There are a growing number of legal challenges to Gov. Janet Mills’ requirement that healthcare workers receive the COVID-19 vaccine.
Liberty Counsel, a nonprofit religious liberty organization that routlinely files litigation on behalf of clients whose religious freedom it believes has been violated, sued the state of Maine on August 25. Its class action lawsuit was filed against Mills, Department of Health and Human Services Commissioner (DHHS) Jeanne Lambrew, Maine Centers for Disease Control and Prevention (CDC) Director Dr. Nirav Shah and five of Maine’s hospitals.
The suit, which was filed with the Maine branch of the U.S. District Court, has just over 2,000 anonymous plaintiffs whom Liberty Counsel says represent healthcare workers in the state.
On September 7, lawyers working on behalf of the newly-formed Alliance Against Healthcare Mandates filed a lawsuit against Shah and Lambrew on behalf of the Coalition for Healthcare Workers Against Medical Mandates, Maine Stands Up, Mainers for Health and Parental Rights, Maine Health Choice, several named healthcare workers and 100 other anonymous plaintiffs whom the suit says work in the healthcare industry. The suit was filed in Kennebec County Superior Court.
The lawsuits filed by Liberty Counsel and the Alliance Against Healthcare Mandates make different arguments about how the vaccine requirement violates the rights of healthcare workers.
Liberty Counsel’s lawsuit claims that requiring healthcare workers to receive the COVID-19 vaccine violates Title VII of the Civil Rights Act, which states employers can’t discriminate against or terminate employees on the basis of their religious beliefs. It also requires that employers, once they are aware of their employees’ religious beliefs, make reasonable accommodations for them.
Liberty Counsel claims the Mills administration’s mandate puts state law above federal law, which they claim violates the Constitution’s Supremacy Clause.
Because the vaccine mandate originally went into effect on October 1, which meant healthcare workers had to be vaccinated by September 17, the case was expedited and a hearing for a preliminary injunction set for September 10. However, according to Daniel Schmid, an attorney affiliated with Liberty Counsel, that hearing was postponed until September 20 as a result of the administration’s announcement it will delay enforcement of the vaccine requirement until October 29.
Schmid was confident that Liberty Counsel’s lawsuit will be successful. He stated the question being presented to the court is ultimately about whether Title VII applies in Maine, which he believes can only have one answer.
He also said if the suit is not successful in district court, Liberty Counsel will appeal to the First Circuit Court of Appeals and the Supreme Court if necessary. Schmid further stated that Liberty Counsel is asking the administration to make accommodations for individual objections, such as an option that allows healthcare workers to be regularly tested instead of receiving the vaccine.
The lawsuit filed against Shah and Lambrew by the Alliance Against Healthcare Mandates makes several different arguments. It alleges that the vaccines are still experimental and forcing anyone to receive a vaccine is the equivalent of forcing them to participate in a clinical trial.
It also alleges that the CDC rule that adds the COVID-19 vaccine to the list of immunizations healthcare workers are required to receive violates the Maine Administrative Procedure Act because it is a “major substantive rule” passed as an “emergency technical rule.”
Per Maine statute, emergency routine technical rules like the requirement that healthcare workers receive a COVID-19 vaccine can only be in effect for 90 days. Maine CDC has announced its intention to make the change permanent by following the standard rulemaking process.
The alliance’s lawsuit also alleges that the rule violates “the obligation to procure voluntary, informed consent for medical intervention, and the Plaintiff’s right to refuse unwanted medical treatment, as guaranteed by the Fourteenth Amendment to the U.S. Constitution and the Maine Constitution.”
It further claims the rule violates the federal Food, Drug, and Cosmetic Act’s requirement that individuals have the right to refuse medical products.
There are also legislative challenges to the vaccine requirement.
Republicans in the Maine Legislature have filed six bills with the Legislative Council, which is responsible for approving requests to introduce legislation during the legislature’s second session, that would reverse the governor’s vaccine mandate.
The Legislative Council is a 10-member body made up of minority and majority leadership from both chambers. Because it has a Democratic majority, Republican-backed legislation face challenges advancing out of the Legislative Council. The legislature’s second session will also take place after enforcement of the vaccine mandate goes into effect.
However, the legislature will hold a special session to vote on redistricting later this month or in early October, before the administration begins enforcing the vaccine requirement. This, plus the vaccine mandate’s unpopularity, could give Republicans leverage, and there is a possibility that a Republican-backed bill to repeal the mandate could be voted on by the legislature in the near future.