use of PPE is also not an equivalent alternative measure. PPE is an
important measure to prevent the spread of transmissible diseases, including
COVID-19, but “it does not eliminate the possibility of spreading COVID-19,
especially in healthcare settings.” ECF No. 49-4 at ¶ 64. Maine healthcare facilities
have utilized PPE and other practices, including regular testing and symptom
monitoring, to reduce healthcare facility-based COVID-19 outbreaks. ECF No. 49-4
at ¶ 65. These measures have not been sufficient to prevent these outbreaks. In the
face of the Delta variant and rising percentage of healthcare facility-based outbreaks,
they are not alternative equivalent measures that would achieve the compelling
interest of curbing the spread of COVID-19.
Next, Plaintiffs argue that Maine currently stands alone in the nation by not
providing religious exemptions to vaccine mandates for healthcare workers, 15 which
necessarily demonstrates that less restrictive alternatives are available. The
Plaintiffs reason that if every other state has been able to offer religious exemptions
15 At least two other states have adopted COVID-19 vaccine mandates which do not provide religious
exemptions. In August 2021, the State of New York mandated COVID-19 vaccinations for healthcare
workers in the state and did not include a religious exemption within the mandate. Dr. A. v. Hochul,
No. 1:21-cv-1009, 2021 WL 4189533 (N.D.N.Y. Sept. 14, 2021). A preliminary injunction against the
requirement was granted on October 12, 2021, Dr. A. v. Hochul, No. 1:21-cv-1009 (N.D.N.Y. Oct. 12,
2021); as previously discussed, this case is distinguishable from Maine’s vaccine mandate. Rhode
Island has also mandated COVID-19 vaccinations for healthcare workers and did not provide for
religious exemptions to that requirement; a temporary injunction was denied on September 30, 2021.
Dr. T v. McKee, No. 1:21-cv-00387 (D.R.I. Sept. 30, 2021).
33
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 34 of 41 PageID #: 796
to COVID-19 mandates, Maine should as well. However, the Plaintiffs have not
provided any scientific or expert evidence demonstrating the efficacy of the
approaches adopted in other states. Maine may be one of the first states to conclude
that it is wise to mandate vaccinations for certain healthcare workers, but it does not
follow that other, less demanding approaches are equally effective or even
appropriate given the circumstances presented in this state. The Government
Defendants assert that unlike many other states, “the size of Maine’s healthcare
workforce is limited, 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.”
ECF No. 49-4 at ¶ 66. The Plaintiffs have not presented any expert witness
declarations, science-based reports or data, or any other information to support their
argument that there are equally effective, less restrictive alternatives to the vaccine
mandate. Based on the record before me, there is no basis to conclude that, as the
Plaintiffs’ position suggests, what may be good enough for other states is necessarily
equally good for the conditions presented in Maine.
Accordingly, I conclude that the COVID-19 vaccine mandate is narrowly
tailored to serve the compelling interest of containing the spread of this serious
communicable disease. Even if strict scrutiny were required, the Plaintiffs have not
shown that they are likely to succeed on the merits of their Free Exercise claim
against the Defendants.
34
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 35 of 41 PageID #: 797
B. Title VII
Seven plaintiffs 16 assert that the Hospital Defendants refused to consider or
grant religious accommodations by failing to grant exemptions from the vaccine
mandate and that this refusal violates Title VII of the Civil Rights Act of 1964, 42
U.S.C.A. § 2000e to e-17 (West 2021).
Title VII forbids an employer “to discriminate against, any individual because
of his . . . religion.” 42 U.S.C.A. § 2000e-2(c)(1). Discrimination is effected through an
adverse employment action: “a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Title VII requires that employers
“offer a reasonable accommodation to resolve a conflict between an employee’s
sincerely held religious belief and a condition of employment, unless such an
accommodation would create an undue hardship for the employer’s business.”
Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 133 (1st Cir. 2004).
The Plaintiffs argue that the Hospital Defendants have unlawfully
discriminated against them by refusing to grant exemptions to the COVID-19 vaccine
mandate and terminating, or threatening to terminate, their employment for abiding
by their sincerely held religious beliefs. At the time of filing, Plaintiffs had not
exhausted the administrative remedies available to them for their claim of unlawful
employment discrimination, such as pursuing a complaint with the Maine Human
Rights Commission or Equal Employment Opportunity Commission.
16 Jane Does 1 through 5 and John Does 2 and 3.
35
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 36 of 41 PageID #: 798
The Supreme Court has “set a high standard for obtaining preliminary
injunctions restraining termination of employment.” Bedrossian v. Nw. Mem’l Hosp.,
409 F.3d 840, 845 (7th Cir. 2005) (citing Sampson v. Murray, 415 U.S. 61 (1974)).
The case must present a “genuinely extraordinary situation” to support granting an
injunction, Sampson, 415 U.S. at 92 n.68; allegations of “humiliation, damage to
reputation, and loss of income” are insufficient to meet that standard, Bedrossian,
409 F.3d at 845, as are “deterioration in skills” and “inability to find another job,” id.
at 846. Courts generally do not grant preliminary injunctions to prevent termination
of employment, because “the termination . . . of employment typically [is] not found
to result in irreparable injury.” 11A Charles Alan Wright, Arthur R. Miller, & Mary
Kay Kane, Federal Practice and Procedure § 2948.1 (3d ed. 2021). Injuries incurred
in employment discrimination claims may be addressed through remedies at law,
such as reinstatement, back pay, and damages. 42 U.S.C.A. § 2000e-5(g). In addition,
in the ordinary course, Title VII violations must be addressed first through the
administrative processes available under federal law. See 42 U.S.C.A. § 2000e-
5(f)(1)), see also Rodriguez v. United States, 852 F.3d 67, 78 (1st Cir. 2017) (“It is
settled that a federal court will not entertain employment discrimination claims
brought under Title VII unless administrative remedies have first been exhausted.”).
The Plaintiffs have not shown that the injuries they have suffered or may
suffer—the loss of their employment and economic harm—meet the high standard for
preliminary injunctive relief required to restrain an employer from terminating an
employee’s employment. Administrative remedies are available to the Plaintiffs that
have not been exhausted. For these reasons, Plaintiffs have not demonstrated a
36
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 37 of 41 PageID #: 799
likelihood of success on their Title VII claims to the degree needed to support
preliminary injunctive relief.
C. Equal Protection Clause
The Plaintiffs argue that the COVID-19 vaccine mandate impermissibly
creates a class of religious objectors and then subjects them to disparate treatment,
in violation of the Equal Protection Clause. “[W]here a law subject to an equal
protection challenge ‘does not violate [a plaintiff’s] right of free exercise of religion,’
courts do not ‘apply to the challenged classification a standard of scrutiny stricter
than the traditional rational-basis test.’” W.D., 521 F. Supp. 3d at 410 (second
alteration in original) (quoting A.M. ex rel. Messineo v. French, 431 F. Supp. 3d 432,
446 (D. Vt. 2019)); accord Wirzburger v. Galvin, 412 F.3d 271, 282-83 (1st Cir. 2005)
(“Because we [hold] that the [challenged law] does not violate the Free Exercise
Clause, we apply rational basis scrutiny to the fundamental rights based claim that
[the law] violates equal protection.”).
As described above, because the Plaintiffs have not demonstrated a likelihood
of success on their Free Exercise Clause claim and I have found, at this stage, that
the vaccine mandate is rationally based, the Plaintiffs have not demonstrated a
likelihood of success that their Equal Protection claim is warranted, and no additional
analysis is required.
D. Conspiracy
The Plaintiffs claim that the State and Hospital Defendants conspired to
violate their civil rights in violation of 42 U.S.C.A. § 1985, but provide only conclusory,
nonfactual allegations in support. Because a violation of Plaintiffs’ First Amendment
37
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 38 of 41 PageID #: 800
rights has not been demonstrated, and the Plaintiffs have not submitted any
declarations or other documentary evidence showing a conspiracy among the
Defendants, no additional analysis regarding the claimed conspiracy is warranted.
E. Supremacy Clause
Finally, the Plaintiffs contend that the Defendants violated the Supremacy
Clause of the U.S. Constitution by ignoring federal law and proceeding as if Maine
law supersedes federal law.
The Supremacy Clause “is not the ‘source of any federal rights,’ and certainly
does not create a cause of action.” Armstrong v. Exceptional Child Ctr., Inc., 575 U.S.
320, 324-25 (2015) (quoting Golden State Transit Corp. v. Los Angeles, 493 U.S. 103,
107 (1989)). Rather, the Supremacy Clause “creates a rule of decision” that “instructs
courts what to do when state and federal law clash.” Id. Additionally, the Plaintiffs’
assertion that “Defendants have explicitly claimed to healthcare workers in Maine,
including Plaintiffs, that federal law does not apply” in Maine is wholly unsupported
by the record. ECF No. 1 at ¶ 1.
The Plaintiffs have not demonstrated a likelihood of success on their
Supremacy Clause claim.
F. Irreparable Harm, Balancing of the Equities, and Effect of the Court’s
Action on the Public Interest
Where plaintiffs fail to meet their burden to show a likelihood of success on the
merits, “failure to do so is itself preclusive of the requested relief.” Bayley’s
Campground, Inc. v. Mills, 985 F.3d 153, 158 (1st Cir. 2021). In the interest of
completeness, though, I address the three remaining prongs of the preliminary
injunction inquiry.
38
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 39 of 41 PageID #: 801
First, the harm faced by Plaintiffs Jane Does 1 through 6 and John Does 2
through 3 is the loss of their employment, which, while serious and substantial, is not
irreparable. These plaintiffs may pursue remedies at law for alleged discriminatory
firings, including reinstatement, back pay, and damages. Although John Doe 1, as a
healthcare provider, faces the possibility of more consequential harm through the
potential loss of a business license, that harm does not outweigh the other factors I
must consider.
Second, the balance of equities favors the Defendants because of the strong
public interest promoted by the vaccine mandate, which includes preventing facility-
based COVID-19 outbreaks that risk the health of vulnerable patients, healthcare
workers, and the infrastructure of Maine’s healthcare system itself. If Plaintiffs were
granted injunctive relief preventing the Rule from being enforced, these objectives
would be thwarted. See Bayley’s Campground Inc. v. Mills, 463 F. Supp. 22, 38 (D.
Me. 2020) (denying injunctive relief against Maine’s COVID-19 quarantine
requirement for out-of-state visitors because “[t]he type of injunctive relief Plaintiffs
seek would upset the bedrock of the state’s public health response to COVID-19, an
area this Court does not wade into lightly”), aff’d, 985 F.3d 153 (1st Cir. 2021).
Finally, the vaccine mandate is directly aimed at promoting the public interest.
This factor weighs heavily against granting preliminary injunctive relief in this case.
Many courts that have examined requests for preliminary injunctions against
COVID-19 restrictions have come to this same conclusion, as it is clear that
“[w]eakening the State’s response to a public-health crisis by enjoining it from
enforcing measures employed specifically to stop the spread of COVID-19 is not in
39
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 40 of 41 PageID #: 802
the public interest.” Bimber’s Delwood, Inc. v. James, 496 F. Supp. 3d 760, 789
(W.D.N.Y. Oct. 21, 2020); see also Harris, 2021 WL 3848012, at *8 (“[G]iven the public
health efforts promoted by the [COVID-19] Vaccine Policy, enjoining the continuation
of same is not in the public interest.”); Klaassen, 2021 WL 3073926, at *43 (noting
that when individuals refuse vaccination, “the evidence reasonably shows that they
aren’t the only ones harmed by refusing to get vaccinated: refusing while also not
complying with heightened safety precautions could ‘sicken and even kill many others
who did not consent to that trade-off,’” which “certainly impacts the public interest”
(quoting Cassell v. Snyders, 990 F.3d 539, 550 (7th Cir. 2021)). So too, here.
Enjoining the Rule is not in the public interest.
Thus, in addition to failing to show a likelihood of success on the merits, I find
that the Plaintiffs have not demonstrated an entitlement to relief under any of the
three other factors in the preliminary injunction inquiry.
V. CONCLUSION
Both the serious risk of illness and death associated with the spread of the
COVID-19 virus and the efforts by state and local governments to reduce that risk
have burdened most aspects of modern life. 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. 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
40
Case 1:21-cv-00242-JDL Document 65 Filed 10/13/21 Page 41 of 41 PageID #: 803
have they demonstrated that, as they contend, the vaccine mandate was motivated
by any improper animus toward religion.
Because the Plaintiffs have not established grounds that would warrant the
entry of a preliminary injunction enjoining the enforcement of Maine’s Covid-19
vaccine mandate for healthcare workers, the Motion for Preliminary Injunction (ECF
No. 3) is DENIED.
SO ORDERED.
Dated this 13th day of October, 2021.
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE
41
6
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 1 of 59 PageID #: 1
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
Bangor Division
JANE DOES 1–6, JOHN DOES 1–3, )
JACK DOES 1–1000, JOAN DOES 1–1000, )
)
Plaintiffs, )
v. ) Case No. ___________________
)
JANET T. MILLS, in her official capacity as )
Governor of the State of Maine, )
JEANNE M. LAMBREW, in her official capacity )
as Commissioner of the Maine Department of )
Health and Human Services, )
NIRAV D. SHAH, in his official capacity as )
Director of the Maine Center for Disease Control )
and Prevention, )
MAINEHEALTH, )
GENESIS HEALTHCARE OF MAINE, LLC, )
GENESIS HEALTHCARE, LLC, )
NORTHERN LIGHT HEALTH FOUNDATION, )
MAINEGENERAL HEALTH, )
)
Defendants. )
“I believe we must do everything in our power not to fan the flames of fear but to encourage
public health professionals . . . to continue their brave humanitarian work.”—Janet Mills1
VERIFIED COMPLAINT FOR TEMPORARY RESTRAINING ORDER,
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF,
DECLARATORY RELIEF AND DAMAGES
For their VERIFIED COMPLAINT against Defendants, JANET T. MILLS, in her official
capacity as Governor of the State of Maine, JEANNE M. LAMBREW, in her official capacity as
Commissioner of the Maine Department of Health and Human Services, NIRAV D. SHAH, in his
official capacity as Director of the Maine Center for Disease Control and Prevention,
1
Jacob Sullum, Ebola Panic Control, Reason.com (Nov. 5, 2014),
https://reason.com/2014/11/05/ebola-panic-control/ (quoting then-Attorney General Janet Mills
concerning unwarranted quarantine orders against healthcare professionals) (emphasis added)).
1
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 2 of 59 PageID #: 2
MAINEHEALTH, GENESIS HEALTHCARE OF MAINE, LLC, GENESIS HEALTHCARE,
LLC, NORTHERN LIGHT HEALTH FOUNDATION, and MAINEGENERAL HEALTH
(“Defendants”), Plaintiffs, JANE DOES 1-6, JOHN DOES 1-3, JACK DOES 1-1000, and JOAN
DOES 1-1000 (“Plaintiffs”), allege and aver as follows:
URGENCIES JUSTIFYING EMERGENCY RELIEF
1. The seminal issue before this Court can be boiled down to a simple question: Does
federal law apply in Maine? Though the question borders on the absurd, so does Defendants’
answer to it. Defendants have explicitly claimed to healthcare workers in Maine, including
Plaintiffs, that federal law does not apply, and neither should they. Defendants have informed
Plaintiffs, who have sincerely held religious objections to the Governor’s mandate that all
healthcare workers in Maine must receive a COVID-19 vaccine by October 1, 2021 (the
“COVID-19 Vaccine Mandate”), that no protections or considerations are given to religious
beliefs in Maine. Indeed, Defendants’ answer has been an explicit claim that federal law does not
provide protections to Maine’s healthcare workers. When presented with requests from Plaintiffs
for exemption and accommodation for their sincerely held religious beliefs, Defendants have
responded in the following ways:
• “I can share MaineHealth’s view that federal law does not supersede state
law in this instance.” (See infra ¶87 (emphasis added).)
• “[W]e are no longer able to consider religious exemptions for those who
work in the state of Maine.” (See infra ¶84 (bold emphasis original).)
• “All MaineGeneral employees will have to be vaccinated against
COVID-19 by Oct. 1 unless they have a medical exemption. The mandate
also states that only medical exemptions are allowed, no religious
exemptions are allowed.” (Infra ¶93 (emphasis added).)
• “Allowing for a religious exemption would be a violation of the state
mandate issued by Governor Mills. So, unfortunately, that is not an option
for us.” (Infra ¶94.)
2
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 3 of 59 PageID #: 3
2. The answer to the question before this Court is clear: federal law and the United
States Constitution are supreme over any Maine statute or edict, and Maine cannot override,
nullify, or violate federal law. See U.S. Const. Art. VI, cl. 2 (“This Constitution, and the Laws of
the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall
be made, under the Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.”). “This Court has long made clear that federal law is as much
the law of the several States as are the laws passed by their legislatures.” Haywood v. Drown,
556 U.S. 729, 734 (2009) (emphasis added). Indeed, “[i]t is a familiar and well-established
principle that the Supremacy Clause . . . invalidates state laws that interfere with, or are
contrary to, federal law. Under the Supremacy Clause . . . state law is nullified to the extent
that it actually conflicts with federal law.” Hillsborough Cnty. v. Automated Med. Labs., Inc.,
471 U.S. 707, 712-13 (1985) (emphasis added) (cleaned up).
3. Thus, there can be no dispute that Maine is required to abide by federal law and
provide protections to employees who have sincerely held religious objections to the
COVID-19 vaccines. And, here, the federal law is clear: There can be no dispute that Title VII of
the Civil Rights Act prohibits Defendants from discriminating against Plaintiffs on the basis of
their sincerely held religious beliefs. 42 U.S.C. §2000e-2(a) (“It shall be an unlawful employment
practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment because of such individual’s . . . religion.”). And, Defendants have a
duty under Title VII to provide religious exemptions and accommodations to those with sincerely
held religious objections to the COVID-19 Vaccine Mandate. In direct contrast to this
3
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 4 of 59 PageID #: 4
unquestionable principle of black letter law, however, every Defendant in this suit has seen fit to
claim to its healthcare workers that the converse is true, and that Maine law is supreme over federal
law; has engaged in a conspiracy and scheme to discourage employees with religious objections
to the mandatory vaccines from even seeking religious exemptions from such a policy; has
informed Plaintiffs that their requests for an exemption and accommodation from the mandate
cannot even be evaluated or considered; and has flatly denied all requests for religious exemption
and accommodation from the mandate that all healthcare workers receive a COVID-19 vaccine.
Employers bent on discrimination “usually don’t post help wanted signs reading ‘blacks need not
apply.’” Lewis v. City of Unity City, 918 F.3d 1213, 1261 (11th Cir. 2019) (Rosenbaum, J.,
concurring in part). But Maine and its healthcare employers have no problem being direct:
“religious misbelievers need not apply.”
4. The dispute in this case is not about what accommodations are available to Plaintiffs
or whether accommodation of Plaintiffs’ sincerely held religious objections can be conditioned on
compliance with certain reasonable requirements. Plaintiffs have already acknowledged to
Defendants that they are willing to comply with reasonable health and safety requirements that
were deemed sufficient a mere two weeks ago. The dispute is about whether Defendants are
required to even consider a request for reasonable accommodation of Plaintiffs’ sincerely
held religious beliefs. The answer is clear: yes. And this Court should require Defendants to
acknowledge and accept that federal law mandates accommodation for Plaintiffs’ sincerely held
religious beliefs and order that Defendants extend such protections.
5. Plaintiffs have been given a deadline to become vaccinated by October 1, 2021,
forcing them to accept a vaccine injection by September 17, 2021 at the latest. If Plaintiffs do
not comply with the vaccine mandate, they will be terminated and deprived of their ability
4
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 5 of 59 PageID #: 5
to feed their families. No American should be faced with this unconscionable choice,
especially the healthcare heroes who have served us admirably for the entire duration of
COVID-19. A TRO is needed now to ensure that Defendants are enjoined from their
continued efforts to deny that federal law even applies in Maine and to compel Defendants
to extend the protections that federal law demands of them. Plaintiffs will suffer (and some
have already suffered) irreparable harm by being forced to choose between their jobs and
their sincerely held religious beliefs. Despite the Governor’s mandate only requiring full
vaccination by October 1, Plaintiff Jane Doe 2 was told her deadline to comply with the
mandate was August 23, and she has already suffered termination as a result of the
Governor’s mandate. Relief from this unconscionable and unlawful deprivation of Plaintiffs’
liberties cannot wait another day.
6. Earlier this year, the Governor rightfully declared that Maine’s healthcare workers
were “Superheroes” and requested that “all Maine people join me in thanking all of our healthcare
workers who have heeded the call of duty and worked long hours, days, and weeks, often at great
sacrifice to themselves and their families, to protect Maine people during this extraordinary crisis.”
Office of Governor Janet T. Mills, Governor Mills Announces Four Maine Healthcare
Superheroes to Attend Super Bowl LV Thanks to Generosity of New England Patriots’ Kraft
Family (Feb. 2, 2021), https://www.maine.gov/governor/mills/news/governor-mills-announces-
four-maine-healthcare-superheroes-attend-super-bowl-lv-thanks. Every word of that statement is
equally as true today as it was the day the Governor uttered it. Yet, on August 12, 2021, those
same superheroes have now been cast as evil villains for requesting exemption and
accommodation from the Governor’s edict for their sincerely held religious beliefs.
5
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 6 of 59 PageID #: 6
7. Neither the Governor nor any of the Defendant employers is permitted to blatantly
ignore federal protections under the First Amendment and Title VII, yet that is precisely why
emergency relief is needed in the instant action: Plaintiffs need an order mandating that
Defendants follow federal protections for religious objectors to the COVID-19 Vaccine
Mandate.
