This article about the Supreme Court and how it may use religious freedom against vaccine mandates was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law. Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.
On 29 October 2021, the Supreme Court rejected a request to stay – put on hold – Maine’s vaccine mandates for healthcare workers, which did not include a religious exemption. Many people in the immunization community are excited and happy about this decision.
Without wanting to be a downer, I want to explain why this decision – though certainly better than the alternative, staying the mandate – should cause us concern. Basically, three justices on the Court signed onto an opinion that essentially says that public health writ large is not a compelling state interest (in the middle of a deadly pandemic), that thinks that the right comparison is one religious exemption to one medical exemption (rather than consider aggregate effects) and that if other states are less protective of their citizens’ health, a state can’t limit religion to protect its citizens better.
What was not in the decision is any concern about the effects of COVID-19, a disease that is still killing over 1,000 Americans a day. That is highly problematic. But more concerning is the fact that two other justices were not willing to stay the mandate via emergency proceedings, but saying no more, implying that they are open to considering requiring a religious exemption (though they are certainly not saying they would – and these justices probably could use more information on why requiring a religious exemption from vaccines mandates is problematic).
On 12 August 2021, Maine required that all healthcare workers be vaccinated against COVID-19, or lose their job. Maine offered a medical exemption if “a medical practitioner certifies that vaccination ‘may be medically inadvisable.'”
Unsurprisingly, healthcare workers unhappy with the mandate appealed. The healthcare workers alleged that they have a sincere religious belief against the vaccines because of the use of cell lines descended from long-ago abortions in producing the JNJ vaccine and because the mRNA vaccines used cell lines in testing the concept (as do aspirin, Tylenol, ivermectin, and many other products).
The issue of cell lines in vaccines is beyond this post, but here is a helpful discussion. Maine did not challenge the sincerity of the claims, but adopted a blanket policy against religious exemptions, following its approach to other vaccines. In 2019, “responding to declining vaccination rates,” Maine removed the religious exemption to all its vaccines laws, and it applied the same approach here.
This was challenged, and in careful, thorough decisions both the district court and the First Circuit Court of Appeals, that is the one that governs Maine, refused to stay – put on hold – the mandate during litigation, finding, among other things, that in their view plaintiffs are likely to lose their case on the merits. Plaintiffs, naturally, appealed to the Supreme Court to stay the mandate while litigation is ongoing. In this post, I won’t go into the First Circuit or district decisions, simply because it would make the post too long, but they are worth reading.
For full disclosure, I submitted a brief, together with several public health organizations and professors, arguing that the Court should reject the request.
Supreme Court decision on religious freedom and vaccine mandates
As mentioned, the Supreme Court refused to stay the decision. The vote was 6 justices against staying, 3 for. This is an interim measure – not the final ruling on the case, but a decision on a request for an emergency stay.
As is fairly usual, the majority, in deciding not to grant the relief, did not give us an opinion – we do not know the reasoning. Granting an emergency stay is an unusual step, and refusing it is more usual.
But we do have two opinions in the case. Justices Barrett and Kavanaugh submitted a short “concurrence”, an opinion explaining their agreement with the decision, and Justices Gorsuch, Alito, and Thomas submitted an eight-page dissent on why they would grant a stay.
In her short concurrence, Justice Barrett, who Justice Kavanaugh joined, said that, in essence, she is not comfortable granting the “extraordinary relief” that a stay of the mandate would be because the case “is the first to address the questions presented.” Justice Barrett expressed concern that “applicants could use the emergency docket to force the Court to give a merits pre-view in cases that it would be unlikely to take — and to do so on a short fuse without the benefit of full briefing and oral argument.”
This might be a response to the criticism directed at the court for, over the past year, using emergency relief to enact what many see as a real change in our religious jurisprudence – to make law in the shadows, in the words of law professor Stephen Vladeck.
Whether that is or is not the impetus, it’s the right thing. The Court should not make new laws through emergency rulings that are not fully briefed and do not have thorough opinions. But it’s important to realize that this tells us very little about where Justices Kavanaugh or Barrett stand on the issue. It tells us they do not feel as strongly as the three dissenters against the mandate. But it does not mean they would uphold it when fully argued.
