- The Washington Times
Tuesday, October 19, 2021

Supreme Court Justice Stephen G. Breyer rejected a request from Maine health care workers Tuesday evening to halt the state’s requirement for them to get vaccinated or lose their jobs.

It’s the third time a justice has refused to step in and block a vaccine mandate since August.


Maine health care workers had asked the Supreme Court to halt the COVID-19 vaccine mandate in the state, where more than 2,000 nurses and medical techs oppose Gov. Janet Mills’ requirement to get vaccinated by Oct. 29 or get fired.

They say the mandate from Ms. Mills, a Democrat, runs afoul of federal law because it does not provide them with a religious exemption.

Lower courts refused to halt the mandate, so the request went to Justice Breyer at the high court. But he declined to get involved and said the workers could file a new request for an injunction if the 1st U.S. Circuit Court of Appeals refuses to act by Oct. 29. 

Mat Staver, founder of Liberty Counsel, which is representing the medical workers, said he is pleased the high court left the door open to consider the case in the future.

“As of Monday, our case is now fully briefed at the court of appeals. We look forward to an expedited ruling. There is no question that Gov. Janet Mills cannot nullify federal law and the First Amendment to the U.S. Constitution,” he said.

Legal experts say the health care workers face an uphill battle.

The Maine case is the third challenging vaccine mandates to come before the justices. The other two have been batted down.

Justice Amy Coney Barrett refused to grant an injunction in August to students at the University of Indiana who challenged the school’s requirement for them to get the shot.

Justice Sonia Sotomayor this month also rejected a request to block the vaccine requirement for New York City public school teachers.

“What I’m seeing is most courts uphold mandates,” said Dorit Rubinstein Reiss, a professor at UC Hastings College of Law, though she said the issue is unsettled and still working its way through various courts.

She cited a case in New York, Dr. A. v. Hochul, as one of the broadest cases to temporarily limit a state vaccination mandate.

In that dispute, a judge halted New York Gov. Kathy M. Hochul’s requirement for health care workers to get vaccinated without offering religious exemptions. The pause on the mandate is in place while the litigation continues.

Also, a group of athletes won a temporary victory last week when a judge granted them a restraining order from having to get the shots to continue playing sports for Western Michigan University. The student-athletes had sued, claiming their religious exemptions were denied or ignored.

Leslie Gielow Jacobs, a law professor at the University of the Pacific, predicted that most cases will be appealed to the Supreme Court, but the justices will take up only the religious liberty claims where individuals aren’t treated equally.

“The court can choose whether to accept cases for review and usually, with a topic like this one that has so many variations and is evolving, the court will wait for lower courts to reach final decisions and will accept review if the lower courts reach split judgments on an important issue,” Ms. Jacobs said.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.


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