8. Plaintiffs are all healthcare workers in Maine who have sincerely held religious
beliefs that preclude them from accepting any of the COVID-19 vaccines because of the vaccines’
connections to aborted fetal cell lines and for other religious reasons that have been articulated to
Defendants. Since COVID-19 first arrived in Maine, Plaintiffs have risen every morning, donned
their personal protective equipment, and fearlessly marched into hospitals, doctor’s offices,
emergency rooms, operating rooms, and examination rooms with one goal: to provide quality
healthcare to those suffering from COVID-19 and every other illness or medical need that
confronted them. They did it bravely and with honor. They answered the call of duty to provide
healthcare to the folks who needed it the most and worked tirelessly to ensure that those ravaged
by the pandemic were given appropriate care. All Plaintiffs seek in this lawsuit is to be able to
continue to provide the healthcare they have provided to patients for their entire careers,
and to do so under the same protective measures that have sufficed for them to be considered
superheroes for the last 18 months. Defendants shamelessly seek to throw these healthcare
workers out into the cold and ostracize them from the very medical facilities for which they have
sacrificed so much solely because of Plaintiffs’ desire to continue to provide quality healthcare
while still exercising their sincerely held religious beliefs.
9. The law mandates that Defendants permit them to do both. Regardless of whether
Maine sees fit to extend protections to religious objectors under its own statutory framework,
6
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 7 of 59 PageID #: 7
federal law demands that these Plaintiffs and all employees in Maine receive protections for
their sincerely held religious beliefs. This Court should hold Maine to the bargain it made with
its citizens when it joined the union and ensure that Maine extends the required protections that
federal law demands. As the Supreme Court held just last year, “even in a pandemic, the
Constitution cannot be put away and forgotten.” Roman Catholic Diocese of Brooklyn v.
Cuomo, 141 S. Ct. 63, 68 (2021) (emphasis added). When we have demanded so much of our
healthcare heroes, we owe them nothing less than the full measure of our own commitment to
constitutional principles. Anything less would be desecrating the sacrifice these medical heroes
made for untold numbers of people—including Defendants—when the call of duty demanded it of
them.
PARTIES
10. Plaintiff Jane Doe 1 is a citizen of the State of Maine and is a healthcare worker
employed by Defendant MaineHealth at one of its healthcare facilities in Maine. Jane Doe 1
submitted a written request for an exemption and accommodation from the Governor’s COVID-19
Vaccine Mandate based upon her sincerely held religious beliefs but was denied an exemption
because MaineHealth informed her that the Governor does not allow MaineHealth to consider or
grant religious exemption or accommodation requests.
11. Plaintiff Jane Doe 2 is a citizen of the State of Maine and is a healthcare worker
employed by Genesis Healthcare at one of its healthcare facilities in Maine. Jane Doe 2 submitted
a written request for an exemption and accommodation from the Governor’s COVID-19 Vaccine
Mandate based upon her sincerely held religious beliefs but was denied an exemption because
Genesis Healthcare informed her that the Governor does not allow Genesis Healthcare to consider
or grant religious exemption or accommodation requests. Jane Doe 2 was given until August 23rd
7
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 8 of 59 PageID #: 8
to receive the vaccination or be terminated from her employment in the healthcare industry. Jane
Doe 2 has received notification that the exercise of her religious beliefs has resulted in her
termination from Genesis Healthcare.
12. Plaintiff Jane Doe 3 is a citizen of the State of Maine and is a healthcare worker
employed by Northern Light Health Foundation at one of its healthcare facilities in Maine. Jane
Doe 3 submitted a written request for an exemption and accommodation from the Governor’s
COVID-19 Vaccine Mandate based upon her sincerely held religious beliefs but was denied an
exemption because Northern Light Health Foundation informed her that the Governor does not
allow Northern Light Health Foundation to consider or grant religious exemption or
accommodation requests.
13. Plaintiff Jane Doe 4 is a citizen of the State of Maine and is a healthcare worker
employed by Northern Light Health Foundation at one of its healthcare facilities in Maine. Jane
Doe 4 submitted a written request for an exemption and accommodation from the Governor’s
COVID-19 Vaccine Mandate based upon her sincerely held religious beliefs but was denied an
exemption because Northern Light Health Foundation informed her that the Governor does not
allow Northern Light Health Foundation to consider or grant religious exemption or
accommodation requests.
14. Plaintiff Jane Doe 5 is a citizen of the State of Maine and is a healthcare worker
employed by MaineGeneral Health at one of its healthcare facilities in Maine. Jane Doe 5
submitted a written request for an exemption and accommodation from the Governor’s COVID-19
Vaccine Mandate based upon her sincerely held religious beliefs but was denied an exemption
because MaineGeneral Health informed her that the Governor does not allow MaineGeneral
Health to consider or grant religious exemption or accommodation requests.
8
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 9 of 59 PageID #: 9
15. Plaintiff Jane Doe 6 is a citizen of the State of Maine and is a healthcare worker
employed by Plaintiff John Doe 1. Jane Doe 6 has sincerely held religious objections to accepting
or receiving the COVID-19 vaccine, but the Governor’s mandate against her employer threatens
to close his practice and revoke his business license for granting Jane Doe 6’s request for an
accommodation based on her sincerely held religious beliefs.
16. Plaintiff John Doe 1 is a licensed healthcare provider in Maine, operating his own
practice with employees who all have sincerely held religious objections to the Governor’s
COVID-19 Vaccine Mandate. John Doe 1 has sincerely held religious objections to accepting or
receiving the COVID-19 vaccines (see infra) and has sincerely held religious beliefs that he is to
honor the sincerely held religious beliefs of his employees who object to the COVID-19 vaccines.
John Doe 1 has been threatened with closure of his practice and loss of his business license for
considering and granting religious accommodations and exemptions to his employees.
17. Plaintiff John Doe 2 is a citizen of the State of Maine and is a healthcare worker
employed by Genesis Healthcare at one of its healthcare facilities in Maine. John Doe 2 submitted
a written request for an exemption and accommodation from the Governor’s COVID-19 Vaccine
Mandate based upon his sincerely held religious beliefs but was denied an exemption because
Genesis Healthcare informed him that the Governor does not allow Genesis Healthcare to consider
or grant religious exemption or accommodation requests.
18. Plaintiff John Doe 3 is a citizen of the State of Maine and is a healthcare worker
employed by Northern Light Health Foundation at one of its healthcare facilities in Maine. John
Doe 3 submitted a written request for an exemption and accommodation from the Governor’s
COVID-19 Vaccine Mandate based upon his sincerely held religious beliefs but was denied an
exemption because Northern Light Health Foundation informed him that the Governor does not
9
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 10 of 59 PageID #: 10
allow Northern Light Health Foundation to consider or grant religious exemption or
accommodation requests.
19. Plaintiffs Jack Does 1–250 are citizens of the State of Maine and are healthcare
workers employed by MaineHealth at its healthcare facilities in Maine. Jack Does 1–250 would
like to submit requests for exemptions and accommodations but have been told not to do so or
have submitted written requests for exemptions and accommodations from the Governor’s
COVID-19 Vaccine Mandate based upon their sincerely held religious beliefs but were denied
exemptions because MaineHealth informed Jack Does 1–250 that the Governor does not allow
MaineHealth to consider or grant religious exemption or accommodation requests.
20. Plaintiffs Joan Does 1–250 are citizens of the State of Maine and are healthcare
workers employed by MaineHealth at its healthcare facilities in Maine. Joan Does 1–250 would
like to submit requests for exemptions and accommodations but have been told not to do so or
have submitted written requests for exemptions and accommodations from the Governor’s
COVID-19 Vaccine Mandate based upon their sincerely held religious beliefs but were denied
exemptions because MaineHealth informed Joan Does 1–250 that the Governor does not allow
MaineHealth to consider or grant religious exemption or accommodation requests.
21. Plaintiffs Jack Does 251–500 are citizens of the State of Maine and are healthcare
workers employed by Northern Light Health Foundation at its healthcare facilities in Maine. Jack
Does 251–500 would like to submit requests for exemptions and accommodations but have been
told not to do so or have submitted written requests for exemptions and accommodations from the
Governor’s COVID-19 Vaccine Mandate based upon their sincerely held religious beliefs but were
denied exemptions because Northern Light Health Foundation informed Jack Does 251–500 that
10
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 11 of 59 PageID #: 11
the Governor does not allow Northern Light Health Foundation to consider or grant religious
exemption or accommodation requests.
22. Plaintiffs Joan Does 251–500 are citizens of the State of Maine and are healthcare
workers employed by Northern Light Health Foundation at its healthcare facilities in Maine. Joan
Does 251–500 would like to submit requests for exemptions and accommodations but have been
told not to do so or have submitted written requests for exemptions and accommodations from the
Governor’s COVID-19 Vaccine Mandate based upon their sincerely held religious beliefs but were
denied exemptions because Northern Light Health Foundation informed Joan Does 251–500 that
the Governor does not allow Northern Light Health Foundation to consider or grant religious
exemption or accommodation requests.
23. Plaintiffs Jack Does 501–750 are citizens of the State of Maine and are healthcare
workers employed by Genesis Healthcare at its healthcare facilities in Maine. Jack Does 501–750
would like to submit requests for exemptions and accommodations but have been told not to do so
or have submitted written requests for exemptions and accommodations from the Governor’s
COVID-19 Vaccine Mandate based upon their sincerely held religious beliefs but were denied
exemptions because Genesis Healthcare informed Jack Does 501–750 that the Governor does not
allow Genesis Healthcare to consider or grant religious exemption or accommodation requests.
24. Plaintiffs Joan Does 501–750 are citizens of the State of Maine and are healthcare
workers employed by Genesis Healthcare at its healthcare facilities in Maine. Joan Does 501–750
would like to submit requests for exemptions and accommodations but have been told not to do so
or have submitted written requests for exemptions and accommodations from the Governor’s
COVID-19 Vaccine Mandate based upon their sincerely held religious beliefs but were denied
11
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 12 of 59 PageID #: 12
exemptions because Genesis Healthcare informed Joan Does 501–750 that the Governor does not
allow Genesis Healthcare to consider or grant religious exemption or accommodation requests.
25. Plaintiffs Jack Does 751–1000 are citizens of the State of Maine and are healthcare
workers employed by MaineGeneral Health at its healthcare facilities in Maine. Jack Does 751–
1000 would like to submit requests for exemptions and accommodations but have been told not to
do so or have submitted written requests for exemptions and accommodations from the Governor’s
COVID-19 Vaccine Mandate based upon their sincerely held religious beliefs but were denied
exemptions because MaineGeneral Health informed Jack Does 751–1000 that the Governor does
not allow MaineGeneral Health to consider or grant religious exemption or accommodation
requests.
26. Plaintiffs Joan Does 751–1000 are citizens of the State of Maine and are healthcare
workers employed by MaineGeneral Health at its healthcare facilities in Maine. Joan Does 751–
1000 would like to submit requests for exemptions and accommodations but have been told not to
do so or have submitted written requests for exemptions and accommodations from the Governor’s
COVID-19 Vaccine Mandate based upon their sincerely held religious beliefs but were denied
exemptions because MaineGeneral Health informed Joan Does 751–1000 that the Governor does
not allow MaineGeneral Health to consider or grant religious exemption or accommodation
requests.
27. Defendant, Janet T. Mills, in her official capacity as Governor of the State of Maine
(“the Governor”) is responsible for enacting the COVID-19 Vaccine Mandate. Governor Mills is
sued in her official capacity
28. Defendant Jeanne M. Lambrew, in her official capacity as the Commissioner of the
Maine Department of Health and Human Services is responsible for overseeing the healthcare
12
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 13 of 59 PageID #: 13
industry in Maine and is responsible for the Governor’s COVID-19 Vaccine Mandate and
enforcing the provisions of threatened loss of licensure for those healthcare providers who refuse
to mandate the COVID-19 vaccine. Defendant Lambrew is sued in her official capacity.
29. Defendant Nirav D. Shah in his official capacity as the Director of the Maine Center
for Disease Control and Prevention is responsible for overseeing the healthcare industry in Maine
and is responsible for the Governor’s COVID-19 mitigation measures and COVID-19 Vaccine
Mandate and enforcing the provisions of threatened loss of licensure for those healthcare providers
who refuse to mandate the COVID-19 vaccine. Defendant Shah is sued in his official capacity.
30. Defendant MaineHealth is a nonprofit corporation incorporated under the laws of
the State of Maine, employees a number of Plaintiffs in this action, has refused to even consider
requests for religious accommodations, and has threatened to terminate Plaintiffs for their refusal
to accept a vaccine that violates their sincerely held religious beliefs.
31. Defendant Genesis Healthcare of Maine, LLC is a limited liability company
organized under the laws of the State of Maine, employees a number of Plaintiffs in this action,
has refused to even consider requests for religious accommodations, and has threatened to
terminate Plaintiffs for their refusal to accept a vaccine that violates their sincerely held religious
beliefs. Defendant Genesis Healthcare, LLC is a foreign limited liability company organized under
the laws of the State of Delaware and is a corporate parent of Genesis Healthcare of Maine, LLC.
Plaintiffs collectively refer to the parent and subsidiary corporations as Genesis Healthcare in this
Verified Complaint.
32. Defendant Northern Light Health Foundation is a nonprofit corporation
incorporated under the laws of the State of Maine, employees a number of Plaintiffs in this action,
has refused to even consider requests for religious accommodations, and has threatened to
13
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 14 of 59 PageID #: 14
terminate Plaintiffs for their refusal to accept a vaccine that violates their sincerely held religious
beliefs.
33. Defendant MaineGeneral Health is a nonprofit corporation incorporated under the
laws of the State of Maine, employees a number of Plaintiffs in this action, has refused to even
consider requests for religious accommodations, and has threatened to terminate Plaintiffs for their
refusal to accept a vaccine that violates their sincerely held religious beliefs.
JURISDICTION AND VENUE
34. This action arises under the First and Fourteenth Amendments to the United States
Constitution and is brought pursuant to 42 U.S.C. § 1983. This action also arises under federal
statutory laws, namely 42 U.S.C. § 1985(3) and 42 U.S.C. § 2000e-2.
35. This Court has jurisdiction over the instant matter pursuant to 28 U.S.C. §§ 1331
and 1343.
36. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) because a
substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.
37. This Court is authorized to grant declaratory judgment under the Declaratory
Judgment Act, 28 U.S.C. §§ 2201–02, implemented through Rule 57 of the Federal Rules of Civil
Procedure.
38. This Court is authorized to grant Plaintiffs’ prayer for a temporary restraining order
and preliminary and permanent injunctive relief pursuant to Rule 65 of the Federal Rules of Civil
Procedure.
39. This Court is authorized to grant Plaintiffs’ prayer for relief regarding damages
under 42 U.S.C. § 2000e-5.
14
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 15 of 59 PageID #: 15
40. This Court is authorized to grant Plaintiffs’ prayer for relief regarding costs,
including a reasonable attorney’s fee, pursuant to 42 U.S.C. § 1988.
GENERAL ALLEGATIONS
A. THE GOVERNOR’S COVID-19 VACCINE MANDATE FOR
HEALTHCARE WORKERS.
41. On August 12, 2021, Governor Mills announced that Maine will now require health
care workers to accept or receive one of the three, currently available COVID-19 vaccines in order
to remain employed in the healthcare profession. See Office of Governor Janet Mills, Mills
Administration Requires Health Care Workers To Be Fully Vaccinated Against COVID-19 By
October 1 (Aug. 12, 2021), https://www.maine.gov/governor/mills/news/mills-administration-
requires-health-care-workers-be-fully-vaccinated-against-covid-19-october (last visited Aug. 24,
2021) (hereinafter “COVID-19 Vaccine Mandate”). (A true and correct copy of the Governor’s
COVID-19 Vaccine Mandate is attached hereto as EXHIBIT A and incorporated herein.)
42. The Governor’s COVID-19 Vaccine Mandate defines health care workers as “any
individual employed by a hospital, multi-level health care facility, home health agency, nursing
facility, residential care facility, and intermediate care facility for individuals with intellectual
disabilities that is licensed by the State of Maine” as well as “those employed by emergency
medical service organizations or dental practices.”
43. The Governor’s COVID-19 Vaccine Mandate also says that “[t]he organizations to
which this requirement applies must ensure that each employee is vaccinated, with this
requirement being enforced as a condition of the facilities’ licensure.”
44. Thus, the Governor has threatened to revoke the licenses of all health care
employers who fail to mandate that all employees receive the COVID-19 vaccine.
15
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 16 of 59 PageID #: 16
45. In addition to the Governor’s mandate, Plaintiffs and all health care workers in
Maine were also stripped of their rights to request a religious exemption and accommodation from
the COVID-19 Vaccine Mandate.
46. On August 14, 2021, Dr. Shah and the Maine Center for Disease Control and
Prevention (“MCDC”) amended 10-144 C.M.R. Ch. 264 to eliminate the ability of health care
workers in Maine to request and obtain a religious exemption and accommodation from the
COVID-19 Vaccine Mandate.
47. The only exemptions Maine now lists as available to health care workers are those
outlined in 22 M.R.S. § 802.4-B, which purports to exempt only those individuals for whom an
immunization is medically inadvisable and who provide a written statement from a doctor
documenting the need for an exemption.
48. Under the prior version of the rule, 10-144 C.M.R. Ch. 264, §3-B a health care
worker could be exempt from mandatory immunizations if the “employee states in writing an
opposition to immunization because of a sincerely held religious belief.” Id.
49. In fact, as acknowledged by MCDC, Maine removed the religious exemption to
mandatory immunizations in early August 2021. See Division of Disease Surveillance, Maine
Vaccine Exemption Law Change 2021, https://www.maine.gov/dhhs/mecdc/infectious-
disease/immunization/maine-vaccine-exemption-law-changes.shtml (last visited Aug. 17, 2021)
(“The health care immunization law has removed the allowance for philosophical and religious
exemptions and has included influenza as a required immunization.”).
B. PLAINTIFFS’ SINCERELY HELD RELIGIOUS OBJECTIONS TO
COVID-19 VACCINE MANDATE.
50. Plaintiffs all have sincerely held religious beliefs that preclude them from accepting
or receiving any of the three available COVID-19 vaccines because of the connection between the
16
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 17 of 59 PageID #: 17
various COVID-19 vaccines and the cell lines of aborted fetuses, whether in the vaccines’
origination, production, development, testing, or other inputs.
51. A fundamental component of Plaintiffs’ sincerely held religious beliefs is that all
life is sacred, from the moment of conception to natural death, and that abortion is a grave sin
against God and the murder of an innocent life.
52. Plaintiffs’ sincerely held religious beliefs are rooted in Scripture’s teachings that
“[a]ll Scripture is given by inspiration of God, and is profitable for doctrine, for reproof, for
correction, [and] for instruction in righteousness.” 2 Timothy 3:16 (KJV).
53. Because of that sincerely held religious belief, Plaintiffs believe that they must
conform their lives, including their decisions relating to medical care, to the commands and
teaching of Scripture.
54. Plaintiffs have sincerely held religious beliefs that God forms children in the womb
and knows them prior to their birth, and that because of this, life is sacred from the moment of
conception. See Psalm 139:13–14 (ESV) (“For you formed my inward parts; you knitted me
together in my mother’s womb. I praise you, for I am fearfully and wonderfully made.”); Psalm
139:16 (ESV) (“Your eyes saw my unformed substance; in your book were written, every one of
them, the days that were formed for me, when as yet there was none of them.”); Isaiah 44:2 (KJV)
(“the LORD that made thee, and formed thee from the womb”); Isaiah 44:24 (KJV) (“Thus saith
the LORD, thy redeemer, and he that formed thee from the womb, I am the LORD that maketh all
things.”); Isaiah 49:1 (KJV) (“The LORD hath called my from the womb; from the bowels of my
mother hath he made mention of my name.”); Isaiah 49:5 (KJV) (“the LORD that formed me from
the womb to be his servant”); Jeremiah 1:5 (KJV) (“Before I formed thee in the belly I knew thee;
and before thou camest forth out of the womb I sanctified thee, and I ordained thee.”).
17
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 18 of 59 PageID #: 18
55. Plaintiffs also have sincerely held religious beliefs that every child’s life is sacred
because they are made in the image of God. See Genesis 1:26–27 (KJV) (“Let us make man in our
image, after our likeness. . . . So God created man in his own image; in the image of God created
he him; male and female created he them.”).
56. Plaintiffs also have sincerely held religious beliefs that because life is sacred from
the moment of conception, the killing of that innocent life is the murder of an innocent human in
violation of Scripture. See, e.g., Exodus 20:13 (KJV) (“Though shalt not kill.”); Exodus 21:22–23
(setting the penalty as death for even the accidental killing of an unborn child); Exodus 23:7 (KJV)
(“the innocent and righteous slay thou not, for I will not justify the wicked”); Genesis 9:6 (KJV)
(“Whoso sheddeth a man’s blood, by man shall his blood by shed: for in the image of God made
he man.”); Deuteronomy 27:25 (KJV) (“Cursed be he that taketh reward to slay an innocent
person.”); Proverbs 6:16–17 (KJV) (“These six things doth the LORD hate: yea, seven are an
abomination to him . . . hands that shed innocent blood.”).
57. Plaintiffs also have the sincerely held religious belief that it would be better to tie a
millstone around their necks and be drowned in the sea than bring harm to an innocent child. See
Matthew 18:6; Luke 17:2.
58. Plaintiffs have sincerely held religious beliefs, rooted in the Scriptures listed above,
that anything that condones, supports, justifies, or benefits from the taking of innocent human life
via abortion is sinful, contrary to the Scriptures, and must be denounced, condemned, and avoided
altogether.
59. Plaintiffs have sincerely held religious beliefs, rooted in the Scriptures listed above,
that it is an affront to Scripture’s teaching that all life is sacred when any believer uses a product
derived from or connected in any way with abortion.
18
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 19 of 59 PageID #: 19
60. Plaintiffs’ sincerely held religious beliefs, rooted in the above Scriptures, preclude
them from accepting any one of the three currently available COVID-19 vaccines derived from,
produced or manufactured by, tested on, developed with, or otherwise connected to aborted fetal
cell lines.
