We told you that if anti-vaxxers found a sympathetic court in their quest to declare government vaccine mandates unconstitutional, we would let you know.  Well, we did not think it would be so soon.  And we surely did not think that the sympathetic court would be the United States Supreme Court.

Don’t get the wrong idea.  SCOTUS has not declared government vaccine mandates unconstitutional, and the more-than-one-hundred-year-old precedent affirming the constitutionality of government vaccine mandates is under no imminent threat.  See Jacobson v. Massachusetts, 197 U.S. 11 (1905).  The constitutionality of such mandates is not even really before the Supreme Court.

So what gives?  The Supreme Court denied an application for injunctive relief filed by the plaintiffs in Does v. Mills, the First Circuit case on which we reported a couple of weeks ago.  That is the case where the plaintiffs sued to enjoin Maine’s mandate that its healthcare workers be vaccinated against certain contagious diseases—including COVID-19.  The Supreme Court usually does not provide reasoned opinions when it denies a request for an injunction.  Here, however, Justice Barrett and Justice Kavanaugh filed a concurrence stating that extraordinary relief is not appropriate where it would require merits review of a question of first impression “on a short fuse without benefit of full briefing and oral argument.”  Does v. Mills, No. 21A90, 2021 WL 5027177, at *1 (Oct. 29, 2021).  In other words, people should not read the denial order as commenting on the merits of the dispute.

So the plaintiffs lost, but the real story here is that three justices dissented and would have granted the injunction on the basis that Maine’s vaccine mandate for healthcare workers does not provide for religious exemptions.  Id. at *1-*4.  Recall that the plaintiffs made this same argument in the First Circuit, but the First Circuit reasoned that the Maine rule did not selectively burden any religiously motivated conduct while exempting comparable secular conduct.  The rule applies uniformly, and it has only one exemption—a medical exemption that prevents the rule itself from posing a health risk.

The First Circuit’s reasoning may, in the end, carry the day.  To the extent a contrary ruling would discourage vaccination and result in illness and death that is preventable, that would be a poor outcome for the sake of public health.

Three justices of the Supreme Court apparently would have it that way.  According to the strongly worded dissent written by Justice Gorsuch and joined by Justice Thomas and Justice Alito, the Maine rule is not neutral and generally applicable, thus calling for strict scrutiny.  The problem for them is that the rule provides for some exemption, but not a religious exemption, thus creating an unequal field:

Under this Court’s precedents, a law fails to qualify as generally applicable, and thus triggers strict scrutiny, if it creates a mechanism for individualized exemptions.  . . . .  That description applies to Maine’s regulation.  The State’s vaccine mandate is not absolute; individualized exemptions are available, but only if they invoke certain preferred (nonreligious) justifications.  . . .  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.  That kind of double standard is enough to trigger at least a more searching (strict scrutiny) review.”

Id. at *2 (citations omitted).  It seems then that an absolute mandate that provided for no exemptions of any kind (such as the one at issue so long ago in Jacobson v. Massachusetts) would not have raised the dissenters’ collective eyebrow.  It was the provision of a medical exemption without a companion religious exemption that triggered comment.

The dissenters would apply strict scrutiny for a second reason:  A law is not neutral and generally applicable if it treats “any comparable secular activity more favorably than religious exercise.”  Id.  That is the example we gave before:  A state should not prohibit large religious gathering while permitting rock concerts or trade shows of comparable size.  Maine allows healthcare workers with medical exemptions to take alternate measures, such as the use of protective gear and regular testing.  It does not, however, make those same measures available to those who resist vaccination for religious reasons.  Id.

The dissenters thus would apply strict scrutiny and would find Maine’s particular mandate unconstitutional.  In their view, the mandate does not represent the least restrictive means to achieving a compelling interest, which leads to this somewhat chilling quote:

I accept that what we said 11 months ago remains true today—that “[s]temming the spread of COVID-19” qualifies as a “compelling interest.”  [citing Roman Catholic Diocese v. Cuomo.]  At the same time, I would acknowledge that this interest cannot qualify as such forever.  Back when we decided Roman Catholic Diocese, there were no widely distributed vaccines.  Today there are three.  At that time, the country had comparably few treatments for those suffering with the disease.  Today we have additional treatments and more appear near.

Id. at *3.  This quote reminds of anti-vaxxers who argue that the risks of vaccination against childhood diseases are roughly equal to the risks of getting the diseases themselves, so why bother.  Even if that were true, the risk of getting childhood diseases today is low because of vaccines.  Just because they are available and effective does not mean that we don’t need that anymore.  Moreover, so long as potentially fatal diseases exist, the government will have an interest in preventing illness and death, and the wide availability of vaccines does not diminish that interest.

No one is arguing that Maine has to provide religious exemptions from vaccination against polio or measles.  Indeed, no appellate court since Jacobson has held that any vaccine mandate must have a religious exemption; and since California and New York both eliminated religious exemptions in the decade before COVID-19, the issue has been litigated recently.  As Bexis explained here, the dissenters’ view is unprecedented.

For reasons that are strangely political, COVID-19 is different.  The Maine plaintiffs did not prevail, but they got the attention of three Supreme Court justices, plus two others who wrote that they concurred with the denial of the injunction on procedural grounds only.  Three plus two equals . . . .  Hmm.  Stay tuned.