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We observed in a recent post that the constitutionality of government vaccine requirements really should not be controversial, and after reporting recently on yet another case upholding such requirements, we expressed our hope that we would not be writing much further on them.

Well, here we are, writing again on government vaccine requirements—as we did here and here and here.  We write not because we want to, but because people keep suing, including people who have already been vaccinated against any number of diseases and typically comply with public health guidelines without any fuss.  A recent lawsuit against the State of Maine provides a good example.  Maine has mandated that its healthcare workers be vaccinated against certain contagious diseases since 1989—measles, mumps, rubella, chickenpox, etc.  See Does v. Mills, No. 21-1826, 2021 WL 4860328, at *1 (1st Cir. Oct. 19, 2021).  That requirement appears not to have caused anyone any major heartburn.

Things got more interesting in May 2019.  That is when Maine responded to declining vaccination rates by amending its healthcare worker vaccination requirement to eliminate religious exemptions.  Id.  No one appears to have minded that change, either.  Recall that in May 2019, COVID-19 was not a thing, and there certainly was no COVID-19 vaccine.

The litigation started when Maine added COVID-19 to its vaccination list for healthcare workers in August 2021.  Id. at *3.  This was not a rash move.  To protect its healthcare infrastructure, the state had adopted multiple other measures to increase COVID-19 vaccination among healthcare workers.  These measures included holding information sessions, giving vaccine priority to frontline workers, opening large public vaccination sites, distributing vaccines to healthcare facilities, and providing free transportation and other incentives.  Id. at *2.  None of those measures got the vaccine rates to levels sufficient to protect public health, so the state made it mandatory.

That was it.  Anti-vaxers quickly sued, and we can’t help but note the hypocrisy of it all.  No one sued when the state made the measles vaccine mandatory, and we will bet dollars to donuts that nearly all of the “Doe” plaintiffs who sued were vaccinated against measles and other former childhood diseases without complaint.  It only highlights the overt and harmful way in which the COVID-19 vaccine has been uniquely politicized, all to the detriment of public health.  We are thinking particularly of potential harm to people who legitimately cannot be vaccinated, such as young children and the immunocompromised, let alone people who have been vaccinated but are still susceptible to breakthrough infections.

Politics aside, the plaintiffs raised a number of challenges, and none of them had merit.  They sought to enjoin Maine’s law and alleged mainly that the vaccine requirement violated the right to free exercise of religion under the First Amendment by denying them religious exemptions.  In affirming the district court’s denial of a preliminary injunction, the First Circuit rejected that claim.  When a law is religiously neutral and generally applicable, it survives constitutional scrutiny if it is rationally related to a legitimate governmental interest, i.e., rational basis review.  Here, the rule did not selectively burden any religiously motivated conduct while exempting comparable secular conduct.  Id. at *5.  Consider by comparison a law that prohibits religious gatherings of a certain size, but allows rock concerts or business conferences under similar circumstances.  That is the more like the Supreme Court’s Roman Catholic Diocese v. Cuomo case and would be questionable.  Maine’s healthcare worker vaccination requirement applies uniformly, and it has only one exemption—the medical exemption.  And that one exemption is to prevent the rule itself from posing a health risk.  Id. at *6.

The rule thus was generally applicable and facially neutral, and it easily related to a legitimate governmental interest—protecting public health against a contagious disease.  For good measure, the First Circuit ruled that the requirement survived strict scrutiny, too.  Because Maine used all available tools to no avail before adding COVID-19 to the vaccine list, the denial of a religious exemption was narrowly tailored to an “unquestionably” compelling interest—“stemming the spread of COVID-19.”  Id. at *7.

The First Circuit rejected the plaintiffs’ other challenges as well.  They argued that the vaccination requirement violated the Supremacy Cause because it purported to displace Title VII, a federal statute that prohibits employment discrimination.  Id. at *10.  But the parties agreed that Title VII is the law of the land.  The dispute was over whether Title VII compelled Maine to offer a religious exemption to the vaccine rule, which it did not.  Id.  The plaintiffs also failed to allege a conspiracy under section 1985.  A section 1985 conspiracy requires plausible allegations of an agreement among the alleged conspirators to deprive the plaintiffs of their civil rights.”  Id. at *11.  Here, the plaintiffs sued hospitals along with the State of Maine, but they did not allege that the hospitals had anything to do with enacting the law.  Id.  Where was the conspiracy?

We will retract our previously expressed opinion that this will be the end of the discussion on mandatory vaccine policies.  The discussion will go on, and controversy will swirl where there ought not be one.  We can only hope for the best, and in closing will echo one of our co-bloggers—stay safe out there.