61. Plaintiffs have sincerely held religious objections to the Johnson & Johnson
(Janssen Pharmaceuticals) vaccine because it unquestionably used aborted fetal cells lines to
produce and manufacture the vaccine.
62. As reported by the North Dakota Department of Health, in its handout literature for
those considering one of the COVID-19 vaccines, “[t]he non-replicating viral vector vaccine
produced by Johnson & Johnson did require the use of fetal cell cultures, specifically PER.C6,
in order to produce and manufacture the vaccine.” See North Dakota Health, COVID-19
Vaccines & Fetal Cell Lines (Apr. 20, 2021), available at
https://www.health.nd.gov/sites/www/files/documents/COVID%20Vaccine%20Page/COVID-19
_Vaccine_Fetal_Cell_Handout.pdf (last visited Aug. 2, 2021) (bold emphasis original).
63. The Louisiana Department of Health likewise confirms that the Johnson & Johnson
COVID-19 vaccine, which used the PER.C6 fetal cell line, “is a retinal cell line that was isolated
from a terminated fetus in 1985.” Louisiana Department of Public Health, You Have Questions,
We Have Answers: COVID-19 Vaccine FAQ (Dec. 12, 2020), https://ldh.la.gov/assets/oph/Center-
PHCH/CenterPH/immunizations/You_Have_Qs_COVID-19_Vaccine_FAQ.pdf (last visited
Aug. 2, 2021) (emphasis added).
64. Scientists at the American Association for the Advancement of Science have
likewise published research showing that the Johnson & Johnson vaccine used aborted fetal cell
lines in the development and production phases of the vaccine. Meredith Wadman, Vaccines that
19
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 20 of 59 PageID #: 20
use human fetal cells draw fire, Science (June 12, 2020), available at
https://science.sciencemag.org/content/368/6496/1170.full (last visited Aug. 22, 2021).
65. Plaintiffs have sincerely held religious objections to the Moderna and
Pfizer/BioNTech COVID-19 vaccines because both of these vaccines, too, have their origins in
research on aborted fetal cells lines.
66. As reported by the North Dakota Department of Health, in its handout literature for
those considering one of the COVID-19 vaccines, the Moderna and Pfizer mRNA vaccines are
ultimately derived from research and testing on aborted fetal cell lines. In fact, “[e]arly in the
development of mRNA vaccine technology, fetal cells were used for ‘proof of concept’ (to
demonstrate how a cell could take up mRNA and produce the SARS-CoV-2 spike protein)
or to characterize the SARS-CoV-2 spike protein.” See North Dakota Health, COVID-19
Vaccines & Fetal Cell Lines (Apr. 20, 2021), available at
https://www.health.nd.gov/sites/www/files/documents/COVID%20Vaccine%20Page/COVID-19
_Vaccine_Fetal_Cell_Handout.pdf (last visited Aug. 22, 2021) (emphasis added).
67. The Louisiana Department of Health’s publications again confirm that aborted fetal
cells lines were used in the “proof of concept” phase of the development of their COVID-19
mRNA vaccines. Louisiana Department of Public Health, You Have Questions, We Have Answers:
COVID-19 Vaccine FAQ (Dec. 12, 2020), available at https://ldh.la.gov/assets/oph/Center-
PHCH/Center-PH/immunizations/You_Have_Qs_COVID-19_Vaccine_FAQ.pdf (last visited
Aug. 22, 2021).
68. Because all three of the currently available COVID-19 vaccines are developed and
produced from, tested with, researched on, or otherwise connected with the aborted fetal cell lines
HEK-293 and PER.C6, Plaintiffs’ sincerely held religious beliefs compel them to abstain from
20
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 21 of 59 PageID #: 21
obtaining or injecting any of these products into their body, regardless of the perceived benefit or
rationale.
69. Plaintiffs have sincerely held religious beliefs that their bodies are temples of the
Holy Spirit, and that to inject medical products that have any connection whatsoever to aborted
fetal cell lines would be defiling the temple of the Holy Spirit. (See 1 Corinthians 6:15-20 (KJV)
(“Know ye not that your bodies are the members of Christ? shall I then take the members of Christ
and make them members of an harlot? God forbid. . . . What? Know ye not that your body is the
temple of the Holy Ghost which is in you, which have of God, and ye are not your own? For ye
are bought with a price: therefore glorify God in your body, and in your spirit, which are God’s.”).
70. In addition to their sincerely held religious beliefs that compel them to abstain from
any connection to the grave sin of abortion, Plaintiffs have sincerely held religious beliefs that the
Holy Spirit—through prayer and the revelation of Scripture—guide them in all decisions they
make in life.
71. Plaintiffs have sincerely held religious beliefs that Jesus Christ came to this earth,
died on the cross for their sins, and was resurrected three days later, and that when He ascended to
Heaven, He sent the Holy Spirit to indwell His believers and to guide them in all aspects of their
lives. See John 16:7 (KJV) (“Nevertheless I tell you the truth, It is expedient for you that I go
away: for if I go not away, the Comforter will not come unto you; but if I depart, I will send him
unto you.”); John 14:26 (KJV) (“But the Comforter, which is the Holy Ghost, whom the Father
will send in my name, he shall teach you all things, and bring all things to your remembrance,
whatsoever I have said unto you.”).
72. Plaintiffs have sincerely held religious beliefs that the Holy Spirit was given to
them by God to reprove them of righteousness and sin and to guide them into all truth. See John
21
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 22 of 59 PageID #: 22
16:8, 13 (KJV) (“And when he is come, he will reprove the world of sin, and of righteousness, and
of judgment . . . . [W]hen he, the Spirit of truth, is come, he will guide you into all truth: for he
shall not speak of himself; but whatsoever he shall hear, that shall he speak: and he will shew you
things to come.”).
73. Plaintiffs also have sincerely held religious beliefs that they shall receive all
answers to their questions through prayer and supplication, including for decisions governing their
medical health. See James 1:5 (KJV) (“If any of you lack wisdom, let him ask of God, that giveth
to all men liberally, and upbraideth not; and it shall be given him.”); Mark 11:24 (KJV) (“Therefore
I say unto you, What things soever ye desire, when ye pray, believe that ye receive them, and ye
shall have them.”); Philippians 4:6–7 (KJV) (“Be careful for nothing, but in everything by prayer
and supplication with thanksgiving let your request be made known to God. And the peace of God,
which passeth all understanding, shall keep your hearts and minds through Christ Jesus.”); 1 John
4:14–15 (KJV) (“And this is the confidence we have in him, that, if we ask anything according to
his will, he heareth us. And if we know that he hear us, whatsoever we ask, we know that we have
the petitions that we desired of him.”).
74. Through much prayer and reflection, Plaintiffs have sought wisdom, understanding,
and guidance on the proper decision to make concerning these COVID-19 vaccines, and Plaintiffs
have been convicted by the Holy Spirit in their beliefs that accepting any of the three currently
available vaccines is against the teachings of Scripture and would be a sin.
C. PLAINTIFFS’ WILLINGNESS TO COMPLY WITH ALTERNATIVE
SAFETY MEASURES.
75. Plaintiffs have offered, and are ready, willing, and able to comply with all
reasonable health and safety requirements to facilitate their religious exemption and
accommodation from the COVID-19 Vaccine Mandate.
22
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 23 of 59 PageID #: 23
76. Plaintiffs have all informed their respective employers that they are willing to wear
facial coverings, submit to reasonable testing and reporting requirements, monitor symptoms, and
otherwise comply with reasonable conditions that were good enough to permit them to do their
jobs for the last 18 months with no questions asked.
77. In fact, last year the State said Plaintiffs were heroes because of their willingness
to abide by the same conditions and requirements that Plaintiffs are willing to abide by now.
78. In fact, Defendant Shah and the MCDC continues to say that facial coverings are
one of the most effective ways to prevent COVID-19. In its Face Covering FAQs page, the MCDC
states:
How does wearing a face covering prevent the spread of COVID-19?
COVID-19 is an airborne virus that most commonly spreads between people who
are in close contact with one another. It spreads through respiratory droplets or
small particles, such as those in aerosols, produced when an infected person coughs,
sneezes, sings, talks, or breathes. Because it helps contain respiratory droplets,
wearing a face covering has been proven to be one of the most significant,
effective, and easiest ways to reduce the spread of COVID-19.
COVID-19 Response, Face Covering FAQs (July 29, 2021),
https://www.maine.gov/covid19/faqs/face-coverings (emphasis added).
79. In fact, the MCDC still recommends that vaccinated individuals wear a mask in
public settings. And the reason for this is simple,
A preliminary study has shown that in the case of a breakthrough infection, the
Delta variant is able to grow in the noses of vaccinated people to the same degree
as if they were not vaccinated at all. The virus that grows is just as infectious as
that in unvaccinated people, meaning vaccinated people can transmit the virus and
infect others.
National Geographic, Evidence mounts that people with breakthrough infections can spread Delta
easily (Aug. 20, 2021), https://www.nationalgeographic.com/science/article/evidence-mounts-
23
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 24 of 59 PageID #: 24
that-people-with-breakthrough-infections-can-spread-delta-easily (last visited Aug. 23, 2021)
(emphasis added).
80. Masking and testing protocols remain sufficient to prevent the spread of COVID-19
among healthcare workers, and constitute a reasonable alternative to vaccination as an
accommodation of sincerely held religious beliefs.
81. In fact, the United States District Court for the Western District of Louisiana just
issued a temporary restraining order against a medical school for the school’s failure to grant
religious exemptions when reasonable accommodations were available (such as masking, testing,
etc.) and mandatory vaccination was not the least restrictive means of achieving the school’s
interest in protecting the school’s student body. See Magliulo v. Edward Via College of
Osteopathic Medicine, No. 3:21-CV-2304, 2021 WL 36799227 (W.D. La. Aug. 17, 2021).
D. DEFENDANTS’ RESPONSES CLAIMING FEDERAL LAW IS
IRRELEVANT IN MAINE.
82. Consistent with her sincerely held religious beliefs, Jane Doe 1 submitted to her
employer, Defendant MaineHealth, a request for a religious exemption from the Governor’s
COVID-19 Vaccine Mandate.
83. On August 17, 2021, MaineHealth denied Jane Doe 1’s request for a religious
exemption and accommodation. (A true and correct copy of the communications between
MaineHealth and Jane Doe 1 is attached hereto as EXHIBIT B and incorporated herein.)
84. In its response, MaineHealth stated:
Please be advised that due to the addition of the COVID-19 vaccine to Maine’s
Healthcare Worker Immunization law announced by the governor in a press
conference on 8/12/21, we are no longer able to consider religious exemptions
for those who work in the state of Maine. This also includes those of you who
submitting [sic] influenza exemptions as well. The State of Maine now requires
all healthcare workers to be fully vaccinated by October 1st, which means you are
24
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 25 of 59 PageID #: 25
two weeks beyond the completion of a COVID-19 vaccination series. (i.e. Both
doses of the mRNA vaccine, or the single dose of J & J) as of that date.
You submitted a religious exemption, your request is unable to be evaluated due to
a change in the law. Your options are to receive vaccination or provide
documentation for a medical exemption to meet current requirements for continued
employment.
(Exhibit B at 2 (bold emphasis original).)
85. On August 20, 2021, after receiving her first denial from MaineHealth, Jane Doe 1
responded to MaineHealth, stating:
My request for an exemption was made under federal law, including Title VII of the Civil
Rights [Act] of 1964. The Constitution provides that federal law is supreme over state law,
and Maine cannot abolish the protections of federal law. You may be interested in this
press release from Liberty Counsel, and the demand letter they have sent to Governor Mills
on this issue (which is linked in the press release): https://lc.org/newsroom/details/081821-
maine-governor-must-honor-religious-exemptions-for-shot-mandate. Regardless of what
the Governor chooses to do, Franklin Memorial has a legal obligation under federal law to
consider and grant my proper request for a religious exemption. Please let me know
promptly if you will do so.
(Exhibit B at 1.)
86. That same day, MaineHealth responded to Jane Doe 1 stating that federal law does
not supersede state law or the Governor’s COVID-19 Vaccine Mandate and that MaineHealth
would not be following federal law on the issue.
87. Specifically, MaineHealth stated:
Although I cannot give legal guidance to employees, I can share MaineHealth’s view
that federal law does not supersede state law in this instance. The EEOC is clear in its
guidance that employers need only provide religious accommodations when doing so does
not impose an undue hardship on operations. Requiring MaineHealth to violate state law
by granting unrecognized exemptions would impose such a hardship. As such, we are not
able to grant a request for a religious exemption from the state mandated vaccine.
(Exhibit B at 1 (emphasis added).)
88. Plaintiff Jane Doe 2 submitted to her employer, Genesis Healthcare, a request for a
religious exemption and accommodation from the Governor’s COVID-19 Vaccine Mandate. After
25
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 26 of 59 PageID #: 26
reviewing Jane Doe 2’s submission, which articulated her sincerely held religious beliefs, Genesis
Healthcare sent Jane Doe 2 a cursory response stating that her religious beliefs did not qualify for
an exemption from the vaccine mandate. Plaintiff Jane Doe 2 was given until August 23 to
become vaccinated, and when her request for a religious objection and accommodation was
denied, Jane Doe 2 was terminated from her employment.
89. Plaintiff Jane Doe 3 submitted a request to her employer, Defendant Northern Light
Health Foundation, seeking an exemption and accommodation from the Governor’s COVID-19
Vaccine Mandate. Northern Light responded to Jane Doe 3, denying her request and stating that
the Governor’s COVID-19 Vaccine Mandate does not permit exemptions or accommodations for
sincerely held religious beliefs. (A true and correct copy of Northern Light’s denial of Jane Doe
3’s request for a religious exemption and accommodation is attached hereto as EXHIBIT C and
incorporated herein.)
90. Specifically, Northern Light informed Jane Doe 3 that her request for a religious
exemption could not be granted because Maine law and the Governor do not permit “non-medical
exemptions,” and stated, “the only exemptions that may be made to this requirement are medical
exemptions supported by a licensed physician, nurse practitioner, or physician assistant.” (Exhibit
C at 1.)
91. Northern Light therefore ignored federal law on the basis that the Governor has
removed any exemptions for sincerely held religious beliefs.
92. On August 19, 2021, Jane Doe 5 submitted a request to her employer, Defendant
MaineGeneral Health, stating that she has sincerely held religious objections to the COVID-19
vaccines and requesting an exemption and accommodation from the Governor’s COVID-19
Vaccine Mandate. MaineGeneral responded to Jane Doe 5, stating that no religious exemptions
26
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 27 of 59 PageID #: 27
were permitted under the Governor’s mandate and that her request for a religious exemption and
accommodation was denied. (A true and correct copy of MaineGeneral’s denial of Jane Doe 5’s
request for a religious exemption is attached hereto as EXHIBIT D and incorporated herein.)
93. Specifically, MaineGeneral stated:
MaineGeneral Health must comply with Governor’s Mill’s [sic] COVID-19
vaccination mandate for all health care employees. All MaineGeneral employees
will have to be vaccinated against COVID-19 by Oct. 1 unless they have a medical
exemption. The mandate also states that only medical exemptions are allowed,
no religious exemptions are allowed.
(Exhibit D at 1 (emphasis added).)
94. Thus, MaineGeneral has made it abundantly clear to its employees that religious
exemptions are not available because of the Governor’s Mandate. But, if its initial denials left any
room for doubt, its follow-up response to Jane Doe 5 put all doubt to rest: “Allowing for a
religious exemption would be a violation of the state mandate issued by Governor Mills. So,
unfortunately, it is not an option for us.” (Exhibit D at 2.)
95. The responses from Defendants MaineHealth, Genesis Healthcare, Northern Light
Health Foundation, and MaineGeneral Health have been virtually identical for all other Plaintiffs
as well, indicating that the various Defendants were not permitted by the Governor’s COVID-19
Vaccine Mandate to allow for (or even consider) an exemption and accommodation for sincerely
held religious beliefs.
E. DEFENDANTS ADMIT THAT OTHER, NON-RELIGIOUS EXEMPTIONS
ARE AVAILABLE.
96. Defendants’ responses to Plaintiffs’ requests for exemption and accommodation for
their sincerely held religious beliefs confirm that Maine is, indeed, willing to grant other
exemptions from the Governor’s COVID-19 Vaccine Mandate but have relegated religious
exemption requests to constitutional orphan status.
27
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 28 of 59 PageID #: 28
97. In its response to Jane Doe 1, Defendant MaineHealth has indicated it is perfectly
willing to accept and grant medical exemptions but will not allow religious exemptions.
Specifically, it told Jane Doe 1:
You submitted a religious exemption, your request is unable to be evaluated due to
a change in the law. Your options are to receive vaccination or provide
documentation for a medical exemption to meet current requirements for continued
employment.
(Exhibit B at 2.)
98. Thus, while MaineHealth says it will consider and grant the preferred medical
exemptions, it will not even consider the constitutionally orphaned religious exemption
requests.
99. To make matters even more clear, MaineHealth subsequently informed Jane Doe 1
that she was permitted to seek any other exemption, except a religious one: “If you seek an
accommodation other than a religious exemption from the state mandated vaccine, please let us
know.” (Exhibit B at 1 (emphasis added).)
100. Defendant Northern Light gave a similar response to Jane Doe 3, indicating that
only medical exemptions would be considered or approved. Specifically, it stated that “the only
exemptions that may be made to this requirement are medical exemptions” and that all Northern
Light employees must comply with the Governor’s COVID-19 Vaccine Mandate “except in the
case of an approved medical exemption.” (Exhibit C at 1.)
101. Defendant MaineGeneral issued a similar response to Jane Doe 5, stating that all
healthcare workers must comply with the Governor’s COVID-19 Vaccine Mandate “unless they
have a medical exemption,” and that the Governor’s “mandate states that only medical exemptions
are allowed, no religious exemptions are allowed.” (Exhibit D at 1.)
28
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 29 of 59 PageID #: 29
102. The Governor, through her COVID-19 Vaccine Mandate, has created a two-tiered
system of exemptions, and placed religious beliefs and those who hold them in a class less
favorable than other exemptions that Defendants are perfectly willing to accept.
103. Under the Governor’s scheme of creating a disfavored class of religious
exemptions, Defendants are not even willing to consider religious exemptions, much less grant
them to those who have sincerely held religious objections to the COVID-19 vaccines.
F. IRREPARABLE HARM SUFFERED BY PLAINTIFFS.
104. Because Jane Doe 1’s request for an exemption and accommodation of her
sincerely held religious beliefs has been denied by MaineHealth, Jane Doe 1 faces the
unconscionable choice of accepting a vaccine that conflicts with her religious beliefs or losing her
job. Unless Jane Doe 1 immediately violates her conscience and sincere religious beliefs by
beginning the Governor’s mandatory COVID-19 vaccine process, she will be terminated from her
employment on October 1.
105. Jane Doe 2’s employer, Genesis Healthcare, mandated that she receive the vaccine
by August 23, even though the Governor did not require compliance until October 1. Jane Doe 2
was informed that her religious beliefs would not be accommodated because religious exemptions
were not available in Maine. Jane Doe 2 was informed that her employment was terminated on
August 23 at 11:59 p.m.
106. Because Jane Doe 3’s request for an exemption and accommodation of her
sincerely held religious beliefs has been denied by Northern Light, Jane Doe 3 faces the
unconscionable choice of accepting a vaccine that conflicts with her religious beliefs or losing her
job. Unless Jane Doe 3 immediately violates her conscience and sincere religious beliefs by
29
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 30 of 59 PageID #: 30
beginning the Governor’s mandatory COVID-19 vaccine process, she will be terminated from her
employment on October 1.
107. Because Jane Doe 4’s request for an exemption and accommodation of her
sincerely held religious beliefs has been denied by Northern Light, Jane Doe 4 faces the
unconscionable choice of accepting a vaccine that conflicts with her religious beliefs or losing her
job. Unless Jane Doe 4 immediately violates her conscience and sincere religious beliefs by
beginning the Governor’s mandatory COVID-19 vaccine process, she will be terminated from her
employment on October 1.
108. Because Jane Doe 5’s request for an exemption and accommodation of her
sincerely held religious beliefs has been denied by MaineGeneral, Jane Doe 5 faces the
unconscionable choice of accepting a vaccine that conflicts with her religious beliefs or losing her
job. Unless Jane Doe 5 immediately violates her conscience and sincere religious beliefs by
beginning the Governor’s mandatory COVID-19 vaccine process, she will be terminated from her
employment on October 1.
109. Because John Doe 2’s request for an exemption and accommodation of his
sincerely held religious beliefs has been denied by Genesis Healthcare, John Doe 2 faces the
unconscionable choice of accepting a vaccine that conflicts with his religious beliefs or losing his
job. Unless John Doe 2 immediately violates his conscience and sincere religious beliefs by
beginning the Governor’s mandatory COVID-19 vaccine process, he will be terminated from her
employment on October 1.
110. Because John Doe 3’s request for an exemption and accommodation of his
sincerely held religious beliefs has been denied by Northern Light, John Doe 3 faces the
unconscionable choice of accepting a vaccine that conflicts with his religious beliefs or losing his
30
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 31 of 59 PageID #: 31
job. Unless John Doe 3 immediately violates his conscience and sincere religious beliefs by
beginning the Governor’s mandatory COVID-19 vaccine process, he will be terminated from her
employment on October 1.
111. Because of the Governor’s COVID-19 Vaccine Mandate, John Doe 1 faces the
unconscionable choice of violating his own sincerely held religious beliefs and accepting the
Governor’s mandatory vaccine or potentially losing his practice and business license for failure to
comply.
112. Because of the Governor’s COVID-19 Vaccine Mandate, John Doe 1 also faces the
unconscionable choice of refusing to grant his employees’ requests for exemptions and
accommodation from the Governor’s COVID-19 Vaccine Mandate or losing his practice and his
business license.
113. Because of the Governor’s COVID-19 Vaccine Mandate, Jane Doe 6 is faced with
the unconscionable choice of receiving a vaccine to which she has sincerely held religious
objections and keeping her job or losing her job and source of income.