Justice Gorsuch’s dissent – which Justice Thomas and Alito joined – is much more concerning. Let’s start with what is not there. At no point in the decision does Justice Gorsuch acknowledge that COVID-19 is a real emergency. That over a thousand people are dying from it in the United States every day. That it killed over a thousand people in Maine, a state with a little over 1.3 million inhabitants, approach 1:1000 deaths of the entire state population. In fact, as I will discuss below, he discounts the threat from COVID-19.
This is troubling.
Justice Gorsuch opens by setting up the distress of the dismissed healthcare workers, which is no doubt real enough. The first step in his actual legal analysis is to address what the standard is. There are two possibilities here. One is to conclude that Maine’s law is a generally applicable, neutral on its face law, to which a lower level of review – rational basis – would apply. The second is to conclude that it’s not neutral and generally applicable, in which case strict scrutiny – a much higher bar – would apply. Gorsuch would apply the higher bar, and then apply it in a way that turns it from “strict” to “non-passable”.
Justice Gorsuch thinks the law is not neutral and generally applicable because it has a medical exemption. Further, he sees the specific medical exemption as an issue because
“Nothing in Maine’s law requires this note to contain an explanation why vaccination may be medically inadvisable, nor does the law limit what may qualify as a valid “medical” reason to avoid inoculation. So while COVID–19 vaccines have Food and Drug Administration labels describing certain contraindications for their use, individuals in Maine may refuse a vaccine for other reasons too. From all this, it seems Maine will respect even mere trepidation about 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. “
This is problematic on a number of grounds. First, as others have pointed, it is probably incorrect to use the medical exemption this way. Medical exemptions are not, in a real sense, an exception to vaccine mandates – one of the justifications to vaccine mandates is that those who can vaccinate need to do so to protect those who cannot be vaccinated. Basically, the better reading of this rule is not “this is a mandate for everyone to be vaccinated except if they have a medical exemption,” but that “this is a mandate that everyone who can medically vaccinate, vaccinate.”
Further, in spite of the framing in Justice Gorsuch’s decision, we do have external criteria to assess the validity of medical exemptions – even beyond the list of specific contraindications in the CDC’s discussion of the vaccines. Doctors serve as the gatekeepers, but problematic exemptions by doctors have been refused in the past, and in fact, several states have disciplined doctors writing fake exemptions. In the specific case of Maine, too, Maine has a long history of vaccines mandates and medical exemptions. Medical exemptions have always been rare there. For children, that rate has doubled in 2018-2019 to 0.6% – less than one percent, compared to a rate of 5.6% for non-medical exemption. That order of magnitude difference is usual.
Although the written law does not include specific guidance, there is oversight of medical exemptions and pretty well-defined rules. I would agree with Justice Gorsuch that a medical exemption that sets out the specific reasoning is better – it’s also easier to oversee. But Maine specifically, and other states too, have a history of policing medical exemptions even without it because there are relatively clear criteria.
We not only have the same kind of policing of religious exemptions, but it’s also inadvisable to have it – there are real risks in policing people’s souls, and I expect Justice Gorsuch would be wary of strong oversight there. But that lack of guidance means we do not have a good way to police them, and we know there is relatively widespread abuse. Comparing religious and medical exemptions on this ground – seeing the medical exemption as equivalent – is simply an error.
Justice Gorsuch’s second argument – that the availability of alternative measures for those with medical exemptions means that people with religious exemptions can prevent risk if those with religious exemptions take the same precautions – suffers from the same problem.
Absorbing the very rare medically exempt person with precautions will not pose as big a risk as absorbing the larger number of people who may be religiously exempt. Yes, this is a numbers game. Medical exemptions are rare. Religious exemptions are routinely an order of magnitude larger. Treating this as if it’s a one-to-one issue misses the point.
Further, this second argument – in this paragraph: “This Court has explained that a law is not neutral and generally applicable if it treats ‘any comparable secular activity more favorably than religious exercise.’” Is drawing on a shadow docket case, Tandon v. Newsom, 593 U. S., (2021) (per curiam), raising exactly the problem that concerned Justices Barrett and Kavanaugh in their concurrence – making new law on cases that have not been fully briefed and argued, and with little explanation. It’s a very problematic, non-transparent way for a court to make laws with broad implications.
