SCOTUS, U.S. Appeals Court deal setbacks to vaccine-mandate foes

The U.S. Court of Appeals and the U.S. Supreme Court late Friday dealt major blows to opponents of coercive COVID-19 vaccine mandates who object to inoculations based on religious-liberty.

The Supreme Court denied an emergency injunction sought by a group of 2,009 Maine health care workers fighting Gov. Janet T. Mills and her administration’s vaccine mandate. The U.S. Court of Appeals for the Second Circuit also overturned a preliminary injunction against the State of New York’s vaccine mandate for health care workers and remanded two vaccine cases back to the district courts for more proceedings.

Friday was the second time in October the High Court refused to intervene in the Maine case, after lower courts refused to block the vaccine mandate. Plaintiffs in the case said they will return to the high court with a petition for justices to consider the merits of the case with a full briefing of the issues.

Three justices—Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch—filed a dissent against the court’s refusal to grant a temporary injunction. Two ostensibly conservative justices, Amy Coney Barrett and Brett Kavanaugh, filed a brief in concurrence of the court’s denial of an injunction. The immediate impact of the ruling will be the loss of jobs by an unknown number of Maine health workers who refuse to take the shots.

“This case is far from over. We will file a petition with the Supreme Court to review the merits of the case after full briefing and argument,” said Matthew D. Staver, chairman of the public-interest law firm Liberty Counsel. “The High Court’s decision to not grant the emergency relief is not a ruling on the merits. Maine has no authority to order employers to disobey federal Title VII employment law.”

In August, Maine dropped its policy that allowed for religious exemptions to the vaccine mandate. The state still allows medical exemptions. Plaintiffs object to the COVID shots’ ties to abortion-derived cell lines. They say the Maine shot policy violates religious-liberty protections in Title VII of the Civil Rights Act of 1964, and the First Amendment’s guarantee of free exercise of religion. The state argues the mandate is a key to protecting patients and care workers from the spread of COVID-19.

Staver said the ruling will only make worse the shortage of health care workers across Maine and lead to firing of countless workers who won’t betray their faith by taking an abortion-tainted COVID vaccine. “While we should ultimately prevail on the merits, the tragedy is that today many health care heroes are being terminated,” Staver said. “Since 2019, Maine has suffered from a shortage of health care workers and that shortage will increase as of today. The people who will suffer are not only the health care workers but patients who need care.”

Justice Gorsuch, in a lengthy dissent, said the Maine vaccine policy seems certain to work against its stated goal to keep health-care workers on the front lines. The policy should be judged under a standard called strict scrutiny, he said, because it is not generally applicable and invites individualized exemptions for medical reasons.

“From all this, it seems Maine will respect even mere trepidation over vaccination as sufficient, but only so long as it is phrased in medical and not religious terms,” Gorsuch wrote. “That kind of double standard is enough to trigger at least a more searching (strict scrutiny) review.” Supreme Court precedent has held that a law is not neutral or generally applicable if it treats any secular activity more favorably than religious exercise, he said.

“The State allows those invoking medical reasons to avoid the vaccine mandate on the apparent premise that these individuals can take alternative measures (such as the use of protective gear and regular testing) to safeguard their patients and co-workers,” Gorsuch wrote. “But the State refuses to allow those invoking religious reasons to do the very same thing.”

Maine has not shown how religious objectors present any more of a risk to patients or other staff than those who refuse the COVID shot on medical grounds, Gorsuch wrote. “Where many other States have adopted religious exemptions, Maine has charted a different course. There, healthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered,” he wrote. “All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention. I would grant relief.”

Justices Barrett and Kavanaugh wrote of their concern that plaintiffs could use emergency petitions like this to force the Supreme Court to weigh in on cases it would otherwise not take, “and to do so on a short fuse without benefit of full briefing and oral argument.”

Appeals court overturns NY injunction

A three-judge panel of the U.S. Court of Appeals for the Second Circuit, after hearing oral arguments in New York on Oct. 27, overturned the preliminary injunction issued Oct. 12 against New York’s vaccine mandate for health workers. In the same order, the appeals court denied a preliminary injunction sought by New York health workers in a closely related case. It remanded both cases back to U.S. District Court based on reasoning in the forthcoming written ruling.

The Thomas More Society, representing 16 Catholic and one Baptist health care workers, filed suit against the vaccine mandate on Sept. 12. Within 24 hours, U.S. District Judge David N. Hurd issued a temporary restraining order against the mandate. On Oct. 12 Judge Hurd issued a preliminary injunction in a 27-page ruling that forbid the State of New York from interfering in any way with issuance of religious exemptions to the shot mandate. The appeals court vacated the injunction.