114. As a result of the Governor’s COVID-19 Vaccine Mandate, Plaintiffs have suffered
and are suffering irreparable injury by being prohibited from engaging in their constitutionally and
statutorily protected rights to the free exercise of their sincerely held religious beliefs.
115. As a result of the Governor’s COVID-19 Vaccine Mandate, Plaintiffs have suffered
and are suffering irreparable injury by being forced to choose between maintaining the ability to
feed their families and the free exercise of their sincerely held religious beliefs.
116. As a result of the Governor’s COVID-19 Vaccine Mandate, Plaintiffs have suffered
and are suffering irreparable injury by being stripped of their rights to equal protection of the law
and being subjected to disfavored class status in Maine.
31
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 32 of 59 PageID #: 32
G. PLAINTIFFS’ ATTEMPTS TO SECURE RELIEF PRIOR TO SEEKING A
TRO AND PRELIMINARY INJUNCTION.
117. On August 18, 2021, Plaintiffs’ counsel sent the Governor, Director Shah, and
Commissioner Lambrew a letter informing them that their COVID-19 Vaccine Mandate, on its
own, and in its interpretation and application by others deprives Plaintiffs of their rights to request
a sincerely held religious exemption and accommodation under federal law. (A true and correct
copy of the Letter sent to the Governor, Director, and Commissioner is attached hereto as
EXHIBIT E and incorporated herein.)
118. Plaintiffs requested that the Governor withdraw her unlawful directives and
publicly announce that any interpretation of her mandate to deprive Plaintiffs and all healthcare
workers in Maine of their right to request and receive an exemption and accommodation for their
sincerely held religious objections to the mandatory COVID-19 vaccine was unlawful and
impermissible.
119. Plaintiffs requested the response and the public announcement from the Governor
prior to August 20, 2021, as that was the given deadline for compliance with the vaccine mandate
for those individuals choosing a particular vaccine and because some of Defendants were
demanding that their employees receive the first dose of a vaccine by that date.
120. Plaintiffs’ counsel requested a response informing counsel that the Governor’s
directives, and the interpretation of the Governor’s COVID-19 Vaccine Mandate to deprive
Plaintiffs of their federal rights were impermissible, and that the Governor would permit Plaintiffs
and other healthcare workers with sincere religious objections to the vaccine to request and receive
reasonable accommodation to the mandate.
121. Neither Governor Mills, Director Shah, nor Commissioner Lambrew responded to
Plaintiffs’ counsel, nor announced that federal law would continue to apply in Maine, nor provided
32
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 33 of 59 PageID #: 33
any information to healthcare employers in Maine that federal law required Defendants to accept
and permit their healthcare employees to request and receive religious exemptions and
accommodation to the COVID-19 Vaccine Mandate.
COUNT I—VIOLATION OF THE FREE EXERCISE CLAUSE OF THE FIRST
AMENDMENT TO THE UNITED STATES CONSTITUTION.
(All Plaintiffs v. Government Defendants)
122. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1-121
above as if fully set forth herein.
123. The Free Exercise Clause of the First Amendment to the United States Constitution,
as applied to the states by the Fourteenth Amendment, prohibits the State from abridging Plaintiffs’
rights to free exercise of religion.
124. Plaintiffs have sincerely held religious beliefs that Scripture is the infallible,
inerrant word of the Lord Jesus Christ, and that they are to follow its teachings.
125. Plaintiffs reallege the discussion of their sincerely held religious beliefs (supra
Section B) as if fully set forth herein.
126. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, targets
Plaintiffs’ sincerely held religious beliefs by prohibiting Plaintiffs from seeking and receiving
exemption and accommodation for their sincerely held religious beliefs against the COVID-19
vaccine.
127. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied,
impermissibly burdens Plaintiffs’ sincerely held religious beliefs, compels Plaintiffs to either
change those beliefs or act in contradiction to them, and forces Plaintiffs to choose between the
teachings and requirements of their sincerely held religious beliefs in the commands of Scripture
and the State’s imposed value system.
33
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 34 of 59 PageID #: 34
128. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, places
Plaintiffs in an irresolvable conflict between compliance with the mandate and their sincerely held
religious beliefs.
129. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, puts
substantial pressure on Plaintiffs to violate their sincerely held religious beliefs or face loss of their
ability to feed their families.
130. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, is neither
neutral nor generally applicable.
131. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied,
specifically targets Plaintiffs’ religious beliefs for disparate and discriminatory treatment.
132. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, creates a
system of individualized exemptions for preferred exemption requests while discriminating against
requests for exemption and accommodation based on sincerely held religious beliefs.
133. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied,
constitutes a religious gerrymander by unconstitutionally orphaning exemption and
accommodation requests based solely on sincerely held religious beliefs of healthcare workers in
Maine while permitting the more favored medical exemptions to be granted.
134. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied,
constitutes a substantial burden on Plaintiffs’ exercise of their sincerely held religious beliefs.
135. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, fails to
accommodate Plaintiffs’ sincerely held religious beliefs.
34
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 35 of 59 PageID #: 35
136. There is no legitimate, rational, or compelling interest in the Governor’s COVID-19
Vaccine Mandate’s exclusion of exemptions and accommodations for sincerely held religious
beliefs.
137. The Governor’s COVID-19 Vaccine Mandate is not the least restrictive means of
achieving an otherwise permissible government interest.
138. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, has
caused, is causing, and will continue to cause irreparable harm and actual and undue hardship on
Plaintiffs’ sincerely held religious beliefs.
139. Plaintiffs have no adequate remedy at law to protect the continuing deprivation of
their most cherished constitutional liberties and sincerely held religious beliefs.
WHEREFORE, Plaintiffs respectfully pray for relief against Defendants as hereinafter set
forth in their prayer for relief.
COUNT II—DEFENDANTS’ WILLFUL DISREGARD OF FEDERAL PROTECTIONS
VIOLATES THE SUPREMACY CLAUSE OF THE UNITED STATES CONSTITUTION
BY ATTEMPTING TO MAKE MAINE LAW SUPERSEDE FEDERAL LAW
(All Plaintiffs v. All Defendants)
140. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1-121
above as if fully set forth herein.
141. The Supremacy Clause provides:
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.
U.S. Const. Art. VI, cl. 22 (emphasis added).
142. “When federal law forbids an action that state law requires, the state law is
without effect.” Mutual Pharm. Co., Inc. v. Bartlett, 570 U.S. 472, 486 (2013) (emphasis added).
35
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 36 of 59 PageID #: 36
143. Simply put, “It is a familiar and well-established principle that the Supremacy
Clause . . . invalidates state laws that interfere with, or are contrary to, federal law. Under
the Supremacy Clause . . . state law is nullified to the extent that it actually conflicts with
federal law.” Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 712-13 (1985)
(emphasis added) (cleaned up).
144. By claiming that the protections of Title VII are inapplicable in the State of Maine,
which all Defendants have either explicitly or tacitly stated, Defendants are running roughshod
over the Supremacy Clause and appointing themselves independent of the protections of federal
law.
145. As demonstrated by Defendant MaineHealth’s response to Jane Doe 1,
MaineHealth believes that “federal law does not supersede state law in this instance” because
it believes granting the religious exemptions required by Title VII would “[r]equir[e] MaineHealth
to violate state law.” (Exhibit B at 1 (emphasis added).)
146. Similarly, in its response to Jane Doe 5, MaineGeneral explicitly stated that
“[a]llowing for a religious exemption would be a violation of the state mandate issued by
Governor Mills.” (Exhibit C at 2 (emphasis added).)
147. Further, MaineGeneral noted that the Governor’s “mandate also states that . . . no
religious exemptions are allowed.” (Exhibit C at 1.)
148. Thus, all Defendants have purported to remove the availability of religious
exemptions and accommodations within the State of Maine, have ignored Title VII’s commands
that employers provide reasonable accommodations to individuals with sincerely held religious
beliefs, and have claimed that the Governor’s COVID-19 Vaccine Mandate prohibits employers
in Maine from even considering a religious exemption or accommodation request.
36
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 37 of 59 PageID #: 37
149. By purporting to place itself outside of the protections of Title VII and the First
Amendment, Maine and each individual Defendant have violated the most basic premise that
“federal law is as much the law of the several States as are the laws passed by their
legislatures.” Haywood v. Drown, 556 U.S. 729, 734 (2009) (emphasis added).
150. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, has
caused, is causing, and will continue to cause irreparable harm and actual and undue hardship on
Plaintiffs’ sincerely held religious beliefs.
151. Plaintiffs have no adequate remedy at law for the continuing deprivation of their
most cherished constitutional liberties and sincerely held religious beliefs.
WHEREFORE, Plaintiffs respectfully pray for relief against Defendants as hereinafter set
forth in their prayer for relief.
COUNT III—VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION
(All Plaintiffs v. Government Defendants)
152. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1-121
above as if fully set forth herein.
153. The Fourteenth Amendment to the United States Constitution guarantees Plaintiffs
the right to equal protection under the law.
154. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, is an
unconstitutional abridgment of Plaintiffs’ right to equal protection under the law, is not neutral,
and specifically targets Plaintiffs’ sincerely held religious beliefs for discriminatory and unequal
treatment.
155. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, is an
unconstitutional abridgement of Plaintiffs’ right to equal protection because it permits the State to
37
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 38 of 59 PageID #: 38
treat Plaintiffs differently from other similarly situated healthcare workers on the basis of
Plaintiffs’ sincerely held religious beliefs.
156. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, singles
out Plaintiffs for selective treatment based upon their sincerely held religious objections to the
COVID-19 vaccines.
157. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, is
intended to inhibit and punish the exercise of Plaintiffs sincerely held religious beliefs and
objections to the COVID-19 vaccines.
158. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, creates a
system of classes and categories that permit the Governor to accommodate the exemptions of some
healthcare workers while denying consideration of those individuals requesting religious
exemptions to the COVID-19 Vaccine Mandate.
159. By removing statutorily required religious accommodations from consideration in
Maine, the Governor has created and singled out for disparate treatment a specific class of
healthcare employees (i.e., religious objectors to COVID-19 vaccinations) as compared to other
similarly situated healthcare workers (i.e., those with medical exemption requests).
160. There is no rational, legitimate, or compelling interest in the Governor’s COVID-19
Vaccine Mandate’s application of different standards to the similarly situated field of healthcare
workers.
161. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied,
discriminates between religion and nonreligion by allowing certain, nonreligious exemptions to
the COVID-19 Vaccine Mandate while prohibiting religious exemptions to the same mandate for
the same similarly situated field of healthcare workers.
38
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 39 of 59 PageID #: 39
162. The Governor’s COVID-19 Vaccine Mandate and the MCDC’s removal of
religious exemptions for healthcare workers in Maine, on their face and as applied, are each a
“status-based enactment divorced from any factual context” and “a classification of persons
undertaken for its own sake,” which “the Equal Protection Clause does not permit.” Romer v.
Evans, 517 U.S. 620, 635 (1996).
163. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, “identifies
persons by a single trait [religious beliefs] and then denies them protections across the board.” Id.
at 633.
164. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, along with
the MCDC’s removal of religious exemptions from immunizations—while keeping medical
exemptions as perfectly acceptable in the healthcare field—results in a “disqualification of a class
of persons from the right to seek specific protection [for their religious beliefs].” Id.
165. “A law declaring that in general it shall be more difficult for one group of citizens
than for all others to seek [an exemption from the COVID-19 Vaccine Mandate] is itself a denial
of equal protection of the laws in the most literal sense.” Id. The Governor’s COVID-19 Vaccine
Mandate, on its face and as applied, and the MCDC’s removal of religious exemptions for
healthcare workers, are each such a law.
166. The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, has
caused, is causing, and will continue to cause irreparable harm and actual and undue hardship on
Plaintiffs’ sincerely held religious beliefs.
167. Plaintiffs have no adequate remedy at law to protect the continuing deprivation of
their most cherished constitutional liberties and sincerely held religious beliefs
39
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 40 of 59 PageID #: 40
WHEREFORE, Plaintiffs respectfully pray for relief against Defendants as hereinafter set
forth in their prayer for relief.
COUNT IV—VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964,
42 U.S.C. § 2000e, et seq.
(All Plaintiffs v. Private Employer Defendants)
168. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1-121
above as if fully set forth herein.
169. Title VII prohibits discrimination against employees on the basis of their religion.
42 U.S.C. §2000e-2(a) (“It shall be an unlawful employment practice for an employer . . . to fail
or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment because of such
individual’s race, color, religion, sex, or national origin . . . .”).
170. Title VII defines the protected category of religion to include “all aspects of
religious observance and practice, as well as belief.” 42 U.S.C. § 2000e(j). Moreover, as the EEOC
has made clear, Title VII’s protections also extend nonreligious beliefs if related to morality,
ultimate ideas about life, purpose, and death. See EEOC, Questions and Answers: Religious
Discrimination in the Workplace (June 7, 2008), https://www.eeoc.gov/laws/guidance/questions-
and-answers-religious-discrimination-workplace (“Title VII’s protections also extend to those
who are discriminated against or need accommodation because they profess no religious beliefs.”);
(Id. (“Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as
non-theistic ‘moral or ethical beliefs as to what is right and wrong which are sincerely held with
the strength of traditional religious views.’ Although courts generally resolve doubts about
particular beliefs in favor of finding that they are religious, beliefs are not protected merely because
40
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 41 of 59 PageID #: 41
they are strongly held. Rather, religion typically concerns ‘ultimate ideas’ about ‘life, purpose, and
death.’”).)
171. Each of Defendants MaineHealth, Genesis Healthcare, Northern Light, and
MaineGeneral Health is an employer within the meaning of Title VII and employs more than 15
employees.
172. By refusing to even consider, much less grant, any religious accommodation or
exemption to the Governor’s COVID-19 Vaccine Mandate, Defendants have discriminated against
Plaintiffs’ sincerely held religious beliefs with respect to the terms, conditions, and privileges of
employment.
173. By threatening to fire Plaintiffs unless they violate their sincerely held religious
beliefs and comply with the Governor’s COVID-19 Vaccine Mandate, Defendants have
unlawfully discriminated against Plaintiffs by discharging them or constructively discharging them
for the exercise of their religious beliefs.
174. Each Plaintiff has a bona fide and sincerely held religious belief against the
COVID-19 vaccines, as outlined above.
175. Plaintiffs’ sincerely held religious beliefs conflict with Defendants’ policies in
collusion with the Governor to impose the Governor’s COVID-19 Vaccine Mandate and to
withhold from Plaintiffs any consideration of sincerely held religious objections.
176. Plaintiffs have all raised their sincerely held religious beliefs with their respective
Defendant employers, have brought their objections and their desire for a religious accommodation
and exemption to the Defendants’ attention, and have requested a religious exemption and
accommodation from the COVID-19 Vaccine Mandate.
41
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 42 of 59 PageID #: 42
177. Defendants termination, threatened termination, denial of benefits, and other
adverse employment actions against Plaintiffs are the result of Plaintiffs’ exercise of their sincerely
held religious beliefs.
178. Defendants’ refusal to consider or grant Plaintiffs’ requests for accommodation and
exemption from the Governor’s COVID-19 Vaccine Mandate has caused, is causing, and will
continue to cause irreparable harm and actual and undue hardship on Plaintiffs’ sincerely held
religious beliefs.
179. Plaintiffs have no adequate remedy at law for the continuing deprivation of their
most cherished constitutional liberties and sincerely held religious beliefs.
WHEREFORE, Plaintiffs respectfully pray for relief against Defendants as hereinafter set
forth in their prayer for relief.
COUNT V—DEFENDANTS HAVE ENGAGED IN AN UNLAWFUL CONSPIRACY TO
VIOLATE PLAINTIFFS’ CIVIL RIGHTS IN VIOLATION OF 42 U.S.C. § 1985
(All Plaintiffs v. All Defendants)
180. Plaintiffs hereby reallege and adopt each and every allegation in paragraphs 1-121
above as if fully set forth herein.
181. Section 1985 provides a cause of action against public and private defendants who
unlawfully conspire to deprive an individual of his constitutionally protected liberties. 42 U.S.C.
§ 1985(3) (“If two or more persons in any State or Territory conspire . . . for the purpose of
depriving, either directly or indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws“).
182. The elements of the claim of conspiracy to violate civil rights under § 1985 include
(1) a conspiracy, (2) a conspiratorial purpose to deprive the plaintiff of the equal protection of the
laws or of a constitutionally protected liberty, (3) an overt act in furtherance of the conspiracy, and
42
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 43 of 59 PageID #: 43
(4) a deprivation of a constitutionally protected right. See Parker v. Landry, 935 F.3d 9, 17–18 (1st
Cir. 2019).
183. The Governor’s COVID-19 Vaccine Mandate, combined with the Defendant
employers’ agreements to enforce its provisions and revoke any potential for a religious exemption
for healthcare workers in Maine, constitutes a conspiracy to violate Plaintiffs’ civil and
constitutional rights.
184. The Governor, Director Shah, and Commissioner Lambrew have all reached an
agreement with the Defendant employers to deprive all healthcare workers in Maine with any
exemption or accommodation for the exercise of their sincerely held religious beliefs.
185. MaineHealth’s agreement with the Governor to deprive Plaintiffs of their
constitutionally protected liberties is evidenced in its denial of Jane Doe 1’s request for a religious
exemption and accommodation. Specifically, its statement that MaineHealth is “no longer able to
consider religious exemptions for those who work in the state of Maine.” (Exhibit B at 2
(emphasis added).) By agreeing to refuse to even consider its employees’ requests for religious
exemption and accommodation, MaineHealth has reached an express or tacit agreement to deprive
Plaintiffs of their constitutionally protected rights to equal protection and religious exercise.
186. Even if MaineHealth’s denials of its employees’ requests for religious exemptions
was somehow insufficient to demonstrate an agreement, the Governor’s own Official Statement
concerning the imposition of the COVID-19 Vaccine Mandate shows that MaineHealth entered
into an agreement with the Governor by noting the Governor’s mandate was “welcomed by . . .
MaineHealth” and its CEO’s statement that it “applauds Gov. Mills’ decision to make COVID-19
vaccination a requirement for the state’s health care workforce for the same reasons our
organization chose to require vaccination for all its care team members.” (Exhibit A). See also
43
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 44 of 59 PageID #: 44
Office of Governor Janet Mills, Mills Administration Requires Health Care Workers To Be Fully
Vaccinated Against COVID-19 By October 1 (Aug. 12, 2021),
https://www.maine.gov/governor/mills/news/mills-administration-requires-health-care-workers-
be-fully-vaccinated-against-COVID-19-october (italics original).
187. Defendant Northern Light’s explanation of its agreement with the Governor to
deprive Plaintiffs of their rights to seek and receive an accommodation of their sincerely held
religious beliefs was even more explicit: “Governor Mills' decision to require vaccination of health
care workers is another example of close alignment between the government and the health care
community.” (Exhibit A) See also Office of Governor Janet Mills, Mills Administration Requires
Health Care Workers To Be Fully Vaccinated Against COVID-19 By October 1 (Aug. 12, 2021),
https://www.maine.gov/governor/mills/news/mills-administration-requires-health-care-workers-
be-fully-vaccinated-against-COVID-19-october (italics original).
188. MaineGeneral’s agreement with the Governor to deprive its employees of their
constitutionally protected exercise of religious beliefs is plainly evidenced by its statements to Jane
Doe 5 that it was not permitted to even consider a request for a religious exemption because of the
Governor’s mandate. (Exhibit D at 1-2.).
189. The Governor and Defendant employers have reached an express or tacit agreement
to mandate COVID-19 vaccines for their employees while explicitly agreeing to deprive them of
their right to request and receive an accommodation and exemption for their sincerely held
religious beliefs.
190. The purpose behind the Governor’s COVID-19 Vaccine Mandate, the MCDC’s
removal of the option for a religious exemption in the State of Maine, and all Defendants’
agreement to blatantly ignore federal law’s requirement that employees be provided with a
44
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 45 of 59 PageID #: 45
religious exemption and accommodation for sincerely held religious beliefs is based upon a
conspiratorial purpose to deprive Plaintiffs of their rights to the exercise of their religious beliefs
and equal protection.
191. Defendants’ conspiratorial agreement has been made express by their stating that
no religious exemptions would be permitted and by informing Plaintiff employees of the legally
ridiculous position that Title VII does not apply in Maine and that federal law does not supersede
Maine law when it comes to the Governor’s COVID-19 Vaccine Mandate.
192. The Governor has engaged in an overt act in furtherance of the conspiracy to
deprive Plaintiffs of their civil rights by mandating that all healthcare workers receive a mandatory
COVID-19 vaccine and by failing to recognize that federal law provides each of these employees
with the option to request and receive a religious exemption and accommodation from the
COVID-19 Vaccine Mandate.
193. Defendant employers have each engaged in an overt act in furtherance of the
conspiracy to deprive Plaintiffs of their civil rights by refusing to consider, evaluate, or accept any
Plaintiff’s request for a religious exemption and accommodation from the COVID-19 Vaccine
Mandate.
194. By denying Plaintiffs their requested religious exemption and accommodation and
threatening termination and discharge from employment because of the exercise of their sincerely
held religious beliefs, Defendants’ conspiracy has resulted in a deprivation of Plaintiffs’
constitutionally protected right to free exercise of religion.
195. By denying Plaintiffs their requested religious exemption and accommodation and
threatening termination and discharge from employment because of the exercise of their sincerely
held religious beliefs while at the same time granting and accepting the preferred category and
45
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 46 of 59 PageID #: 46
class of medical exemptions for similarly situated healthcare workers, Defendants’ conspiracy has
resulted in a deprivation of Plaintiffs’ constitutionally protected right to equal protection of the
laws under the Fourteenth Amendment.
196. Defendants’ refusal to consider or grant Plaintiffs’ requests for accommodation and
exemption from the Governor’s COVID-19 Vaccine Mandate has caused, is causing, and will
continue to cause irreparable harm and actual and undue hardship on Plaintiffs’ sincerely held
religious beliefs.