Comparing the higher risk of harm or death the vaccine poses to those who would use a religious exemption also misses an important point. The risks are not comparable. People without medical exemptions face dismissal whether or not their reasons for refusal are religious. People with medical exemptions are given the exemption because expert authorities conclude they cannot be safely vaccinated.
The implication that the right comparison is one religious exemption to one medical exemption misses the point here. The whole point of a mandate is to increase the overall rate of vaccination among those who can be vaccinated. A limited number, objectively assessable exemptions for people who cannot be safely vaccinated helps that goal – protecting them is part of the reason for the mandate. A hard-to-police, unlimited in number, historically much larger in magnitude religious exemption undermines it.
Justice Gorsuch, once he concluded the standard is strict scrutiny, goes on to apply it. Strict scrutiny requires showing two things. That the state has a compelling interest, and that the measure taken is “the least restrictive means” (in terms of burdening the right in question – here, freedom of religion) to protect that interest. It’s a high bar in any case, and the way it is applied here makes it higher.
First, most courts would conclude that it’s an easy call that protecting citizens from a pandemic that killed over 700,000 Americans and hospitalized millions – and left many more battling long-term harm – is a compelling interest.
Justice Gorsuch takes a much more qualified approach to the issue. He said:
For purposes of resolving this application, 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.” Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___, ___ (2020) (per curiam) (slip op., at 4). 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 vac- cines.1 Today there are three.2 At that time, the country had comparably few treatments for those suffering with the disease. Today we have additional treatments and more appear near. If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.
By itself, warning against never-ending states of emergency is reasonable. But in context, it’s jarring. Highly jarring.
COVID-19 is killing over 1000 people a day in the United States. One of the problems is the low use of vaccines – often due to misinformation – which is one of the things the Maine mandate is trying to reduce. Justice Gorsuch does not say which additional treatments he has in mind and his footnote refers to Merck’s COVID-19 medication, molnupiravir, that is being reviewed for an Emergency Use Authorization. But the reality is that we still do not have great treatments for COVID-19, and again, many people are dying from it each day. Implying that stopping it is not a compelling interest now is disturbing. No, you should not just “assume” it’s a compelling interest. It is.
The discussion of the least restrictive means is also problematic. The state set 90% as the goal of vaccination – which is well in line with vaccine targets in other contexts. Justice Gorsuch pointed out that some hospitals already have higher rates – but ignored the fact that these rates were on the background of a mandate with no religious exemption that was already upheld by more than one court. In other words, this is not good evidence that the mandate is not the least restrictive means. Evidence from elsewhere shows that measures less than vaccines mandates do not reach 90% – we set that out here.
Justice Gorsuch pointed out that other states did not go as far, as an argument against Maine’s approach. But this is problematic. That other states did not go as far as Maine does not mean Maine is wrong; in fact, there is an argument that the other states – or at least some – are doing a lesser job in protecting their population. Federalism means that a state does not have to fall to the level of the state that protects public health least – it can choose to do more to protect its people than other states have.
Finally, just as concerning as what is in the opinion is also what is not in there regarding the need for the mandate. This is about healthcare workers. People who work with the most vulnerable populations, including children and adults with cancer, the immunocompromised, and people who are sick.
They are also a population that had disproportionately high rates of deaths from COVID-19. Nowhere does the dissent give weight to the potential increase in risk, harm, or deaths from unvaccinated workers that are more likely to infect these vulnerable people or their co-workers with COVID-19 than vaccinated peers. That’s just not there, and that is troubling.
Conclusion on the Supreme Court, religious freedom, and vaccine mandates
So where are we? Three justices on the Supreme Court would apply strict scrutiny to the mandate because they do not see a difference between a medically-based exemption and a religious one, are not sure preventing COVID-19 is a compelling interest, do not think high vaccination rates in a healthcare facility, it appears, are very important, and think achieving high rates with a strong mandate means a strong mandate is less important.
Two justices are not willing to go there on emergency relief, but we do not know where these Supreme Court justices stand on the question of religious exemptions and vaccine mandates.
We do not know where the other five justices stand, either.
If you’re not worried, you likely should be.