Maine Health Care Workers Take Vax Mandate to US Supreme Court

Orange County nurses choosing not to recieve coronavirus vaccinations gather in Huntington Beach, Calif., on Sept. 2, 2021. John Fredricks/The Epoch Times

The hardline COVID-19 vaccination policies of Maine’s Democrat governor, Janet Mills, the state health care bureaucracy, and four major hospital systems, are being challenged in the United States Supreme Court.

The cause of action arose on August 12, 2021, when Ms. Mills announced a vaccination mandate and threatened to yank the licenses and fine any employer of health care workers who did not enforce it.

Effective September 1, 2021, the new mandate eliminated all exemptions based on religious grounds.

The vaccination requirement forced the state’s health care workers whose religious convictions would not permit them to take the shot, to either be vaccinated or be fired.

According to a study by the Maine Policy Institute, nearly ten percent of Maine’s health care workers refused the COVID-19 vaccine and were terminated. The action further aggravated the state’s pre-pandemic nursing shortage.

Valued Employees or Expendables?

Mat Staver, founder of Liberty Counsel, a non-profit legal foundation representing seven discharged health care professionals, told The Epoch Times, “Not only did their employers kick them to the curb, but they dismissed them for insubordination, thereby ensuring the nurses could not draw unemployment compensation.”

Ms. Mills’ mandate cast a broad net by defining “health care worker” as “any individual employed by a hospital, multi-level health care facility, home health agency, nursing facility, residential care facility, and intermediate care facility for individuals with intellectual disabilities…those employed by emergency medical service organizations or dental practices.”

Mr. Staver said that because of the broad mandate, the nurses found it impossible to get another job in the health care profession within the state of Maine.

Maine Gov. Janet Mills in 2019. Rebecca Hammel/U.S. Senate/Public Domain

The chief plaintiff in the case, Alicia Lowe, a head operating room nurse for 20 years, is out “working construction to make ends meet,” said Mr. Staver. “Many people are still suffering.”

Fighting for Their Rights

In an effort to defend their constitutional rights and to keep their jobs, Ms. Lowe and a group of fired health care workers initially filed suit in U.S. District Court.

After losing their case in the district court, Ms. Lowe and her co-plaintiffs appealed to the U.S. Circuit Court of Appeals (First Circuit), where they won on their free exercise of religion argument but lost on their contention that any state law or regulation must comply with the “due hardship and reasonable accommodation” employment provisions of Title VII of the Civil Rights Act of 1964.

According to Mr. Staver, seven other federal circuit courts have handed down decisions contrary to the First Circuit’s ruling on Title VII compliance.

On August 15, 2023, Liberty Counsel announced it had filed a writ certiorari—a legal process by which the U.S. Supreme Court is asked to review the actions of lower courts or government agencies.

A Familiar Tactic

The case, Alicia Lowe et al. v. Janet Mills et al., is still moving forward despite a recent proposal by the Maine Department of Health and Human Services (DHHS) to remove the COVID-19 vaccination mandate from the state’s health care workers.

If, after a period of public comment, the proposal is approved, it would take effect at the end of this year.

Coming shortly after the appeals court ruled in the nurses’ favor and reversed the district court’s decision on their free exercise of religion claim, the creation and timing of the DHHS proposal came as no surprise to Mr. Staver.

“It’s a familiar tactic by Maine Democrats led by Governor Mills. They have done this kind of thing before. ‘Nothing to see here. No worries. We’re going to rescind the mandate.’

“I think she saw the 3-0 reversal by the court of appeals and does not want to defend the case and open the state up to discovery. But guess what? With our filing, the state government is now open to discovery,” Mr. Staver said.

The Governor’s Rationale

Ms. Mills has not issued a formal statement about the appeal to the U.S. Supreme Court by Liberty Counsel.

However, after a previous round of the many legal challenges to her vaccination mandate, Ms. Mills stated, “Vaccinations are the best tool we have to protect the lives and livelihoods of Maine people and to curb this pandemic…Anyone who is placed in the care of a health care worker has the right to expect, as do their families, that they will receive high-quality, safe care from fully vaccinated staff.

“This rule protects health care workers, their patients, and our health care capacity in the face of this deadly virus.

An Act of Love

“As Pope Francis said, getting vaccinated is an ‘act of love,’” said Ms. Mills.

In a press release announcing Liberty Counsel’s Supreme Court appeal, Mr. Staver said, “Governor Janet Mills and health officials have acted as if Maine is exempt from federal law by denying these health care workers’ religious exemptions.

“Since there is now a conflict in the courts regarding Title VII anti-discrimination protections, we are asking the U.S. Supreme Court to review this case.

“Federal law and the rights guaranteed by the U.S. Constitution cannot be set aside.”

Mat Staver, founder and chairman of Liberty Counsel. Courtesy of Liberty Counsel

Two Legal Questions

One of two key questions that Liberty Counsel is asking the High Court to answer is whether compliance with state laws directly contrary to Title VII’s requirement to provide reasonable accommodation may serve as an undue hardship justifying an employer’s noncompliance with Title VII of the Civil Rights Act of 1964.

“Do you know what undue hardships the state claims employers in Maine are facing due to Mills’s mandate? The very fines and license seizures they would incur by violating her mandate,” said Mr. Staver to The Epoch Times.

The second key question is whether a state law that requires employers to deny without any consideration all requests by employees for a religious accommodation, contrary to Title VII’s religious nondiscrimination provision, is preempted by Title VII and the Supremacy Clause of Article VI, paragraph 2 of the U.S. Constitution.

Under its provisions, the federal constitution and most federal laws take precedence over state laws, regulations, and even state constitutions.

Mills’s vaccination mandate (as upheld by the First Circuit Court of Appeals) has created a conflict between state laws or regulations and federal law and constitutional rights. It has put Maine employers in a very difficult position—to obey one is to violate the other.

“Our case is prepared and ready to go, and we believe there is a good chance the Supreme Court will take it,” Mr. Staver said.