197. Plaintiffs have no adequate remedy at law for the continuing deprivation of their
most cherished constitutional liberties and sincerely held religious beliefs.
WHEREFORE, Plaintiffs respectfully pray for relief against Defendants as hereinafter set
forth in their prayer for relief.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray for relief as follows:
A. That the Court issue a temporary restraining order restraining and enjoining
Defendants, all of their officers, agents, employees, and attorneys, and all other persons in active
concert or participation with them, from enforcing, threatening to enforce, attempting to enforce,
or otherwise requiring compliance with the Governor’s COVID-19 Vaccine Mandate such that:
i. Defendant Governor Mills will not enforce her unconstitutional mandate
that John Doe 1 require his employees to receive a COVID-19 vaccine and
refuse to provide a religious exemption or accommodation for such
employees in violation of John Doe 1’s and his employees’ sincerely held
religious beliefs;
46
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 47 of 59 PageID #: 47
ii. Defendants immediately cease in their refusal to consider, evaluate, or
accept Plaintiffs’ requests for exemption and accommodation for their
sincerely held religious beliefs;
iii. Defendants will immediately grant Plaintiffs’ requests for religious
exemption and accommodation from the Governor’s COVID-19 Vaccine
Mandate, provided that Plaintiffs agree to abide by reasonable
accommodation provisions such as masking, testing, symptom monitoring,
and reporting;
iv. Defendants will immediately cease threatening to discharge and terminate
Plaintiffs from their employment for failure to accept a COVID-19 vaccine
that violates their sincerely held religious beliefs; and
v. Defendants will immediately cease proclaiming that federal law does not
apply in Maine or otherwise declining Plaintiffs’ requests for religious
exemption on the basis that Title VII does not apply in the State of Maine;
B. That the Court issue a preliminary injunction pending trial, and a permanent
injunction upon judgment, restraining and enjoining Defendants, all of their officers, agents,
employees, and attorneys, and all other persons in active concert or participation with them, from
enforcing, threatening to enforce, attempting to enforce, or otherwise requiring compliance with
the Governor’s COVID-19 Vaccine Mandate such that:
i. Defendant Governor Mills will not enforce her unconstitutional mandate
that John Doe 1 require his employees to receive a COVID-19 vaccine and
refuse to provide a religious exemption or accommodation for such
47
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 48 of 59 PageID #: 48
employees in violation of John Doe 1’s and his employees’ sincerely held
religious beliefs;
ii. Defendants immediately cease in their refusal to consider, evaluate, or
accept Plaintiffs’ requests for exemption and accommodation for their
sincerely held religious beliefs;
iii. Defendants will immediately grant Plaintiffs’ requests for religious
exemption and accommodation from the Governor’s COVID-19 Vaccine
Mandate, provided that Plaintiffs agree to abide by reasonable
accommodation provisions such as masking, testing, symptom monitoring,
and reporting;
iv. Defendants will immediately cease threatening to discharge and terminate
Plaintiffs from their employment for failure to accept a COVID-19 vaccine
that violates their sincerely held religious beliefs; and
v. Defendants will immediately cease proclaiming that federal law does not
apply in Maine or otherwise declining Plaintiffs’ requests for religious
exemption on the basis that Title VII does not apply in the State of Maine;
C. That this Court render a declaratory judgment declaring that the Governor’s
COVID-19 Vaccine Mandate, both on its face and as applied by Defendants is illegal and unlawful
in that it purports to remove federal civil rights and constitutional protections from healthcare
workers in Maine, and further declaring that
i. in imposing a mandatory COVID-19 vaccine without any provision for
exemption or accommodation for sincerely held religious beliefs, the
Governor has violated the First Amendment to the United States
48
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 49 of 59 PageID #: 49
Constitution by imposing a substantial burden on Plaintiffs’ sincerely held
religious beliefs while granting exemptions to similarly situated healthcare
workers with medical exemptions to the COVID-19 Vaccine Mandate;
ii. by refusing to consider or evaluate Plaintiffs’ requests for religious
exemption and accommodation, Defendants have violated Title VII and
other federal protections for Plaintiffs in Maine and have blatantly ignored
the Supremacy Clause’s mandate that federal protections for religious
objectors in Maine supersede and apply with full force in Maine;
iii. by terminating, threatening to terminate, or otherwise taking adverse
employment action against Plaintiffs on the basis of their sincerely held
religious beliefs, Defendants have violated Title VII of the Civil Rights Act
of 1964;
iv. that by creating a class system in which religious objectors in Maine are
disparately and discriminatorily denied the option of receiving an
exemption or accommodation while simultaneously allowing and granting
exemptions for other nonreligious reasons, Defendant Governor Mills has
violated Plaintiffs’ rights to equal protection of the law; and
v. that by entering into an agreement to unlawfully deprive Plaintiffs of their
right to request and receive a religious exemption and accommodation from
the Governor’s COVID-19 Vaccine Mandate, Defendants have conspired
to violate Plaintiffs’ civil rights to free exercise of religious beliefs and
equal protection of the law;
49
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 50 of 59 PageID #: 50
D. That this Court award Plaintiffs damages in an amount to be proven at trial,
including damages for adverse employment action resulting in lost wages and other compensatory
damages, and further including nominal damages in the absence of proof of damages;
E. That this Court adjudge, decree, and declare the rights and other legal obligations
and relations within the subject matter here in controversy so that such declaration shall have the
full force and effect of final judgment;
F. That this Court retain jurisdiction over the matter for the purposes of enforcing the
Court’s order;
G. That this Court award Plaintiffs the reasonable costs and expenses of this action,
including a reasonable attorney’s fee, in accordance with 42 U.S.C. § 1988; and
H. That this Court grant such other and further relief as the Court deems equitable and
just under the circumstances.
Respectfully submitted,
/s/ Stephen C. Whiting /s/ Daniel J. Schmid
Stephen C. Whiting Mathew D. Staver*
ME Bar No. 559 Horatio G. Mihet*
The Whiting Law Firm Roger K. Gannam*
75 Pearl Street, Suite 207 Daniel J. Schmid*
Portland, ME 04101 LIBERTY COUNSEL
(207) 780-0681 P.O. Box 540774
Email: steve@whitinglawfirm.com Orlando, FL 32854
Phone: (407) 875-1776
Facsimile: (407) 875-0770
Email: court@lc.org
hmihet@lc.org
rgannam@lc.org
dschmid@lc.org
*Applications for Admission pro hac vice pending
Attorneys for Plaintiffs
50
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 51 of 59 PageID #: 51
VERIFICATION
I, Jane Doe 1, am over the age of eighteen years and a Plaintiff in this action. The statements
and allegations that pertain to me or which I make in this VERIFIED COMPLAINT are true and
correct, and based upon my personal knowledge (unless otherwise indicated). If called upon to
testify to their truthfulness, I would and could do so competently. I declare under penalty of
perjury, under the laws of the United States and the State of Maine, that the foregoing statements
are true and correct to the best of my knowledge.
Dated: August 24, 2021
/s/ Jane Doe 1
Jane Doe 1
(Original Signature of Jane Doe 1 retained by Counsel)
51
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 52 of 59 PageID #: 52
VERIFICATION
I, Jane Doe 2, am over the age of eighteen years and a Plaintiff in this action. The statements
and allegations that pertain to me or which I make in this VERIFIED COMPLAINT are true and
correct, and based upon my personal knowledge (unless otherwise indicated). If called upon to
testify to their truthfulness, I would and could do so competently. I declare under penalty of
perjury, under the laws of the United States and the State of Maine, that the foregoing statements
are true and correct to the best of my knowledge.
Dated: August 24, 2021
/s/ Jane Doe 2
Jane Doe 2
(Original Signature of Jane Doe 2 retained by Counsel)
52
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 53 of 59 PageID #: 53
VERIFICATION
I, Jane Doe 3, am over the age of eighteen years and a Plaintiff in this action. The statements
and allegations that pertain to me or which I make in this VERIFIED COMPLAINT are true and
correct, and based upon my personal knowledge (unless otherwise indicated). If called upon to
testify to their truthfulness, I would and could do so competently. I declare under penalty of
perjury, under the laws of the United States and the State of Maine, that the foregoing statements
are true and correct to the best of my knowledge.
Dated: August 24, 2021
/s/ Jane Doe 3
Jane Doe 3
(Original Signature of Jane Doe 3 retained by Counsel)
53
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 54 of 59 PageID #: 54
VERIFICATION
I, Jane Doe 4, am over the age of eighteen years and a Plaintiff in this action. The statements
and allegations that pertain to me or which I make in this VERIFIED COMPLAINT are true and
correct, and based upon my personal knowledge (unless otherwise indicated). If called upon to
testify to their truthfulness, I would and could do so competently. I declare under penalty of
perjury, under the laws of the United States and the State of Maine, that the foregoing statements
are true and correct to the best of my knowledge.
Dated: August 24, 2021
/s/ Jane Doe 4
Jane Doe 4
(Original Signature of Jane Doe 4 retained by Counsel)
54
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 55 of 59 PageID #: 55
VERIFICATION
I, Jane Doe 5, am over the age of eighteen years and a Plaintiff in this action. The statements
and allegations that pertain to me or which I make in this VERIFIED COMPLAINT are true and
correct, and based upon my personal knowledge (unless otherwise indicated). If called upon to
testify to their truthfulness, I would and could do so competently. I declare under penalty of
perjury, under the laws of the United States and the State of Maine, that the foregoing statements
are true and correct to the best of my knowledge.
Dated: August 24, 2021
/s/ Jane Doe 5
Jane Doe 5
(Original Signature of Jane Doe 5 retained by Counsel)
55
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 56 of 59 PageID #: 56
VERIFICATION
I, Jane Doe 6, am over the age of eighteen years and a Plaintiff in this action. The statements
and allegations that pertain to me or which I make in this VERIFIED COMPLAINT are true and
correct, and based upon my personal knowledge (unless otherwise indicated). If called upon to
testify to their truthfulness, I would and could do so competently. I declare under penalty of
perjury, under the laws of the United States and the State of Maine, that the foregoing statements
are true and correct to the best of my knowledge.
Dated: August 24, 2021
/s/ Jane Doe 6
Jane Doe 6
(Original Signature of Jane Doe 6 retained by Counsel)
56
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 57 of 59 PageID #: 57
VERIFICATION
I, John Doe 1, am over the age of eighteen years and a Plaintiff in this action. The
statements and allegations that pertain to me or which I make in this VERIFIED COMPLAINT
are true and correct, and based upon my personal knowledge (unless otherwise indicated). If called
upon to testify to their truthfulness, I would and could do so competently. I declare under penalty
of perjury, under the laws of the United States and the State of Maine, that the foregoing statements
are true and correct to the best of my knowledge.
Dated: August 24, 2021
/s/ John Doe 1
John Doe 1
(Original Signature of John Doe 1 retained by Counsel)
57
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 58 of 59 PageID #: 58
VERIFICATION
I, John Doe 2, am over the age of eighteen years and a Plaintiff in this action. The
statements and allegations that pertain to me or which I make in this VERIFIED COMPLAINT
are true and correct, and based upon my personal knowledge (unless otherwise indicated). If called
upon to testify to their truthfulness, I would and could do so competently. I declare under penalty
of perjury, under the laws of the United States and the State of Maine, that the foregoing statements
are true and correct to the best of my knowledge.
Dated: August 24, 2021
/s/ John Doe 2
John Doe 2
(Original Signature of John Doe 2 retained by Counsel)
58
Case 1:21-cv-00242-JDL Document 1 Filed 08/25/21 Page 59 of 59 PageID #: 59
VERIFICATION
I, John Doe 3, am over the age of eighteen years and a Plaintiff in this action. The
statements and allegations that pertain to me or which I make in this VERIFIED COMPLAINT
are true and correct, and based upon my personal knowledge (unless otherwise indicated). If called
upon to testify to their truthfulness, I would and could do so competently. I declare under penalty
of perjury, under the laws of the United States and the State of Maine, that the foregoing statements
are true and correct to the best of my knowledge.
Dated: August 24, 2021
/s/ John Doe 3
John Doe 3
(Original Signature of John Doe 3 retained by Counsel)
59
8/25/2021 CasmsladdinicratOh R¢bvireh Dikaltr Dac woresnd Th ob Fuyhedch&ded? Sdadst Cage sBpbctober aojad dtGo@Oior Janet T. ...
Agencies | Online Services | Help | | Search Maine.gov Select Language V
Contact | Newsroom
Search Office [ SEARCH ]
Home About ¥ Newsroom ¥ Official Documents ¥ Contact ¥
Home => Mills Administration Requires Health Care Workers To Be Fully Vaccinated Against COVID-19 By October 1
Mills Administration Requires Health Care Workers
To Be Fully Vaccinated Against COVID-19 By
October 1
August 12, 2021
Governor Mills’ decision garners support from a broad coalition of health care providers across Maine
Augusta, MAINE - The Mills Administration announced today that it will require health care workers in Maine
to be vaccinated against COVID-19 to protect the health and lives of Maine people, safeguard Maine's health
care capacity, and limit the spread of the virus.
The Maine Department of Health and Human Services (DHHS) and Center for Disease Control and Prevention
(Maine CDC), utilizing their authority under existing law to require certain vaccinations of people who work in
health care settings, issued an emergency rule that will require health care workers to be fully vaccinated by
October 1, 2021. This timeframe provides health care workers the next five weeks to receive their needed
shots.
Health care workers are defined as including any individual employed by a hospital, multi-level health care
facility, home health agency, nursing facility, residential care facility, and intermediate care facility for
individuals with intellectual disabilities that is licensed by the State of Maine. The emergency rule also requires
those employed by emergency medical service organizations or dental practices to be vaccinated for COVID-
19.
With this move, Maine becomes one of the most aggressive states in the nation in requiring vaccination of
health care workers, both in terms of the scope of health care workers and timeframe for vaccination.
‘Vaccinations are the best tool we have to protect the lives and livelihoods of Maine people and to curb this
pandemic,” said Governor Mills. “Health care workers perform a critical role in protecting the health of
Maine people, and it is imperative that they take every precaution against this dangerous virus, especially
given the threat of the highly transmissible Delta variant. With this requirement, we are protecting health
care workers, their patients, including our most vulnerable, and our health care capacity. | continue to
strongly urge all Maine people to get vaccinated because doing so may save your life, the life of a family
member or friend, or the life of a child not yet eligible for a vaccine.”
“Maine’s hospitals, clinics, nursing facilities and other health providers are on the front lines of the fight
against COVID-19,” said Jeanne Lambrew, Commissioner of the Maine Department of Health and
Human Services. “We thank those who have already taken this critical step for themselves, their patients
and their communities, but with the arrival of the Delta variant in Maine, it is more important than ever to
protect these workers through vaccination.”
“Scientific data show that vaccination is our best protection against all strains of the virus that causes
COVID-19,” said Nirav D. Shah, Director of the Maine Center for Disease Control and Prevention.
“Given the elevated risk posed by the Delta variant, this is a prudent step in preventing COVID-19 from
putting more Maine people at risk, especially those who care for others.”
https:/Awww.maine.gov/governor/mills/news/mills-administration-requires-health-care-workers-be-fully-vaccinated-against-covid-19-october 1/3
8/25/2021 CasmsladdinicratOh Rébvirel Dikaltr Dae woresnd Th ob Fur hedchBded? Sdadst Cage IB Pbctober? aojadd BHGoGihor Janet T. ...
The State of Maine has long required the immunization of employees of designated health care facilities to
reduce the risk of exposure to, and possible transmission of, vaccine-preventable diseases. These
immunizations include measles, Mumps, rubella, chickenpox, hepatitis B, and influenza. This existing rule has
been amended to include the COVID-19 vaccine. The organizations to which this requirement applies must
ensure that each employee is vaccinated, with this requirement being enforced as a condition of the facilities’
licensure.
According to a mandated survey of health care settings by the Department of Health and Human Services,
80.3 percent of staff at hospitals, 73 percent of staff at nursing facilities, and 68.2 percent of staff at
intermediate care facilities for individuals with intellectual disabilities have been fully vaccinated against
COVID-19.
The move was welcomed by a broad coalition of health care providers across Maine, including Maine Hospital
Association, Maine Medical Association, Maine Primary Care Association, and Maine Health Care Association,
along with the state’s two largest health systems, MaineHealth and Northern Light Health.
“Maine's hospitals and health systems are beyond thankful for the Governor's leadership on this issue,” said
Steven Michaud, President of the Maine Hospital Association. “A statewide health care worker vaccine
mandate protects our patients and workforce and is critically needed as we continue our battle with this
pandemic. Patient safety is our number one priority and this initiative is the very best way to provide that
protection. This will save lives, keep caregivers healthy, and keep our hospitals safe as we care for all of our
patients, those with COVID-19 and those without.”
“Over 95 percent of physicians and nearly 200 million Americans have received a vaccine. It's clear they are
safe and highly effective,” said Karen Saylor, MD, President of the Maine Medical Association. “The
Delta variant is much more aggressive and currently overwhelming hospitals across the country.
Unvaccinated health care workers put sick patients and facility residents at risk. This is the next step in our
state’s responsible path of keeping us ready with the staff and space needed to care for all Mainers at risk of
severe illness or death.”
“Maine’s long term care providers continue to provide high quality care to residents,” said Angela
Westhoff, president and CEO of the Maine Health Care Association. “Our residents are among the most
vulnerable when it comes to this virus. While we have made significant progress in increasing staff
vaccination rates through education campaigns, there is more work to be done to combat the highly
contagious Delta variant. MHCA supports this move to protect the health and wellbeing of our residents.
COVID-19 vaccines have dramatically reduced COVID-19 cases and the severity of illness in long term care
settings, and this is the best tool we have to fight the pandemic.”
"We know that every health care organization is undergoing careful consideration to ensure the health and
safety of patients and staff,” said Tim Dentry, President and CEO of Northern Light Health. “At Northern
Light Health we feel strongly that vaccinations are our best path forward and away from the dangers of the
COVID-19 virus. Governor Mills' decision to require vaccination of health care workers is another example of
close alignment between the government and the health care community. There is a reason why Maine is
among the best states for COVID care and vaccination. With the new Delta variant, we cannot stray from our
course."
“MaineHealth applauds Gov. Mills’ decision to make COVID-19 vaccination a requirement for the state's
health care workforce for the same reasons our organization chose to require vaccination for all of its care
team members,"said Dr. Andrew Mueller, MD, CEO of MaineHealth. “The vaccines are proven safe and
effective, and vaccination remains the best way for us to protect our patients and communities from this
terrible pandemic.”
“The Maine Primary Care Association supports the state’s decision to mandate the COVID-19 vaccine for all
health care employees,” said Darcy Shargo, CEO of the Maine Primary Care Association. “We believe
that everyone who is able to get the vaccine should, including the community health centers’ workforce,
which has been so vital to our state’s pandemic response. This step is so important to getting us to the next
level of response as a state, and it has the potential to get us closer to the lives we led before COVID.”
“EMS clinicians across the state are an integral component of the health care system and continue to be
critical to the response to the COVID-19 pandemic,” said Sam Hurley, Maine State EMS Director. “As
health care professionals, it makes sense that we should do everything in our power to protect the health
https:/Awww.maine.gov/governor/mills/news/mills-administration-requires-health-care-workers-be-fully-vaccinated-against-covid-19-october 2/3
8/25/2021 CastmsladdinicratOh R¢bvireh Dikaltr Dac woresnd Th ob Fut hedchaded? Sdadst Cage sBWbctober aojadd BHGoGrhor Janet T. ...
and safety of ourselves, our families, our colleagues, and our patients, including receiving the COVID-19
vaccine.”
“The Maine Dental Association and its members have been proactive about COVID-19 vaccinations and
keeping their practices as safe as possible for patients,” said Dr. Heather Keeling, President of the Maine
Dental Association’s Board of Directors. “That will continue with the Governor's new requirement, which
we fully support. Recent data from the American Dental Association has shown dental offices are one of the
safest health care facilities during this pandemic. Just like our fellow front line health care professionals, we
are ready to continue to do our part to prevent infection.”
Maine continues to make nation-leading progress with its vaccination effort. On Monday, Governor Mills
announced that 80 percent of adults in Maine have received at least one dose of a COVID-19 vaccine, achieving
another milestone for the state as it continues to confront an increase in cases associated with the Delta
variant. According to the U.S. Centers for Disease Control and Prevention (U.S. CDC), 80.5 percent of adults
(18+) in Maine have received a COVID-19 vaccination, one of eight states in the nation to reach the milestone.
Maine is the third best state in the nation in the percentage of residents who are fully vaccinated, with more
than 64 percent of all residents - including children under 12 who are not yet eligible for a vaccine - fully
vaccinated against COVID-19. Maine also continues to make progress in vaccinating younger people, with
more than 50 percent of youth ages 12 to 19 being fully vaccinated.
COVID-19 vaccines are available at no charge at sites across the state. For information on getting a vaccine,
please visit Maine.gov/covid19/vaccines or call the Community Vaccination Line at 1-888-445-4111.
Despite having the oldest median age population in the country, Maine, adjusted for population, ranks fourth
lowest in the nation in hospitalizations over the last two weeks, third lowest in total number of cases, and
fourth lowest in number of deaths from COVID-19, according to the Maine Department of Health and Human
Services.
https:/Awww.maine.gov/governor/mills/news/mills-administration-requires-health-care-workers-be-fully-vaccinated-against-covid-19-october
3/3
Case 1:21-cv-00242-JDL Document 1-2 Filed 08/25/21 Page 2 of 3 PageID #: 64
Please be advised that due to the addition of the Covid-19 vaccine to Maine’s Healthcare Worker
Immunization law announced by the governor in a press conference on 8/12/21, we are no longer able
to consider religious exemptions for those who work in the state of Maine. This also includes those
of you who submitting influenza exemptions as well. The State of Maine now requires all healthcare
workers to be fully vaccinated by October 1st, which means you are two weeks beyond the completion
of a Covid-19 vaccination series. (i.e. Both doses of the mRNA vaccine, or the single dose of J & J) as of
that date.