In its questioning of attorneys during the hearing, the appeals judges seemed deferential to the arguments put forth by the State of New York and its deputy solicitor general, Steven C. Wu. Wu argued the State of New York does not have to offer religious exemptions, which he said place a burden on the state that works against the goal to keep health workers on the front lines. “Statewide, the number of religious exemptions that have been granted are between three to four times higher than medical exemptions,” Wu said, “and in some areas are like 20 to 30 times higher in western and northern New York.”

Wu made a surprising claim during oral arguments before the three-judge appeals panel. While discussing the wide use of abortion-derived cell lines in pharmaceutical research, he said: “The fetal cell lines that were developed in the 70s and that were used for testing here, aren’t just for measles and rubella vaccines, they’re used for Tylenol, for Pepto-Bismol, all sorts of over-the-counter medicines.” One of the judges asked Wu, “How do I know that Pepto-Bismol was tested with fetal cells?” Wu’s reply: “It is not part of the (case) record, but it is part of the public knowledge about these cell lines.”

Neither of Wu’s claims matches the historical record, according to a summary of common medications published by Children of God for Life, a pro-life group that promotes development of ethical vaccines. In fact, nearly 80 years separates the development of those medications and first use of the fetal cell lines used to test COVID-19 vaccines.

The abortion-derived cell lines used in development and testing of the three COVID-19 vaccines available under federal emergency use authorization—HEK-293 and PER.C6— were developed from children aborted in 1972 and 1985. The HEK-293 line was first available to researchers in 1977, according to Children of God for Life. Pepto-Bismol was first sold in 1900 under the name Mixture Cholera Infantum as a treatment for pediatric diarrhea. The trade name was later changed to Bismosal and changed again in 1919 to Pepto-Bismol. Acetaminophen, sold under various trade names including Tylenol and Panadol, was first prepared in 1878, according to the American Chemical Society. It was first marketed for pain and fever relief under the trade name Triagesic in 1950.

Attorney Christopher A. Ferrara, special counsel for the Thomas More Society, told the appeals court the State of New York’s vaccine mandate blocks employers from working with their staff to find accommodations to religious objections to the COVID shots.  It “bars access” to the collaborative process outlined in Title VII of the Civil Rights Act of 1964, he said.

“All the state has done here is to declare an emergency without providing any scientific basis or any data at the early stage of the proceedings to justify the one-size-fits-all rule 2.61, which absolutely precludes the kind of accommodation we are seeking, and which hospitals have granted here,” Ferrara said. “There’s no showing by the state that the granting of that accommodation since the TRO (temporary restraining order) was in effect has caused any harm whatsoever to the state.”

Restraining order issued in Illinois case

A federal judge in northern Illinois on Friday issued a temporary restraining order against NorthShore University HealthSystem and its COVID-19 vaccine mandate, ruling the 14 plaintiff employees were likely to prevail on the case merits.

After an emergency hearing conducted by telephone in Chicago, U.S. District Judge John F. Kness issued the temporary restraining order, enjoining NorthShore University HealthSystem from dismissing the 14 plaintiffs for not taking a COVID-19 vaccine required under health system policy. He set a Nov. 16 hearing to consider a preliminary injunction that, if granted, would remain in place throughout the course of the litigation. He did not rule on whether plaintiffs can remain identified only by pseudonyms for security reasons.

“Today’s ruling gave emergency relief to Liberty Counsel’s 14 plaintiffs who were threatened to be terminated by NorthShore University HealthSystem for their religious beliefs,” Staver said. “This health care facility’s plans to purge employees who have sincere religious beliefs against the COVID shots has been foiled. These health care workers are heroes.”

Liberty Counsel filed a class-action lawsuit against NorthShore on Oct. 25, alleging the 14 nurses and other health workers had their requests for religious exemption denied at least in part because they object to the use of abortion-derived cell lines in creation, testing or production of the inoculations. NorthShore initially denied the exemptions, then later said it would replace them with ones requiring the staff to work remotely, according to the suit. Most of the plaintiffs are nurses or other patient-facing staff. Based in Evanston, Ill., NorthShore employs 17,000 people at six hospitals and 140 other Chicago-area locations.

The TRO against NorthShore is the latest judicial intervention in the increasingly contentious issue of coercive COVID-19 vaccine mandates. Federal courts in various states have come down on both sides of the issue, some ruling for hospitals who put vaccine mandates in place, and some ruling for health workers who were denied religious exemptions they sought due to their opposition to abortion-derived cell lines. The U.S. Court of Appeals for the Sixth Circuit upheld an injunction against Western Michigan University’s vaccine mandate, while the appeals court for the First Circuit refused to grant an injunction to Maine health care workers, and the Second Circuit overturned the injunction against New York’s mandate.

(Editor’s note: This story was substantially updated at 10:00am Eastern time, Oct 30, 2021.)