[dc]I[/dc]n a ruling released late Friday, the United States Supreme Court refused to issue a preliminary injunction to temporarily block a Maine rule requiring certain healthcare workers to take the COVID-19 vaccine or lose their jobs or medical practices and allowed for medical but not religious exemptions.

We learn about the merits of the argument from the justices who thought that the Court should have granted the injunction, and from two Justices, Barrett and Kavanaugh, who agreed with the denial of the injunction, but wanted to underscore that the merits case can still be brought forward and the Court can later decide whether to hear it.

When a party seeks injunctive relief, in this case to block the Maine rule, the Court considers whether that party “is likely to succeed on the merits.” There is no majority opinion in the case aside from a brief paragraph written by Justice Barrett and joined by Justice Kavanaugh. Justice Barrett contends that when asked to consider the likelihood of success, the Court should also consider whether it would decide to hear the case and not just jump ahead and make a preliminary ruling on the merits without full briefing and oral argument. Of course, in this case, the problem is that people in Maine could begin losing their jobs as soon as the law goes into effect.

Justices Gorsuch, Thomas, and Alito thought that the Court should have issued an injunction and wrote an 8-page dissent. Although they failed to convince two more justices to agree with them, with the Court ruling 6-3 against the injunction, their dissent is how we learn about the thinking of the Court on this matter.

“If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.” – The dissent.

They argue that because Maine’s law does burden the exercise of sincerely held religious beliefs, the State must satisfy a strict scrutiny standard. The religious argument raised by the plaintiff healthcare providers was that the Moderna and Pfizzer COVID-19 vaccines were developed through fetal cell line testing, and they also alleged that the Johnson and Johnson vaccine used “abortion-related materials” in its production. Maine had not contested this issue.

The dissenting justices noted that because Maine specifically said that the vaccine mandate was not absolute, certain individual exemptions were allowed but not religion, this discriminated against people who refused the vaccines on religious grounds. Other exemptions could be invoked if those who refused vaccines had a “written statement” from a doctor saying that the vaccine “may be” medically inadvisable. Wrote the dissenting justices, “That kind of double standard is enough to trigger at least a more searching (strict scrutiny) review.”
Additionally, the State could not present evidence that a person who was unvaccinated for secular reasons was less likely to spread COVID than a person who refused to be vaccinated for religious reasons.

“If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.” – The dissent.

They also argued that precedent in other COVID cases that emerged before the distribution of the vaccines showed that if any secular activity were treated more favorably than a religious activity, the strict scrutiny standard would be triggered. Nor did Maine indicate how other states could provide a religious exemption, but they could not. “Maine’s decision to deny a religious exemption in these circumstances doesn’t just fail the least restrictive means test, it borders on the irrational.”

The dissent clarified that if strict scrutiny were applied, Maine would need to show that the vaccine mandate was the least restrictive means of meeting its goals. By forcing people to close their professional medical practices or be terminated from employment, the dissent argued that they faced a irreparable harm.

Had the majority written a substantive opinion, we would have reviewed that in this space.


Does v. Janet Mills, Governor of Maine, 595 U.S. ____ (2021) (10/19/2021)



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