You submitted a religious exemption, your request is unable to be evaluated due to a change in the
law. Your options are to receive vaccination or provide documentation for a medical exemption to meet
current requirements for continued employment. Please be aware of the deadlines to meet the State
Mandate:
September 17th is the deadline written in the State’s emergency rules for the final dose of vaccine.
If September 17th is the date for their final dose, then:
August 20th is the latest date for a first shot of Moderna;
August 27th is the latest date for the first shot of Pfizer;
September 17th is the latest date for the first and only shot of J&J/Janssen vaccine.
There is an educational session about Covid-19 vaccination today at noon on Zoom.
Tuesday, August 17 – 12:00-1:00 P.M. | Zoom link
with Dora Mills, MD, MPH, and Cheryl Liechty, MD
The EUA information about each vaccine is available on this weblink Vaccine Resources
(mainehealth.org) as is information about how to schedule vaccination.
Please know, we understand this change is upsetting to you. If you have questions, please talk to your
primary care provider on what vaccination may be best for you.
Thank you,
Susan L. Guerin-Staples MSB, FACHE
Senior Director
Employee Health Services
MaineHealth
CONFIDENTIALITY NOTICE: This email message, including any attachments, is for the use of the intended
recipient(s) only and may contain information that is privileged, confidential, and prohibited from
unauthorized disclosure under applicable law. If you are not the intended recipient of this message, any
dissemination, distribution, or copying of this message is strictly prohibited. If you received this message
in error, please notify the sender by reply email and destroy all copies of the original message and
attachments.
CONFIDENTIALITY NOTICE: This email message, including any attachments, is for the use of the intended
recipient(s) only and may contain information that is privileged, confidential, and prohibited from
Case 1:21-cv-00242-JDL Document 1-2 Filed 08/25/21 Page 3 of 3 PageID #: 65
unauthorized disclosure under applicable law. If you are not the intended recipient of this message, any
dissemination, distribution, or copying of this message is strictly prohibited. If you received this message
in error, please notify the sender by reply email and destroy all copies of the original message and
attachments.
Case 1:21-cv-00242-JDL Document 1-5 Filed 08/25/21 Page 1 of 10 PageID #: 69
DISTRICT OF COLUMBIA FLORIDA VIRGINIA
109 Second Street NE PO Box 540774 PO Box 11108
Washington, DC 20002 Orlando, FL 32854 Lynchburg, VA 24506
Tel 202-289-1776 Tel 407-875-1776 Tel 407-875-1776
Fax 407-875-0770 Fax 407-875-0770 Fax 407-875-0770
LC.org Liberty@LC.org
REPLY TO FLORIDA
August 18, 2021
VIA EMAIL
Janet T. Mills Nirav D. Shah
Governor Director, Department of Health and Human Services
State of Maine Maine Center for Disease Control and Prevention
1 State House Station 11 State House Station
Augusta, ME 04333 Augusta, ME 04333
Phone: 207-875-3531 Phone: (207) 287-5177
Janet.T.Mills@maine.gov nirav.shah@maine.gov
Jeanne M. Lambrew
Commissioner
Department of Health and Human Services
11 State House Station
Augusta, ME 04333
Phone: (207) 287-4223
Email: jeanne.m.lambrew@maine.gov
RE: Unlawful Attempt to Remove Religious Exemptions and Accommodations from
State’s Mandatory COVID-19 Vaccine Policy
THIS IS A LEGAL DEMAND LETTER. YOUR PROMPT RESPONSE IS
REQUIRED ON OR BEFORE FRIDAY, AUGUST 20, 2021 AT 5:00 P.M. TO
AVOID A LAWSUIT
Dear Governor Mills, Director Shah, and Commissioner Lambrew:
As you know, Liberty Counsel is a national non-profit litigation, education and public
policy organization with an emphasis on First Amendment liberties, and a particular focus on
religious freedom and the sanctity of human life. Liberty Counsel has engaged in extensive
litigation in the last year regarding civil rights violations ostensibly justified by “COVID-19,” and
has had great success holding both government entities and private actors accountable. See, e.g.,
Harvest Rock Church, Inc. v. Newsom, 141 S. Ct. 1289 ( 2021) (permanent injunction granted and
$1,350,000 in attorney’s fees awarded in Harvest Rock Church, Inc. v. Newsom, No. 2:20-cv-
06414, C.D. Cal., May 17, 2021); Harvest Rock Church, Inc. v. Newsom, 141 S. Ct. 889 (2020);
Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d 341 (7th Cir. 2020); Maryville Baptist
Case 1:21-cv-00242-JDL Document 1-5 Filed 08/25/21 Page 2 of 10 PageID #: 70
Religious Exemption and Accommodations from Mandatory Covid-19 Vaccine Policy
August 18, 2021
Page 2
Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020). In fact, as you are aware, Liberty Counsel
is currently representing Calvary Chapel of Bangor in its lawsuit against Governor Mills for her
unconstitutional, unconscionable, and discriminatory restrictions on religious worship services.
I write on behalf of numerous doctors, nurses, medical professionals, and other health care
workers who have been forced to choose between the exercise of their sincerely held religious
beliefs and feeding their families. No individual in Maine should be forced into such an
unconscionable decision. On August 12, 2021, Governor Mills announced that Maine will now
require health care workers to accept or receive one of the three, currently available COVID-19
vaccines in order to remain employed in the healthcare profession. See Office of Governor Janet
Mills, Mills Administration Requires Health Care Workers To Be Fully Vaccinated Against
COVID-19 By October 1 (Aug. 12, 2021), https://www.maine.gov/governor/mills/news/mills-
administration-requires-health-care-workers-be-fully-vaccinated-against-covid-19-october (last
visited Aug. 17, 2021) ((hereinafter “Mandatory COVID-19 Vaccination Policy”). The Mandatory
COVID-19 Vaccination Policy defines health care workers to include “any individual employed
by a hospital, multi-level health care facility, home health agency, nursing facility, residential care
facility, and intermediate care facility for individuals with intellectual disabilities that is licensed
by the State of Maine.” Id. In addition, the Mandatory COVID-19 Vaccination Policy includes
emergency medical service organizations and dentists to accept or receive the mandatory shot.
These health care workers that are now subject to a mandatory vaccine policy were also
ostensibly and unlawfully stripped of their rights to request a religious exemption and
accommodation from the Mandatory COVID-19 Vaccination Policy. On April 14, 2021, Dr. Shah
and the Maine Center for Disease Control and Prevention (“MCDC”) amended 10-144 C.M.R. Ch.
264 to eliminate a religious exemption from the Policy. The only exemptions Maine now lists as
available to health care workers are those outlined din 22 M.R.S. §802(4-B), which purports to
exempt only those individuals for whom an immunization is medically inadvisable and who
provide a written statement from a doctor documenting the need for an exemption. Under the prior
version of the rule, 10-144 C.M.R. Ch. 264, §3-B provided that a health care worker could be
exempt from mandatory immunizations if the “employee states in writing an opposition to
immunization because of a sincerely held religious belief.” Id. In fact, as acknowledged by MCDC,
Maine purported to remove the religious exemption to mandatory immunizations only earlier this
month. See Division of Disease Surveillance, Maine Vaccine Exemption Law Change 2021,
https://www.maine.gov/dhhs/mecdc/infectious-disease/immunization/maine-vaccine-exemption-
law-changes.shtml (last visited Aug. 17, 2021) (“The health care immunization law has removed
the allowance for philosophical and religious exemptions and has included influenza as a required
immunization.”).
It has been reported to us that, following the above developments and guidance from
Maine, a number of communications have taken place that purport to inform health care workers
in Maine that no religious exemptions should be submitted because health care workers are not
entitled to such exemptions for their sincerely held religious beliefs. In fact, the health care workers
Case 1:21-cv-00242-JDL Document 1-5 Filed 08/25/21 Page 3 of 10 PageID #: 71
Religious Exemption and Accommodations from Mandatory Covid-19 Vaccine Policy
August 18, 2021
Page 3
who have contacted us have been told by their employers, following Maine’s guidance, that
exemptions and accommodations for sincerely held religious objections to the COVID-19
Vaccination Policy will not be granted, or in some instances, even considered.
As you are undoubtedly aware, while Maine may choose not to provide certain
religious exemptions in its state statutory scheme under some circumstances, virtually every
employee in Maine – including the health care workers who have been subjected to the
Mandatory COVID-19 Vaccination Policy – are protected by Title VII of the Civil Rights
Act, which does provide for religious exemptions and accommodations, and mandates that
employers provide them.
Maine cannot override federal law, or the federal Constitution. Maine’s purported
guidance and attempts to remove federal protections and even religious exemptions available
under federal law is causing direct and irreparable harm.
We ask that you advise us and the public by close of business on this Friday, August
20, 2021, that Maine will honor all federal protections and entitlements to accommodation
for sincerely held religious beliefs. Your failure to timely and positively provide this
assurance will indicate to us that Maine is, in fact, continuing in its attempt to nullify and
override legal protections afforded to religious objectors under federal law and the United
States Constitution. In that event, we will proceed with an emergency legal action against
Maine and other entities to protect the fundamental rights of Maine’s citizenry.
A. Maine’s Attempt to Nullify, Override, Dissuade, Discourage, or Suppress
Requests for Religious Accommodations and Exemptions is Plainly
Inconsistent with Title VII; Denying Merited Religious Exemptions and
Accommodations Would Violate Title VII; and Maine is Not Permitted to
Inquire into Correctness of an Employee’s Sincerely Held Religious Beliefs.
As you are undoubtedly aware, Title VII of the Civil Rights Act prohibits every employer
in Maine from discriminating against its employees on the basis of their sincerely held religious
beliefs. See 42 U.S.C. §2000e-2(a) (“It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment
because of such individual’s race, color, religion, sex, or national origin”). See also EEOC v.
Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015) (same). And, health care workers who
are employed by the State of Maine itself are also afforded the same protection under Title
VII. See 42 U.S.C. §2000e(f); Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (noting that States are
also required to abide by Title VII’s mandates in relation to their employees). Title VII defines
“religion” as “all aspects of religious observance and practice, as well as belief.” 42 U.S.C.
§2000e(j). Put simply, an employer violates Title VII if it makes employment decisions related to
an employee based solely upon that individual’s sincerely held religious beliefs. Abercrombie &
Case 1:21-cv-00242-JDL Document 1-5 Filed 08/25/21 Page 4 of 10 PageID #: 72
Religious Exemption and Accommodations from Mandatory Covid-19 Vaccine Policy
August 18, 2021
Page 4
Fitch, 575 U.S. at 773 (“An employer may not make an applicant’s religious practices,
confirmed or otherwise, a factor in employment decisions.” (emphasis added)).
As you also must know, federal law and the United States’ Constitution are supreme
over any Maine statute or edict, and Maine cannot override, nullify, or violate federal law.
See U.S. Const. Art. VI, cl. 2 (“This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.” (emphasis added)). “This Court has long made clear that federal law is as
much the law of the several States as are the laws passed by their legislatures.” Haywood v.
Drown, 556 U.S. 729, 734 (2009) (emphasis added). In fact, as the Supreme Court has made clear,
It is a familiar and well-established principle that the Supremacy Clause . . .
invalidates state laws that interfere with, or are contrary to, federal law. Under
the Supremacy Clause . . . state law is nullified to the extent that it actually
conflicts with federal law.
Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 712-13 (1985) (emphasis added)
(cleaned up). Thus, as you are undoubtedly aware, Maine’s constant refrain to its health care
workers that there is no religious exemption to the Mandatory COVID-19 Vaccination Policy
is legally incorrect. Federal law provides protection for every health care worker in Maine
with a religious objection, and requires accommodation from such mandates. Maine simply
has no authority to override this federal law.
While there may be some who consider COVID-19 vaccines to be acceptable as a matter
of religious doctrine or belief, no employer in Maine – including the State – is permitted to
determine which religious adherent has a correct understanding of religious doctrine or whether a
health care worker’s sincerely held religious beliefs are shared broadly among members of her
faith. As the Supreme Court has recognized, an employee’s “religious beliefs need not be
acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment
protection.” Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981). See also Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (same). Additionally,
though membership in or adherence to the tenets of an organized religious is plainly sufficient to
provide protection for an individual’s sincerely held religious beliefs, it is not a necessary
precondition. See Frazee v. Ill. Dep’t of Emp. Sec., 489 U.S. 829, 834 (1989) (“Undoubtedly,
membership in an organized religious denomination, especially one with a specific tenet
forbidding members to work on Sunday, would simplify the problem of identifying sincerely
held religious beliefs, but we reject the notion that to claim the protection [for sincerely held
religious beliefs], one must be responding to the commands of a particular religious
organization.” (emphasis added)). See also Office of Foreign Assets Control v. Voices in the
Case 1:21-cv-00242-JDL Document 1-5 Filed 08/25/21 Page 5 of 10 PageID #: 73
Religious Exemption and Accommodations from Mandatory Covid-19 Vaccine Policy
August 18, 2021
Page 5
Wilderness, 329 F. Supp. 2d 71, 81 (D.D.C. 2004) (noting that the law provides protection for
“sincerely held religious beliefs,” “not just tenets of organized religion”).
In fact, the law provides protection for sincerely held religious beliefs even when some
members of the same religious organization, sect, or denomination disagree with the beliefs
espoused by the individual. That some individuals may have sincerely held religious beliefs that
differ from those espoused by health care providers with a sincere religious objection to the three
currently available COVID-19 vaccines is irrelevant to whether those sincerely held religious
beliefs are entitled to protection under Title VII. Indeed,
[i]ntrafaith differences of that kind are not uncommon among followers of a
particular creed, and the judicial process is singularly ill equipped to resolve
such differences . . . and the guarantee of free exercise is not limited to beliefs
which are shared by all of the members of a religious sect. Particularly in this
sensitive area, it is not within the judicial function and judicial competence to
inquire whether the petitioner or his fellow worker more correctly perceived
the commands of their common faith. Courts are not arbiters of scriptural
interpretation.”
450 U.S. at 715-16 (emphasis added).
Moreover, the denial of an employee’s request for a religious accommodation and
exemption based upon the views of other individuals who do not share their sincere religious
beliefs is unlawful. In fact, it is legally irrelevant what other individuals think or religiously
believe. Once an employee has articulated her sincerely held religious objections to acceptance or
receipt of the currently available COVID-19 vaccines, the proper inquiry is at its end.
Indisputably, all three of the currently available COVID-19 vaccines are produced by,
derived from, manufactured with, tested on, developed with, or otherwise connected to aborted
fetal cell lines. There is no question about the accuracy of this determination. The North Dakota
Department of Health, in its literature for those considering one of the three, currently available
COVID-19 vaccines, notes the following: “[t]he non-replicating viral vector vaccine produced by
Johnson & Johnson did require the use of fetal cell cultures, specifically PER.C6, in order to
produce and manufacture the vaccine.” See North Dakota Health, COVID-19 Vaccines & Fetal
Cell Lines (Apr. 20, 2021), available at
https://www.health.nd.gov/sites/www/files/documents/COVID%20Vaccine%20Page/COVID-
19_Vaccine_Fetal_Cell_Handout.pdf (bold added).
The Louisiana Department of Health likewise confirms that the Johnson & Johnson
COVID-19 vaccine, which used PER.C6 fetal cell line, “is a retinal cell line that was isolated from
a terminated fetus in 1985.” Louisiana Department of Public Health, You Have Questions, We
Have Answers: COVID-19 Vaccine FAQ (Dec. 12, 2020), available at
Case 1:21-cv-00242-JDL Document 1-5 Filed 08/25/21 Page 6 of 10 PageID #: 74
Religious Exemption and Accommodations from Mandatory Covid-19 Vaccine Policy
August 18, 2021
Page 6
https://ldh.la.gov/assets/oph/Center-PHCH/Center-PH/immunizations/You_Have_Qs_COVID-
19_Vaccine_FAQ.pdf (bold added).
The same is true of the Moderna and Pfizer/BioNTech mRNA vaccines. The Louisiana
Department of Health’s publications again confirm that aborted fetal cells lines were used in the
“proof of concept” phase of the development of their COVID-19 mRNA vaccines. Louisiana
Department of Public Health, You Have Questions, We Have Answers: COVID-19 Vaccine FAQ
(Dec. 12, 2020), available at https://ldh.la.gov/assets/oph/Center-PHCH/Center-
PH/immunizations/You_Have_Qs_COVID-19_Vaccine_FAQ.pdf. The North Dakota
Department of Health, in its handout literature on COVID-19 vaccines, notes: “[e]arly in the
development of mRNA vaccine technology, fetal cells were used for ‘proof of concept’ (to
demonstrate how a cell could take up mRNA and produce the SARS-CoV-2 spike protein)
or to characterize the SARS-CoV-2 spike protein.” See North Dakota Health, COVID-19
Vaccines & Fetal Cell Lines (Apr. 20, 2021), available at
https://www.health.nd.gov/sites/www/files/documents/COVID%20Vaccine%20Page/COVID-
19_Vaccine_Fetal_Cell_Handout.pdf (last visited Aug. 10, 2021) (emphasis added).
Because all three of the currently available COVID-19 vaccines are developed and
produced from, tested with, researched on, or otherwise connected with the aborted fetal cell lines
HEK-293 and PER.C6, the sincerely held religious beliefs of the employees we represent compel
them to abstain from accepting or injecting any of these products into their body, regardless of the
perceived benefit or rationale. Thus, while there may be some faith leaders and other adherents
whose understanding of Scripture is different, and who may be willing to accept one of the three
currently available COVID-19 vaccines despite their connection with aborted fetal cell lines,
official recognition of a sincerely held religious objection to acceptance or receipt of a vaccine that
is inextricably intertwined with aborted fetal cell lines is unnecessary to warrant protection.
In sum, denying a health care worker’s request for a religious accommodation based
upon the beliefs of others is unlawful, and refusing to grant a health care worker a religious
accommodation at all is plainly a violation of Title VII, regardless of the MCDC rule or any
other provision of Maine law.
B. The First Amendment to the United States Constitution Protects Maine
Healthcare Workers Employed by the State of Maine.
Further, all healthcare workers in the State of Maine that are employed by the State also
have protection for the exercise of their sincerely held religious beliefs under the First Amendment.
It is beyond cavil that government employees do not shed their constitutional rights upon entering
government employment. See Martin v. Lauer, 686 F.2d 24, 31(D.C. Cir. 1982) (“government
employees do not shed their first amendment rights on assuming public responsibilities”
(emphasis added)). Indeed, “people do not give up their free-exercise or free-speech rights
when they become government employees.” Warnock v. Archer, 380 F.3d 1076, 1082 (8th Cir.
Case 1:21-cv-00242-JDL Document 1-5 Filed 08/25/21 Page 7 of 10 PageID #: 75
Religious Exemption and Accommodations from Mandatory Covid-19 Vaccine Policy
August 18, 2021
Page 7
2004) (emphasis added). See also Bd. of Cnty. Comm’rs, Wabaunsee Cnty. v. Umbehr, 518 U.S.
668, 675 (1996) (“The First Amendment’s guarantee . . . protects government employees.”);
Putnam v. Regional Sch. Unit 50, No. 1:14-cv-154-JAW, 2015 WL 5440783, *14 (D. Me. Sept.
15, 2015) (“This guarantee applied to government employees as well, who should not ‘suffer
reprisal from a government official . . . because of the possible chilling effect against the free
exercise of constitutional rights.’” Quoting Rosaura Bldg. Corp. v. Mun. of Mayaguez, 778 F.3d
55, 66 (1st Cir. 2015)).
As the Supreme Court made clear last year, “even in a pandemic, the Constitution cannot
be put away and forgotten.” Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68
(2020) (emphasis added). Moreover, the Supreme Court has further noted that it will not “abandon
the field when government officials with experts in tow seek to infringe a constitutionally protected
liberty.” South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 718 (2021) (Gorsuch,
J.). Indeed, “[e]ven in times of crisis—perhaps especially in times of crisis—we have a duty to
hold governments to the Constitution.” Id. (emphasis added).
Every healthcare worker employed by the State of Maine has the First Amendment right
to the free exercise of their religion, including whether to accept a forcible injection of a vaccine.
Neither the flick of the Governor’s pen, nor a purported public health emergency cannot override
those cherished constitutional liberties.
C. Maine Law Prohibits Discrimination on the Basis of An Employee’s Sincerely
Held Religious Beliefs.
The Maine Human Rights Act also provides statutory protection for the health care workers
with sincerely held religious objections to the currently available COVID-19 vaccines. Indeed, the
Maine Human Rights Act states that “it is declared to be the policy of this State . . . to prevent
discrimination in employment, housing or access to public accommodations on account of race,
color, sex, sexual orientation, physical or mental disability, religion, ancestry or national origin.”
5 M.R.S.A. §4552 (emphasis added). Because of that explicit statement of Maine’s public policy,
the Maine Human Rights Act further provides that “[t]he opportunity for an individual to secure
employment without discrimination because of race, color, sex, sexual orientation or gender
identity, physical or mental disability, religion, age, ancestry , national origin or familial status is
recognized as and declared to be a civil right.” 5 M.R.S.A. §4571. And, as with Title VII, “[i]t is
unlawful employment discrimination, in violation of this Act . . . For any employer to fail or
refuse to hire or otherwise discriminate against any applicant for employment because of . .
. religion.” 5 M.R.S.A. §4572(1) (emphasis added). The State, too, is subject to the provisions of
the Human Rights Act because it applies to any public or private entity. 5 M.R.S.A. §4553(1).
Because the health care workers we represent have a sincerely held religious objections to
the currently available COVID-19 vaccines and because they are unable to comply with Maine’s
Mandatory COVID-19 Vaccination Policy as it conflicts with their sincerely held religious beliefs,
Case 1:21-cv-00242-JDL Document 1-5 Filed 08/25/21 Page 8 of 10 PageID #: 76
Religious Exemption and Accommodations from Mandatory Covid-19 Vaccine Policy
August 18, 2021
Page 8
all employers in Maine – including the State – are mandated to accommodate these religious beliefs
under Maine law. As with Title VII (and the First Amendment for state employees) discussed
above, an employer’s failure to accommodate a health care worker’s sincerely held religious
objections to the COVID-19 vaccines is unlawful and discriminatory.
