Doe v. Mills

16 F.4th 20

Jane DOES 1-6; John Does 1-3; Jack Does 1-1000; Joan Does 1-1000, Plaintiffs, Appellants,

v.Janet T. MILLS, in her official capacity as Governor of the State of Maine ; Jeanne M. Lambrew, in her official capacity as Commissioner of the Maine Department of Health and Human Services; Nirav D. Shah, in his official capacity as Director of the Maine Center for Disease Control and Prevention; MaineHealth; Genesis Healthcare of Maine, LLC ; Genesis Healthcare, LLC; Northern Light Health Foundation; MaineGeneral Health, Defendants, Appellees.

No. 21-1826

United States Court of Appeals, First Circuit.

October 19, 2021

Mathew D. Staver, Horatio G. Mihet, Roger K. Gannam, Daniel J. Schmid, and Liberty Counsel on brief for appellants.

Kimberly L. Patwardahan, Assistant Attorney General, Valerie A. Wright, Assistant Attorney General, Thomas A. Knowlton, Deputy Attorney General, Aaron M. Frey, Attorney General, on brief for appellees Janet T. Mills, Jeanne M. Lambrew, and Nirav D. Shah.

James R. Erwin, Katherine I. Rand, and Pierce Atwood LLP on brief for appellees MaineHealth, Genesis Healthcare of Maine, LLC, Genesis Healthcare, LLC, and MaineGeneral Health.

Ryan P. Dumais, Katherine L. Porter, and Eaton Peabody on brief for appellee Northern Light Health Foundation.

Before Howard, Chief Judge, Lynch and Barron, Circuit Judges.

LYNCH, Circuit Judge.

Faced with COVID-19's virulent delta variant and vaccination rates among healthcare workers too low to prevent community transmission, Maine's Center for Disease Control ("Maine CDC") promulgated a regulation effective August 12, 2021, requiring all workers in licensed healthcare facilities to be vaccinated against the virus. Under state law, a healthcare worker may claim an exemption from the requirement only if a medical practitioner certifies that vaccination "may be medically inadvisable." Me. Rev. Stat. tit. 22, § 802(4-B) (West 2021). Maine has mandated that its healthcare workers be vaccinated against certain contagious diseases since 1989. It has not allowed religious or philosophical exemptions to any of its vaccination requirements since an amendment to state law in May 2019 (which took effect in April 2020), and the COVID-19 mandate complies with that state law.

Several Maine healthcare workers (and a healthcare provider who runs his own practice) sued, arguing that the vaccination requirement violates their rights including those under the Free Exercise Clause of the U.S. Constitution. They sued the Governor, the commissioner of the Maine Department of Health and Human Services ("Maine HHS"), and the director of Maine CDC alleging violations of the Free Exercise Clause, Supremacy Clause, Equal Protection Clause, and 42 U.S.C. § 1985. They also sued several Maine hospitals, which employ seven of the nine appellants, alleging violations of the Supremacy Clause, Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1985.

The appellants sought a preliminary injunction to prevent enforcement of the regulation against them. The district court denied their motion. Does 1-6 v. Mills, No. 1:21-cv-242-JDL, ––– F.Supp.3d ––––, 2021 WL 4783626 (D. Me. Oct. 13, 2021).

We affirm.

I.

Maine has long required that healthcare workers be vaccinated against infectious diseases. See 1989 Me. Laws ch. 487, § 11. Prior to 2019, state law exempted workers from vaccination in three circumstances: when vaccination was medically inadvisable, contrary to a sincere religious belief, or contrary to a sincere philosophical belief. Id. In 2019, the state responded to declining vaccination rates by amending its law to allow for only the medical exemption. ¹

2019 Me. Laws ch. 154, § 9 (codified at Me. Rev. Stat. Ann. tit. 22, § 802 (2021) ); see Hearing on LD 798, An Act to Protect Maine Children and Students from Preventable Diseases by Repealing Certain Exemptions from the Laws Governing Immunization Requirements Before the J. Standing Comm. on Educ. & Cultural Affs., 129th Legis., 1st Reg. Sess. (Me. 2019) (statements of Rep. Tipping, Rep. McDonald, and Maine CDC Acting Dir. Beardsley); House Rec. H-392, 393-94 (Me. Apr. 23, 2019) (statement of Rep. Tipping). The bill's sponsor explained that one key rationale for the change was to protect the immunocompromised "who will never achieve the immunities needed to protect them and [who] rely on their neighbors' vaccinations." Hearing on LD 798, supra (statement of Rep. Tipping). The law went into effect in 2020, after nearly three-quarters of voters rejected a referendum seeking to veto the law. In April 2021, Maine CDC updated its mandatory vaccination regulations to reflect the statutory changes. 364 Me. Gov't Reg. 26 (LexisNexis May 2021); Code Me. R. tit. 10-144, ch. 264, § 3 (West 2021). In adopting that new rule, Maine explained that it was acting to reduce the "risk for exposure to, and possible transmission of, vaccine-preventable diseases resulting from contact with patients, or infectious material from patients." At the time, the rule required vaccination (without religious or philosophical exemption) against measles, mumps, rubella, chickenpox, hepatitis B, and influenza. Code Me. R. tit. 10-144, ch. 264, § 2. Contrary to the appellants' claims, Maine changed its vaccination laws to eliminate the religious and philosophical exemptions well before the COVID-19 pandemic was rampant.