D. Maine Law Protects Every Individual’s Right to Refuse Unwanted Medical
Treatment.
Maine law provides a long-established common law right to all individuals to refuse
unwanted medical care. See In re Gardner, 534 A.2d 947, 951 (Me. 1987) (“we have continued to
recognize the validity of a battery analysis, with its focus on the patient’s right to be free from
nonconsensual invasions of his bodily integrity”); Id. (“Maine’s law of informed consent supports
the right of an individual to decline medical care.”); Downer v. Veilleux, 322 A.2d 82, 91 (Me.
1974) (“every competent adult has the right to forego treatment, or even cure, if it entails
what for him are intolerable consequences” (emphasis added)).
As the California Supreme Court noted,
Anglo American law starts with the premise of thorough-going self-determination.
It follows that each man is considered to be master of his own body, and he
may, if he be of sound mind, expressly prohibit the performance of lifesaving
surgery, or other medical treatment. A doctor might well believe that an
operation or form of treatment is desirable or necessary, but the law does not permit
him to substitute his own judgment for that of the patient by any form of artifice or
deception.
Thor v. Superior Ct., 855 P.2d 375, 381-82 (Cal. 1993) (emphasis added).
Put simply, “if the patient’s informed consent is to have any meaning at all, it must be
accorded respect even when it conflicts with the advice of the doctor or the values of the
medical profession as a whole.” Thor, 855 P.2d at 386. By mandating that all Maine health care
workers submit to one of the COVID-19 vaccines as a condition of retaining their ability to feed
their families and earn a living, Maine runs roughshod over this basic protection. If an employee
decides for herself that she desires to abstain from forcible injunction of a COVID-19 vaccine that
violates her sincerely held religious beliefs, that is her basic right. Put simply, “[t]he forcible
injection of medication into a nonconsenting person’s body represents a substantial
interference with that person’s liberty.” Washington v. Harper, 494 U.S. 210, 229 (1990)
(emphasis added). The Governor’s Mandatory COVID-19 Vaccination Policy blatantly ignores
this well-established principle of bodily integrity and personal autonomy.
Case 1:21-cv-00242-JDL Document 1-5 Filed 08/25/21 Page 9 of 10 PageID #: 77
Religious Exemption and Accommodations from Mandatory Covid-19 Vaccine Policy
August 18, 2021
Page 9
E. The Emergency Use Authorization Statute Prohibits Mandating the COVID-
19 Vaccine.
The United States Code provides that
subject to the provisions of this section, the Secretary (of the Department of
Health and Human Services) may authorize the introduction into interstate
commerce, during the effective period of a declaration under subsection (b), of a
drug, device, or biological product intended for use in an actual or potential
emergency (referred to in this section as an “emergency use.”
21 U.S.C. §360bbb-3(a)(1) (emphasis added) (“EUA Statute”). Part of the explicit statutory
conditions for an EUA under the EUA Statute, the statute mandates that all individuals to whom
the product approved for Emergency Use may be administered be given the option to accept or
refuse administration of the product. See 21 U.S.C. §360bbb-3(e)(1)(A)(ii)(III) (requiring that
“individual to whom the product is administered are informed . . . of the option to accept or
refuse administration of the product” (emphasis added). The only currently available COVID-
19 vaccines (Janssen/Johnson & Johnson, Moderna, and Pfizer/BioNTech) are only authorized for
use under the EUA Statute and have no general approval under the United States Code. Thus, the
administration of such vaccines cannot be mandatory under the plain text of the EUA Statute.
Even the statutorily required Fact Sheets for each of the EUA-approved COVID-19
vaccines demonstrate that individuals cannot be compelled to accept or receive the vaccine. See
Modern, FACT SHEET FOR RECEIPIENTS AND CAREGIVERS (June 24, 2021),
https://www.fda.gov/media/144638/download (“It is your choice to receive or not to receive the
Moderna COVID-19 Vaccine. Should you decide not to receive it, it will not change your
standard medical care.” (emphasis added)); Pfizer-BioNTech, FACT SHEET FOR RECIPIENT
AND CAREGIVERS (June 25, 2021), https://www.fda.gov/media/144414/download (“It is your
choice to receive or not to receive the Pfizer-BioNTech COVID-19 Vaccine. Should you
decide not to receive it, it will not change your standard medical care.” (emphasis added));
Janssen, FACT SHEET FOR RECIPIENTS AND CAREGIVERS (July 8, 2021),
https://www.fda.gov/media/146305/download (“It is your choice to receive or not to receive the
Janssen COVID-19 Vaccine. Should you decide not to receive it, it will not change your
standard medical care.” (emphasis added)).
Thus, under the EUA Statute and as recognized by the manufacturers of the currently
available COVID-19 vaccines, individuals have the option to accept or refuse administration of
the product, and it cannot be mandatory. Maine’s current policy ignores this statutory protection
and is therefore unlawful.
Case 1:21-cv-00242-JDL Document 1-5 Filed 08/25/21 Page 10 of 10 PageID #: 78
Religious Exemption and Accommodations from Mandatory Covid-19 Vaccine Policy
August 18, 2021
Page 10
CONCLUSION
We await your prompt confirmation, on or before close of business on this Friday,
August 20, 2021, that Maine will no longer purport to nullify or override the right of Maine
citizens to seek religious exemptions from vaccination requirements under federal and state
law. Absent this confirmation, we will understand that Maine is continuing in its attempt to
nullify and override legal protections afforded to religious objectors, and we will proceed
with an emergency legal action against Maine and other entities to protect the fundamental
rights of Maine’s citizenry. We will seek emergency injunctive relief and all other remedies
available under law.
Sincerely,
Daniel J. Schmid†
cc:
Christopher C. Taub, Chief Deputy Attorney General, State of Maine
† Licensed in Virginia
7
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 1 of 18 PageID #: 81
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
Bangor Division
JANE DOES 1–6, JOHN DOES 1–3, )
JACK DOES 1–1000, JOAN DOES 1–1000, )
)
Plaintiffs, )
v. ) Case No. ___________________
)
JANET T. MILLS, in her official capacity as )
Governor of the State of Maine, )
JEANNE M. LAMBREW, in her official capacity )
as Commissioner of the Maine Department of )
Health and Human Services, )
NIRAV D. SHAH, in his official capacity as )
Director of the Maine Center for Disease Control )
and Prevention, )
MAINEHEALTH, )
GENESIS HEALTHCARE OF MAINE, LLC, )
GENESIS HEALTHCARE, LLC, )
NORTHERN LIGHT HEALTH FOUNDATION, )
MAINEGENERAL HEALTH, )
)
Defendants. )
PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNTION WITH INCORPORATED MEMORANDUM OF LAW
Pursuant to Fed. R. Civ. P. 65 and L.R. 7, Plaintiffs, JANE DOES 1–6, JOHN DOES 1–3,
JACK DOES 1–1000, and JOAN DOES 1–1000, hereby move this Court for a temporary
restraining order (TRO) and preliminary injunction (PI) against Defendants, JANET T. MILLS, in
her official capacity as Governor of the State of Maine, JEANNE M. LAMBREW, in her official
capacity as Commissioner of the Maine Department of Health and Human Services, NIRAV D.
SHAH, in his official capacity as Director of the Maine Center for Disease Control and Prevention,
MAINEHEALTH, GENESIS HEALTHCARE OF MAINE, LLC, GENESIS HEALTHCARE,
LLC, NORTHERN LIGHT HEALTH FOUNDATION, and MAINEGENERAL HEALTH, as set
forth below and in Plaintiffs’ contemporaneously filed Verified Complaint. In the alternative,
1
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 2 of 18 PageID #: 82
should this Court deny Plaintiffs’ motion, Plaintiffs also move this Court for an injunction pending
appeal under Fed. R. App. P. 8.
MEMORANDUM OF LAW IN SUPPORT
To obtain a TRO or PI, Plaintiffs must demonstrate that they have a strong likelihood of
success on the merits, that they will suffer irreparable injury absent the order, that the balance of
the equities favors the order, and that the public interest is served by the Court’s issuing the order.
See Bl(a)ck Tea Soc’y v. Boston, 378 F.3d 8, 11 (1st Cir. 2004); Bourgoin v. Sebelius, 928 F. Supp.
2d 258, 267 (D. Me. 2013) (“The standard for granting a temporary restraining order is the same
as for a preliminary injunction.”). Plaintiffs easily satisfy each of these elements factually and
legally. (Plaintiffs hereby incorporate by reference the allegations of the Verified Complaint, filed
contemporaneously herewith, as their statement of facts in support of this motion.)
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIM
THAT DEFENDANTS MUST FOLLOW FEDERAL LAW AND GRANT
RELIGIOUS ACCOMMODATIONS AND EXEMPTIONS FROM THE
GOVERNOR’S COVID-19 VACCINE MANDATE.
A. Defendants’ Refusal to Recognize the Supremacy Clause’s Mandate That
State Law Align With Federal Law Is Plainly Unlawful.
As a matter of black letter law, federal law and the United States Constitution are supreme
over any contrary Maine statute, edict, or executive decree from the Governor, and Maine cannot
override, nullify, or violate federal law. See U.S. Const. Art. VI, cl. 2 (“This Constitution, and the
Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.”). In fact, it is an elementary principle of the Nation’s
founding charter that the laws of the federal government constitute the laws appliable in the states.
Haywood v. Drown, 556 U.S. 729, 734 (2009) (“This Court has long made clear that federal
2
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 3 of 18 PageID #: 83
law is as much the law of the several States as are the laws passed by their legislatures.”
(emphasis added)). For this Court and Defendants in this case, the Supremacy Clause “provides a
rule of decision for determining whether federal or state law applies in a particular situation,”
Kansas v. Garcia, 140 S. Ct. 791, 801 (2020), and where—as here—federal law “imposes
restrictions [and] confers rights on private actors,” and Maine law “imposes restrictions that
conflict with the federal law,” “the federal law takes precedence and the state law is preempted.”
Murphy v. NCAA, 138 S. Ct. 1461, 1480 (2018) (emphasis added). Indeed, “[i]t is a familiar and
well-established principle that the Supremacy Clause . . . invalidates state laws that interfere
with, or are contrary to, federal law. Under the Supremacy Clause . . . state law is nullified
to the extent that it actually conflicts with federal law.” Hillsborough Cnty. v. Automated Med.
Labs., Inc., 471 U.S. 707, 712–13 (1985) (emphasis added) (cleaned up).
Here, Defendants have purported to exclude themselves from the requirements and
mandates of federal law. There can be no dispute that Title VII of the Civil Rights Act prohibits
Defendants from discriminating against Plaintiffs on the basis of their sincerely held religious
beliefs. 42 U.S.C. § 2000e-2(a) (“It shall be an unlawful employment practice for an employer . .
. to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment
because of such individual’s . . . religion . . . .”). And, Defendants have a duty under Title VII to
provide religious exemptions and accommodations to those with sincerely held religious
objections to the COVID-19 Vaccine Mandate. Yet, when presented with requests from Plaintiffs
outlining their sincerely held religious objections to the mandate, Defendant employers have all
issued blanket denials of such exemptions, refused to even consider or evaluate such requests,
refused to grant any reasonable accommodation for Plaintiffs’ sincerely held religious beliefs, and
3
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 4 of 18 PageID #: 84
threatened to terminate Plaintiffs for their failure to violate their conscience by complying with the
Governor’s mandate. (V. Compl. ¶¶ 1, 5, 82–95.)
As detailed in Plaintiffs’ Verified Complaint, Defendants are callously and unconscionably
ignoring federal law and its demand that sincerely held religious belief be protected and
accommodated. (Id.) Specifically, Plaintiffs are receiving the following responses to their requests
for religious exemption and accommodation:
• “I can share MaineHealth’s view that federal law does not supersede state
law in this instance.”
• “[W]e are no longer able to consider religious exemptions for those who
work in the state of Maine.”
• “All MaineGeneral employees will have to be vaccinated against
COVID-19 by Oct. 1 unless they have a medical exemption. The mandate
also states that only medical exemptions are allowed, no religious
exemptions are allowed.”
• “Allowing for a religious exemption would be a violation of the state
mandate issued by Governor Mills. So, unfortunately, that is not an option
for us.”
(V. Compl. ¶ 1, Exs. A–C (emphasis added).)
While Defendants might be forgiven for articulating such responses if Plaintiffs were
raising them only under Maine law, Defendants are fully aware of the fact that Plaintiffs were
seeking to invoke the protections of federal law and nevertheless refused to accept the supremacy
of such federal protections. Indeed, Jane Doe 1 informed Defendant MaineHealth that she was
seeking her accommodation under Title VII (V. Compl. ¶ 85), yet her request was still rejected
upon the premise that “federal law does not supersede state law in this instance.” (V. Compl.
¶ 87 (emphasis added).) In fact, Defendants have flatly refused to even consider religious
exemption requests. (See V. Compl. ¶¶ 84, 97 (“You submitted a religious exemption, your
request is unable to be evaluated at this time.” (emphasis added)).) MaineGeneral’s response
4
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 5 of 18 PageID #: 85
was similar, in that it noted that federal law provides no refuge for Plaintiffs’ requests for religious
exemption because employers in Maine “must comply with Governor Mills’ COVID-19
vaccination mandate [and] no religious exemptions are allowed.” (V. Compl. ¶ 93 (emphasis
added).)
For Defendants, it is as if the protections for religious beliefs demanded by the First
Amendment (for the Governor) and Title VII (for employers in Maine) simply do not exist. But
Defendants’ willful disregard of federal law provides no refuge for their unconstitutional and
unlawful denials of Plaintiffs’ requests for accommodation. For, “as stated [nearly two centuries
ago], the Supremacy Clause invalidates state laws that interfere with or are contrary to the
laws of congress.” Chicago & N.W. Transp. Co. v. Kalo Brick Tile Co., 450 U.S. 311, 317 (1981)
(emphasis added) (quoting Gibbons v. Ogden, 22 U.S. 1, 211 (1824)). The constitutional structure
of the Republic demands that the State, including Maine, comply with and adhere to the demands
of federal law. Defendants have ignored this structure.
B. The Governor’s COVID-19 Vaccine Mandate Violates the Free Exercise
Clause of the First Amendment.
1. Imposing the Governor’s Mandate on John Doe 1’s practice violates
the Free Exercise Clause.
Plaintiff John Doe 1 is a licensed healthcare provider in Maine, operating his own practice
with employees who all have sincerely held religious objections to the Governor’s COVID-19
Vaccine Mandate. (V. Compl. ¶ 16.) John Doe 1 has sincerely held religious objections to
accepting or receiving the COVID-19 vaccines and has sincerely held religious beliefs that he is
to honor the sincerely held religious beliefs of his employees who object to the COVID-19
vaccines. (Id.) John Doe 1 has been threatened with closure of his practice and loss of his business
license for considering and granting religious accommodations and exemptions for his employees.
5
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 6 of 18 PageID #: 86
(Id.) And, there is no question that the Governor has threatened John Doe 1 with the penalty of the
loss of his license for failure to comply with the Governor’s mandate. (V. Compl. ¶ 43 (“[t]he
organizations to which this requirement applies must ensure that each employee is vaccinated, with
this requirement being enforced as a condition of the facilities’ licensure.”).)
The Governor’s mandate and its threat of revocation of John Doe 1’s license for failure to
comply is almost identical to the mandates struck down by the Supreme Court in Burwell v. Hobby
Lobby Stores, Inc., 573 U.S. 682 (2014). There, the federal government mandated that Hobby
Lobby (a privately held corporation with sincerely held religious beliefs against abortion) provide
insurance coverage for its employees to receive abortion-inducing drugs and contraceptives. 573
U.S. at 690–91. There, the Court noted that the plaintiffs—as here—
have a sincere religious belief that life begins at conception. They therefore object
on religious grounds to providing health insurance that covers methods of birth
control that, as HHS acknowledges . . . may result in the destruction of an embryo.
By requiring the Hahns and Greens and their companies to arrange for such
coverage, the HHS mandate demands that they engage in conduct that
seriously violates their religious beliefs.
Id. at 720 (emphasis added). Here, too, the Governor’s mandate imposes a substantial burden on
Plaintiffs’ religious beliefs. In fact, John Doe 1 must either mandate that his employees receive a
vaccine they find objectionable under their sincerely held religious beliefs, or deprive his
employees of their abilities to feed their families. Such an unconscionable choice is clearly a
substantial burden. Indeed, the First Amendment can hardly be thought to countenance as “a
tolerable result to put a family-run business to the choice of violating their sincerely held religious
beliefs or making all of their employees lose their existing [employment].” Id. at 722.
There, as here, the Court was faced with a government mandate that conflicted with the
sincerely held religious beliefs of the plaintiffs. There, as here, compliance with the government’s
mandate imposed a substantial burden on the plaintiffs’ sincerely held religious beliefs. There, as
6
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 7 of 18 PageID #: 87
here, the government’s restrictions on the plaintiffs’ sincerely held religious beliefs were subject
to (and failed) strict scrutiny. Because the Governor’s COVID-19 Vaccine Mandate is not neutral
or generally applicable, and provides for individualized medical exemptions but not religious, the
mandate is subject to strict scrutiny, and Defendants utterly fail to carry their burden under that
standard. (See infra.)
2. The Governor’s refusal to permit accommodation of sincerely held
religious beliefs violates the Free Exercise Clause.
In Tandon v. Newsom, the Supreme Court held that the government violates the First
Amendment “whenever it treats any comparable activity more favorably than religious
exercise.” 141 S. Ct. 1294, 1296 (2021) (bold emphasis added). Here, that is plainly what
Defendants have done. The government Defendants have mandated that individuals who are
employed in the healthcare industry accept and receive a COVID-19 vaccine. No choice has been
given to religious adherents, yet nonreligious exemptions and accommodations are readily
available.
And, there is no dispute about the two separate categories of exemptions the Governor has
created. Plaintiffs have been informed that while religious exemptions are per se barred in the State
of Maine, the more favored medical category of exemptions is alive and well in Maine. (V. Compl.
¶¶ 96–103.) Specifically, in its response to Jane Doe 1, Defendant MaineHealth has indicated it is
perfectly willing to accept and grant medical exemptions but will not allow religious exemptions.
Specifically, MaineHealth told Jane Doe 1:
You submitted a religious exemption, your request is unable to be evaluated due to
a change in the law. Your options are to receive vaccination or provide
documentation for a medical exemption to meet current requirements for continued
employment.
7
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 8 of 18 PageID #: 88
(V. Compl. ¶ 97 and Exhibit A at 2.) As MaineHealth informed Jane Doe 1, though her request for
a religious exemption was denied, she was invited to submit a request for a medical exemption.
(V. Compl. ¶ 99 (“If you seek an accommodation other than a religious exemption from the state
mandated vaccine, please let us know.” (emphasis added).)
3. The Governor’s discriminatory mandate fails strict scrutiny.
Because the Governor’s COVID-19 Vaccine Mandate is neither neutral nor generally
applicable, and indeed because it singles out religious objectors for disparate treatment, it must
satisfy strict scrutiny, meaning the restrictions must be supported by a compelling interest and
narrowly tailored. Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 62, 67 (2000);
Calvary Chapel Dayton Valley v. Sisolak, 982 F.3d 1228, 1233 (9th Cir. 2020) (“disparate
treatment of religion triggers strict scrutiny”). “That standard is not watered down; it really means
what it says.” Tandon v. Newsom, 141 S. Ct. 1294, 1298 (2021). This is “the most demanding test
known to constitutional law,” City of Boerne v. Flores, 521 US. 507, 534 (1997), which is rarely
passed. See Burson v. Freeman, 504 U.S. 191, 200 (1992) (“[W]e readily acknowledge that a law
rarely survives such scrutiny . . . .”). This is not that rare case.
Whatever interest the Governor claims, she cannot show the orders are the least restrictive
means of protecting that interest. And it is the Governor’s burden to make the showing because
“the burdens at the preliminary injunction stage track the burdens at trial.” Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006). “As the Government bears the
burden of proof on the ultimate question of . . . constitutionality, [Plaintiffs] must be deemed
likely to prevail unless the Government has shown that [their] proposed less restrictive
alternatives are less effective than [the mandate].” Ashcroft v. ACLU, 542 U.S. 656, 666 (2004)
(emphasis added). Under this standard, “[n]arrow tailoring requires the government to demonstrate
8
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 9 of 18 PageID #: 89
that a policy is the ‘least restrictive means’ of achieving its objectives.” Agudath Israel of Am. v.
Cuomo, 983 F.3d 620, 633 (2d Cir. 2020) (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,
450 U.S. 707, 718 (1981)).
To meet this burden, the government must show it “seriously undertook to address the
problem with less intrusive tools readily available to it,” meaning that it “considered different
methods that other jurisdictions have found effective.” McCullen v. Coakley, 573 U.S. 464,
494 (2014) (emphasis added). See also Agudath Israel, 983 F.3d at 633 (same). And the Governor
must “show either that substantially less-restrictive alternatives were tried and failed, or that
the alternatives were closely examined and ruled out for good reason,” Bruni v. City of
Pittsburgh, 824 F.3d 353, 370 (3d Cir. 2016) (emphasis added), and that “imposing lesser burdens
on religious liberty ‘would fail to achieve the government’s interest, not simply that the chosen
route was easier.’” Agudath Israel, 983 F.3d at 633 (quoting McCullen, 573 U.S. at 495).
Here, for 18 months Plaintiffs have risen every morning, donned their personal protective
equipment (PPE), and fearlessly marched into hospitals, doctors’ offices, emergency rooms,
operating rooms, and examination rooms with one goal: to provide quality healthcare to those
suffering from COVID-19 and every other illness or medical need that confronted them. They did
it bravely and with honor. They answered the call of duty to provide healthcare to the folks who
needed it the most and worked tirelessly to ensure that those ravaged by the pandemic were given
appropriate care. For 18 months PPE and other protocols have been sufficient to protect both
Plaintiffs and their patients. Yet now, Defendants claim that such measures do not suffice. The
Governor tried nothing else. She went straight to a COVID-19 Vaccine Mandate for healthcare
workers and purported to remove any protections for their sincerely held religious beliefs. That
plainly fails strict scrutiny, as the other, less restrictive alternatives—including alternatives that
9
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 10 of 18 PageID #: 90
the MCDC still says are “proven to be one of the most significant, effective, and easiest ways
to reduce the spread of COVID-19,” (V. Compl. ¶ 78 (emphasis added))—are available and
protect Defendants’ interests while still preserving Plaintiffs’ rights under federal law.
C. Defendants Have Conspired to Violate Plaintiffs’ Civil Rights.
Section 1985(3) prohibits Defendants from conspiring to deprive Plaintiffs of the equal
protection of the laws or to deprive them of other constitutionally protected liberties. 42 U.S.C.
§ 1985(3). Such claims include a prohibition on Defendants’ conspiring together to deprive
Plaintiffs of their constitutionally protected right to the free exercise of religion under the First
Amendment. See, e.g., United Bhd. of Carpenters & Joiners of Am. Local 610, AFL-CIO v. Scott,
463 U.S. 825, 830–31 (1983) (holding that a “conspiracy to infringe First Amendment rights is [a]
violation of § 1985(3) [if] it is proved that the state is involved in the conspiracy”); Perez-Sanchez
v. Public Bldg. Auth., 531 F.3d 104, 109 (1st Cir. 2008) (noting that § 1985(3) claims extend to
“members of recognized classifications such as race, sex, religion, or national origin” (citing
Brown v. Reardon, 770 F.2d 896, 906 (10th Cir. 1985)); Palm v. Sisters of Charity Health Sys.,
No. 07-120-B-W, 2008 WL 2229764, *2 (D. Me. May 28, 2008) (noting that conspiracies to
deprive a plaintiff of his First Amendment rights are actionable if state action is involved).
Here, Defendants have plainly entered into an agreement to deprive Plaintiffs of their
constitutionally protected rights to equal protection and the free exercise of their religion, have
done so with a conspiratorial purpose to so deprive them of such rights, have committed overt acts
in furtherance of the conspiracy, and have actually deprived Plaintiffs of their constitutionally
cherished liberties. See Aulson v. Blanchard, 83 F.3d 1 (1st Cir. 1996).
10
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 11 of 18 PageID #: 91
1. Defendants entered into an agreement to violate Plaintiffs’ rights.
There is no question that the Governor and her officials have entered into an agreement
with Defendant employers to deprive Plaintiffs of their constitutionally protected liberties. Indeed,
the Governor’s own press release announcing her mandate that all healthcare workers in Maine
receive a COVID-19 vaccine states that Defendants agree with her concerning its provisions. For
example, Defendant MaineHealth stated that it agreed with the Governor’s decision to mandate
the vaccine and prohibit religious exemptions from it. (V. Compl. ¶¶ 185-186.) Defendant
Northern Light was even more explicit in its confirmation of agreement with the Governor’s
mandate when it stated that “Governor Mills’ decision to require vaccination of health care
workers is another example of close alignment between the government and the health care
community.” (V. Compl. ¶ 187 (italics original).)
And, if these statements of Defendants were somehow insufficient to demonstrate their
express agreement with the Governor to enforce her COVID-19 Vaccine Mandate without
providing any religious exemptions whatsoever, the actions and other statements of Defendants
confirm their agreement. MaineHealth’s agreement with the Governor to deprive Plaintiffs of their
constitutionally protected liberties is evidenced in its denial of Jane Doe 1’s request for religious
exemption and accommodation. (V. Compl. ¶ 185.) Specifically, the statement that MaineHealth
is “no longer able to consider religious exemptions for those who work in the state of Maine”
(id. and Ex. A at 2 (emphasis added)) demonstrates that MaineHealth has reached an agreement
with the Governor to refuse requests for religious exemptions based on the State’s mandate.
These statements and actions have more than demonstrated Defendants’ agreement to
deprive Plaintiffs of their constitutionally protected liberties. “In order to maintain an action under
Section 1985, a plaintiff ‘must provide some factual basis supporting a meeting of the minds, such
11
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 12 of 18 PageID #: 92
that defendants entered into an agreement, express or tacit, to achieve an unlawful end.’” Webb v.
Goord, 340 F.3d 105, 110 (2d Cir. 2003) (emphasis added) (quoting Romer v. Morganthau, 119
F. Supp. 2d 346, 363 (S.D.N.Y. 2000)). Defendants’ public representations that they are in lockstep
with the Governor in requiring Plaintiffs to receive a COVID-19 vaccine and that no religious
accommodations are available plainly demonstrates a tacit—if not express—agreement to preclude
Plaintiffs from seeking and receiving a religious accommodation to the COVID-19 Vaccine
Mandate.
2. Defendants acted with a conspiratorial purpose and committed overt
acts in furtherance of the conspiracy.
The conspiratorial purpose of Defendants’ agreement to deprive Plaintiffs of their
constitutionally and statutorily protected rights to a religious accommodation is manifested by
Defendants’ overt acts in furtherance of the conspiratorial agreement. The Governor and her
officials engaged in an overt act in furtherance of the conspiracy by removing all religious
protections from mandatory vaccines via the agency rule change. (See, e.g., V. Compl. ¶¶ 46–49.)
Indeed, on August 14, 2021, Dr. Shah and the MCDC amended 10-144 C.M.R. Ch. 264 to
eliminate the ability of health care workers in Maine to request and obtain a religious exemption
and accommodation from the COVID-19 Vaccine Mandate. (V. Compl. ¶ 46.) The only
exemptions Maine now lists as available to health care workers are those outlined in 22 M.R.S.
§ 802.4-B, which purports to exempt only those individuals for whom an immunization is
medically inadvisable and who provide a written statement from a doctor documenting the need
for an exemption, despite the fact that the prior version of the rule permitted religious exemptions.
(V. Compl. ¶¶ 47–48.) Moreover, the Governor’s officials engaged in an overt act of denying even
consideration of religious exemptions by stating to the public that religious accommodations and
12
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 13 of 18 PageID #: 93
exemptions were no longer permissible in Maine, regardless of federal law’s requirement that such
accommodations be made available to conscientious and religious objectors. (V. Compl. ¶ 49).
Defendant employers in Maine engaged in overt acts in furtherance of their conspiratorial
purpose by falsely stating to their employees that religious exemptions, including those offered
and mandated by federal law, were inapplicable in Maine. (See, e.g., V. Compl. ¶¶ 1, 82–95.)
Thus, Defendants have all engaged in overt acts in furtherance of their conspiracy and
conspiratorial motives by publicly stating—falsely—that no protections or accommodations are
available to those individuals who might have sincerely held religious objections to the COVID-19
Vaccine Mandate. Those statements to the public and the explicit denials of religious
exemptions to Plaintiffs on the false premise that federal protections do not apply in Maine
are overt acts in furtherance of Defendants’ conspiracy to deprive Plaintiffs of any
accommodation for their sincerely held religious beliefs to which the law entitles them.
3. Defendants have deprived Plaintiffs of their constitutionally protected
civil rights to Equal Protection and Free Exercise.
Not only have Defendants agreed to deprive Plaintiffs of their constitutionally and
statutorily protected liberties and engaged in overt acts in furtherance of their conspiratorial
motives, Defendants have actually deprived Plaintiffs of their protected civil liberties in violation
of 42 U.S.C. § 1985(3). Indeed, Jane Doe 2 was terminated from her position for her refusal to
accept a vaccine that violates her sincerely held religious beliefs. (V. Compl. ¶ 11.) Defendants
have also informed Plaintiffs—who fortunately still have their jobs for now—that as of October
1, they will be terminated if they refuse to accept the COVID-19 vaccine regardless of their
sincerely held religious objections to it. (V. Compl. ¶¶ 82–95, 104–116.)
Thus, because Defendants have agreed to deprive, and in fact have deprived, Plaintiffs of
their rights to accommodation of their sincerely held religious beliefs, Defendants have violated
13
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 14 of 18 PageID #: 94
Section 1985(3) and must be enjoined from continuing to engage in their unlawful and
unconscionable conspiracy to deprive Plaintiffs of their protected free exercise of their sincerely
held religious beliefs.
D. The Governor’s Impermissible Creation of an Unprotected Class of Religious
Objectors in the Healthcare Industry Violates Plaintiffs’ Right to Equal
Protection.
The Equal Protection Clause of the Fourteenth Amendment makes it unconstitutional for
any state to “deny to any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV § 1. “[T]he concept of equal protection has been traditionally viewed as
requiring the uniform treatment of persons standing in the same relation to the government action
questioned or challenged.” Reynolds v. Sims, 377 U.S. 533, 565 (1964). Indeed, when the Governor
engages in a system of systematically targeting religious objectors for disparate treatment under
Maine’s immunization laws, her actions plainly violates the Equal Protection Clause.
The Governor’s COVID-19 Vaccine Mandate and the MCDC’s removal of religious
exemptions for healthcare workers in Maine, on their face and as applied, are each a “status-based
enactment divorced from any factual context” and “a classification of persons undertaken for its
own sake,” which “the Equal Protection Clause does not permit.” Romer v. Evans, 517 U.S. 620,
635 (1996). The Governor’s COVID-19 Vaccine Mandate, on its face and as applied, “identifies
persons by a single trait [religious beliefs] and then denies them protections across the board.” Id.
at 633. Under such a scenario, Romer demands a finding that the removal of protections that
previously existed represents per se animus in violation of the Fourteenth Amendment.
Defendants’ removal of religious exemptions from immunizations—while keeping medical
exemptions as perfectly acceptable in the healthcare field—results in a “disqualification of a class
of persons from the right to seek specific protection [for their religious beliefs].” Id. Indeed, “[a]
14
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 15 of 18 PageID #: 95
law declaring that in general it shall be more difficult for one group of citizens than for all
others to seek [an exemption from the COVID-19 Vaccine Mandate] is itself a denial of equal
protection of the laws in the most literal sense.” Id. (emphasis added). The Governor’s
COVID-19 Vaccine Mandate, on its face and as applied, and the MCDC’s removal of religious
exemptions for healthcare workers, are each such a law.
II. DEFENDANTS’ UNLAWFUL CONDUCT IS CAUSING PLAINTIFFS’
IRREPARABLE HARM.
As the Supreme Court has just recently affirmed, “There can be no question that the
challenged restrictions, if enforced, will cause irreparable harm. ‘The loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’”
Catholic Diocese, 141 S. Ct. at 67 (emphasis added) (quoting Elrod v. Burns, 427 U.S. 347, 373
(1976)). Here, for Plaintiffs, the Governor’s COVID-19 Vaccine Mandate and its unlawful and
impermissible prohibition of religious exemptions that are required under federal law is causing
immediate and irreparable harm to Plaintiffs. Because Jane Doe 1’s request for exemption and
accommodation of her sincerely held religious beliefs has been denied by MaineHealth, Jane Doe
1 faces the unconscionable choice of accepting a vaccine that conflicts with her religious beliefs
or losing her job. (V. Compl. ¶ 104.) Jane Doe 1 will only remain employed until October 1 if she
does not violate her conscience and sincere religious beliefs and accept the Governor’s mandatory
COVID-19 vaccine. (Id.) Jane Does 3–5 all face the identical scenario: violate their sincerely held
religious beliefs by complying with the Governor’s mandate or lose their ability to feed their
families. (V. Compl. ¶¶ 105–108.) Jane Doe 2 already lost her job because she chose not to violate
her conscience, and she cannot obtain new employment in the healthcare field despite her
experience and qualifications because of the Governor’s COVID-19 Vaccine Mandate. (V. Compl.
¶¶ 5, 11, 88.)
15
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 16 of 18 PageID #: 96
Because of the Governor’s COVID-19 Vaccine Mandate, John Doe 1 faces the
unconscionable choice of violating his own sincerely held religious beliefs and accepting the
mandatory vaccine or potentially losing his practice and business license for failure to comply. (V.
Compl. ¶ 111.) And John Doe 1 also faces the unconscionable choice of refusing to grant his
employees’ requests for exemption and accommodation from the Governor’s COVID-19 Vaccine
Mandate or losing his practice and his business license. (V. Compl. ¶ 112.)
The Governor’s mandate, which force Plaintiffs to choose between their sincerely held
religious beliefs and compliance with an unlawful edict that prohibits mandatory federal
protections, is unconscionable, unconstitutional, and unlawful. It imposes immediate and
irreparable harm on Plaintiffs each day it is permitted to continue. A TRO and preliminary
injunction are needed now to protect Plaintiffs’ cherished First Amendment liberties and the
protections afforded to them under the Constitution.
III. PLAINTIFFS SATISFY THE REMAINING REQUIREMENTS FOR A TRO AND
PRELIMINARY INJUNCTION.
When Defendants impose a mandatory vaccine upon Plaintiffs and purport to strip them of
their abilities to receive exemption and accommodation for the exercise of their sincerely held
religious beliefs, courts “have a duty to conduct a serious examination of the need for such a drastic
measure.” Catholic Diocese, 141 S. Ct. at 68. And, as here, “it has not been shown that granting
the applications will harm the public.” Id. Nor could it be shown, as Plaintiffs are merely seeking
to rise each morning, don the same personal protective equipment that sufficed to make them
heroes for 18 months, and continue to provide quality healthcare to those who need it most.
Plaintiffs’ vaccination status was irrelevant for 18 months, and it is irrelevant today.
Moreover, the State “is in no way harmed by the issuance of an injunction that prevents
the state from enforcing unconstitutional restrictions.” Legend Night Club v. Miller, 637 F.3d 291,
16
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 17 of 18 PageID #: 97
302–03 (4th Cir. 2011). But, for Plaintiffs, even minimal infringements upon First Amendment
values constitute irreparable injury. Catholic Diocese, 141 S. Ct. at 67. As such, there is no
comparison between the irreparable injury suffered by Plaintiffs and the non-existent interest
Defendants have in enforcing unconstitutional mandates and depriving Plaintiffs of federally
required protections of their sincerely held religious beliefs and the exercise thereof. Absent a
preliminary injunction, Plaintiffs “face an impossible choice: [accept a vaccine] in violation of
their sincere religious beliefs, or risk [termination] for practicing those sincere religious beliefs.”
On Fire Christian Ctr., Inc. v. Fischer, 453 F. Supp. 3d 901, 914 (W.D. Ky. 2020). The TRO and
preliminary injunction should issue immediately to protect Plaintiffs’ sincerely held religious
beliefs and ensure that federal protections afforded to them are honored by Maine and the
employers located therein.
CONCLUSION
For the foregoing reasons, the Court should grant Plaintiffs’ Motion and issue a TRO and
preliminary injunction immediately. In the alternative, Plaintiffs’ request that this Court issue a
preliminary injunction pending appeal.
17
Case 1:21-cv-00242-JDL Document 3 Filed 08/25/21 Page 18 of 18 PageID #: 98
Respectfully submitted,
/s/ Stephen C. Whiting /s/ Daniel J. Schmid
Stephen C. Whiting Mathew D. Staver*
ME Bar No. 559 Horatio G. Mihet*
The Whiting Law Firm Roger K. Gannam*
75 Pearl Street, Suite 207 Daniel J. Schmid*
Portland, ME 04101 LIBERTY COUNSEL
(207) 780-0681 P.O. Box 540774
Email: steve@whitinglawfirm.com Orlando, FL 32854
Phone: (407) 875-1776
Facsimile: (407) 875-0770
Email: court@lc.org
hmihet@lc.org
rgannam@lc.org
dschmid@lc.org
*Applications for Admission pro hac vice pending
Attorneys for Plaintiffs
18
8
Case 1:21-cv-00242-JDL Document 34-1 Filed 09/02/21 Page 2 of 3 PageID #: 232
The health care worker vaccination requirement has the support of a broad coalition of health care providers
across Maine, including Maine Hospital Association, Maine Medical Association, Maine Primary Care
Association, and Maine Health Care Association, along with the state’s two largest health systems,
MaineHealth and Northern Light Health.
“Hospitals and health systems continue to support Maine’s vaccine requirement for health care workers,”
said Steven Michaud, President of the Maine Hospital Association. “It remains the single most effective
way to keep our patients and caregivers safe which is our number one priority. We will continue to
implement the requirement and educate our employees on these safe and effective vaccines.”
“Maine Health Care Association appreciates the Administration’s decision,” said Angela Westhoff,
President and CEO of the Maine Health Care Association. “We welcome the additional time and
flexibility as employee vaccination efforts continue. We know the vaccine is the best tool to fight the
pandemic and protect the health and safety of our long-term care residents, staff, and communities.”
“Northern Light Health remains confident that Maine’s decision to require health care workers to become
fully vaccinated against COVID-19 is the correct choice for our workforce, our communities, and most
importantly, our patients,” said Tim Dentry, President and CEO of Northern Light Health. “We sincerely
hope that more people will use this additional time to discuss becoming vaccinated with their healthcare
provider, learn more about the benefits of vaccination, and ultimately decide to get vaccinated.”
“Requiring vaccination for all health care workers at licensed facilities statewide is both ambitious and
necessary,” said Dr. Andrew Mueller, chief executive of MaineHealth. “We know for some of our care
team, the choice to get vaccinated has been difficult. We hope this extra time will allow our unvaccinated
colleagues to get the information they need to make an informed choice on behalf of themselves, their
colleagues, our patients and our communities.”
As of today, more than half (nearly 58 percent or 19 out of 33) of Maine’s open COVID-19 outbreaks are
occurring in health care facilities, forcing infected health care personnel to isolate or quarantine and driving
staff shortages. Vaccinations are the most effective tool to prevent staffing shortages caused by unvaccinated
workers.
Since Governor Mills announced the requirement on August 12th, vaccination rates among health care
workers have increased. MaineHealth has experienced a four percentage point increase in vaccinations, while
Northern Light Health has seen its vaccination rate increase by more than six percentage points to 88 percent
of all staff.
The $146 million in supplemental payments to Maine’s long-term care facilities and hospitals build on Maine’s
significant financial and operational support for health care providers on the front lines of the pandemic. The
Mills Administration has already awarded $25 million to 14 hospitals and 96 long-term care facilities to help
health care organizations recover from the COVID-19 pandemic. In December 2020, the Administration also
awarded $5.1 million in grants to 53 health care organizations that serve residents with MaineCare to help
sustain vital health services during the COVID-19 pandemic.
Early in the pandemic, the Department of Health and Human Services provided immediate support of $10
million to hospitals through supplemental payments and $20 million to nursing facilities, long-term care
facilities and other congregate care facilities through temporary rate increases. Maine health care providers
have also received over $660 million directly from the U.S. Department of Health and Human Services through
the Provider Relief Fund, which was authorized under the Coronavirus Aid, Relief, and Economic Security
(CARES) Act.
The State of Maine has long required the immunization of employees of designated health care facilities to
reduce the risk of exposure to, and possible transmission of, vaccine-preventable diseases. These
immunizations include measles, mumps, rubella, chickenpox, hepatitis B, and influenza. This existing rule has
been amended to include the COVID-19 vaccine. The organizations to which this requirement applies must
ensure that each employee is fully vaccinated, with this requirement being enforced as a condition of the
facilities’ licensure.
Under the long-standing rule, health care workers are defined as including any individual employed by a
hospital, multi-level health care facility, home health agency, nursing facility, residential care facility, and
intermediate care facility for individuals with intellectual disabilities that is licensed by the State of Maine. The
Case 1:21-cv-00242-JDL Document 34-1 Filed 09/02/21 Page 3 of 3 PageID #: 233
emergency rule also requires those employed by emergency medical service organizations or dental practices
to be vaccinated for COVID-19.
According to a mandated survey of health care settings by the Department of Health and Human Services,
80.3 percent of staff at hospitals, 73 percent of staff at nursing facilities, and 68.2 percent of staff at
intermediate care facilities for individuals with intellectual disabilities have been fully vaccinated against
COVID-19 as of late July.
Maine continues to make nation-leading progress with its vaccination effort. Governor Mills announced earlier
this month that 80 percent of eligible people in Maine have received at least one dose of a COVID-19 vaccine,
achieving another milestone for the state as it continues to confront an increase in cases associated with the
Delta variant. According to the U.S. Centers for Disease Control and Prevention (U.S. CDC), 83 percent of adults
(18+) in Maine have received a COVID-19 vaccination.
Maine is the fourth best state in the nation in the percentage of residents who are fully vaccinated, with more
than 65.9 percent of all residents – including children under 12 who are not yet eligible for a vaccine – fully
vaccinated against COVID-19. Maine also continues to make progress in vaccinating younger people, with
more than 54 percent of youth ages 12 to 19 being fully vaccinated.
COVID-19 vaccines are available at no charge at sites across the state. For information on getting a vaccine,
please visit Maine.gov/covid19/vaccines or call the Community Vaccination Line at 1-888-445-4111.
Despite having the oldest median age population in the country, Maine, adjusted for population, ranks third
lowest in total number of cases and fourth lowest in number of deaths from COVID-19 from the start of the
pandemic, according to the U.S. CDC.
Credit Information Connect Contact
Maine.gov Facebook Governor Janet Mills
1 State House Station
Site Policies
Twitter Augusta, ME 04333
Accessibility 207-287-3531
Copyright © 2021 Instagram
All rights reserved. Document Viewers
Governor Janet T. Mills
File and source
- File
- 21A90_002_Oct_20_2021_Other_20211020152731845_Appendix_of_Exhibits_FINAL.pdf
- Size
- 4,393,828 bytes
- SHA-256
- 98ebb9302c34bb9fc270892438f4382116a618448ddb230b0ed507368ec3b291
- Original
- www.supremecourt.gov