Maine has articulated a strong interest in protecting the health of its population and has taken numerous steps, both before and after the development of the COVID-19 vaccines, to do so.² Maine's population is particularly vulnerable to COVID-19 because it has the largest share of residents aged 65 and older in the country. U.S. Census Bureau, 65 and Older Population Grows Rapidly as Baby Boomers Age, Release No. CB20-99 (June 25, 2020), https://www.census.gov/newsroom/press-releases/2020/65-older-population-grows.html. After COVID-19 vaccines became available, Maine encouraged all its residents to be vaccinated and took particular steps along those lines addressed to health care workers. Maine took the following steps:

• Starting in December 2020, Maine HHS and Maine CDC held regular information sessions with clinicians to educate them about the vaccines including plans for vaccine distribution and methods for addressing vaccine hesitancy.

• Starting that same month, Maine HHS and Maine CDC convened a working group to study the most effective ways of educating clinicians on the vaccines.

• Given the limited vaccine availability in December 2020 and January 2021, Maine gave priority to frontline healthcare workers over other groups in the population during the first stage of vaccine distribution. Hospitals offered on-site vaccination to their staff and other eligible recipients.

• Because COVID-19 poses greater risks of infection and death to older people, Maine CDC prioritized older residents as well. It started with residents older than seventy and then expanded first to residents older than sixty and then to residents older than fifty.

• In partnership with Maine HHS and Maine CDC, hospitals provided several large public vaccination sites across the state. Maine HHS and Maine CDC helped staff the sites with public health, healthcare, and emergency-response volunteers.

• Maine CDC also distributed vaccines to healthcare facilities, EMS organizations, and pharmacies across the state.

• From March 2021, Maine HHS provided free transportation to vaccination sites to residents who could not get to the sites.

• From April to June, Maine HHS and Maine CDC offered a mobile vaccination unit in rural and underserved areas of the state.

• For twenty days in May, Maine HHS offered incentives to any Mainer who got his or her first dose of a COVID-19 vaccine. Those eligible could choose between a complimentary fishing license, a complimentary hunting license, a Maine Wildlife Park Pass, a $20 L.L. Bean gift card, a ticket to a Portland Sea Dogs game, or an Oxford Plains Speedway Pass.

• In June, Governor Mills announced a prize sweepstakes, allowing all vaccinated residents to enter and tying the prize to the number of residents vaccinated by Independence Day weekend. On July 4, a dialysis dietitian from Winslow won nearly $900,000. Press Release, Office of Gov. Mills, Governor Mills Announces Winner of Don't Miss Your Shot: Vaccinationland Sweepstakes (July 4, 2021), https://www.maine.gov/governor/mills/news/governor-mills-announces-winner-dont-miss-your-shot-vaccinationland-sweepstakes-2021-07-04.³

By the end of July 2021, 65.0% of Maine residents had received at least one dose of a COVID-19 vaccine. However, the geographic distribution of vaccination was, and remains, uneven throughout the state. See Maine CDC, COVID-19 Vaccination Dashboard: COVID Vaccination by County Listing, (last visited Oct. 15, 2021) https://www.maine.gov/covid19/vaccines/dashboard; see also Pietrangelo, 15 F.4th at 106 n.1 ("The accuracy of state and federal vaccine distribution data cannot be reasonably questioned ...."). Many counties report much lower vaccination rates. Maine CDC, COVID-19 Vaccination Dashboard, supra. Efforts to reach the elderly population have also shown geographic differences. See id.

Despite these measures, Maine faced a severe crisis in its healthcare facilities when the delta variant hit the state.⁴ According to Maine CDC, the delta variant is more than twice as contagious as previous variants and may cause more severe illness than previous variants. An individual infected with the delta variant may transmit it to others within twenty-four to thirty-six hours of exposure. Those conditions threaten the entire population of the state. But health care facilities are uniquely susceptible to outbreaks of infectious diseases like COVID-19 because medical diagnosis and treatment often require close contact between providers and patients (who often are medically vulnerable). And outbreaks at healthcare facilities hamper the state's ability to care for its residents suffering...