The future of vaccine mandates will likely come down to Brett Kavanaugh and Amy Coney Barrett

By Ian Millhiser

Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett arrive at the inauguration of President Joe Biden at the US Capitol on January 20, 2021.
Jonathan Ernst/Getty Images

On October 29, Maine’s Center for Disease Control and Prevention will start enforcing a rule requiring all health care workers in the state to be vaccinated against Covid-19 — unless the Supreme Court intervenes to stop it.

Does v. Mills is the first significant case to reach the justices that places a Covid-19 vaccination requirement against “religious liberty” claims brought by individuals who refuse vaccination. It is unlikely to be the last.

It’s also significant that Does involves a government mandate requiring certain individuals to be vaccinated. Under existing law, private employers have broad authority to require that their workers get vaccinated. The government, however, is subject to constitutional restrictions that do not apply to private companies.

So while Does isn’t likely going to overhaul the reality facing many Americans — one where their employers implemented vaccine mandates voluntarily — it is likely to shape the government’s role. As the first case to reach the justices, Does is also likely to reveal a great deal about how the conservative Court will balance the public’s interest in reducing the spread of Covid-19 against most justices’ belief that people of faith should enjoy broad legal exemptions.

On the one hand, the Court has thus far not shown much sympathy for anti-vaxxers. Last August, for example, Justice Amy Coney Barrett denied a request by a group of students at Indiana University to block that school’s vaccination requirement. The fact that Barrett acted alone suggests there was little, if any, support for these students among her colleagues.

On the other hand, a majority of the justices were extraordinarily sympathetic to religious plaintiffs that sought exemptions from other public health rules intended to slow the spread of Covid-19. Shortly after Barrett joined the Court, giving Republican appointees a 6-3 majority, the Court handed down its landmark decision in Roman Catholic Diocese of Brooklyn v. Cuomo (2020). That decision allowed many houses of worship to ignore New York’s occupancy restrictions imposed at the height of the pandemic — radically changing the Court’s approach to religious objectors seeking exemptions from the law in the process.

Does sits at the intersection of these two approaches to the pandemic. The plaintiffs in Does are health care workers who say they oppose abortion on religious grounds and claim that the three Covid-19 vaccines available in the US are either manufactured using cells derived from an aborted fetus or were researched using such cells. Accordingly, they seek an exemption from Maine’s requirement that they be vaccinated.

(The Johnson & Johnson vaccine was produced with lab replications of fetal cells. The Moderna and Pfizer vaccines were not developed using fetal cell lines, but their manufacturers did use cell lines derived from fetuses to test whether the vaccines worked.)

Maine’s reason for denying the Does plaintiffs an exemption is straightforward. As the US Court of Appeals for the First Circuit explained in an opinion rejecting the plaintiffs’ arguments, “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 health care workers are also the very people who need to intervene in order to prevent a public health crisis. If Covid-19 spreads like wildfire among these workers because too many people in hospitals and similar settings are unvaccinated — and thus more likely to contract and spread the disease — such an outbreak could disable the very workforce needed to treat Covid-19 patients.

One reason why this case is potentially troubling, moreover, is that if religious exemptions to vaccination are allowed, it will be very difficult to prevent people with political or other nonreligious objections from claiming religious motivations for their opposition to the vaccine.

Few of the major religions in the US teach their adherents not to take the Covid-19 vaccine. The Catholic Church, for example, says that it’s “morally acceptable” to be vaccinated. Pope Francis likened not getting the vaccine to “suicide,” a grave sin. Anti-vax sentiment is more common among white evangelical Protestants, but even there it is a minority view. As of late June, according to the Kaiser Family Foundation, 58 percent of white evangelicals had received at least one dose of the vaccine.

Nevertheless, at least one pastor appears to be profiting by offering documents to donors claiming that the individual has a religious objection to Covid-19 vaccines — in exchange for a donation. And while the law typically requires someone seeking a religious exemption to have a “sincere” religious belief, courts are ill-equipped to prove sincerity. Many judges will simply have to rely on an individual’s word.

Does, in other words, potentially pits the health of entire communities against the religious beliefs of a few health workers — and against some workers who may not even have sincere objections. It is far from clear which of these interests the Supreme Court will care more about.

Does is likely to come down to Justices Kavanaugh and Barrett

In 1990, the Supreme Court handed down a landmark decision about religious objectors in Employment Division v. Smith. Religious objectors, Justice Antonin Scalia wrote for the majority, must follow the same laws everyone else must follow. “To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs,” Scalia warned, risks permitting that individual “by virtue of his beliefs, ‘to become a law unto himself.’”

Instead, people who raise religious objections to a law must obey all “neutral law[s] of general applicability.” The government may not single out a particular religious group for inferior treatment. But so long as a law treats people of all religious beliefs alike, it is constitutional, and everyone must follow it.

Smith sparked an enormous backlash, and many religious conservatives continue to revile it because they believe it provides inadequate legal protections to people of faith. Indeed, just last term the Court heard Fulton v. City of Philadelphia (2021), which asked the justices to overrule Smith.

Although Justices Clarence Thomas and Neil Gorsuch joined an opinion written by Justice Samuel Alito arguing that Smith should be overruled, a majority of the Court punted on most of the important issues presented by Fulton. Barrett, however, penned a brief concurring opinion explaining that, while she found many of the arguments against Smith “compelling,” she was not yet sure “what should replace Smith.” Her opinion was joined in full by Justice Brett Kavanaugh.

Yet, while Barrett’s Fulton concurrence left Smith in a bit of a limbo state — and made clear that she and Kavanaugh are the most likely fifth votes in religious liberty cases — Barrett’s uncertain approach was a bit surprising because she and Kavanaugh made deep cuts against Smith earlier in the same term.

Recall that Smith requires religious objectors to follow a “neutral law of general applicability.” In both Roman Catholic Diocese and a related case, Tandon v. Newsom (2021), the Court — with Kavanaugh and Barrett in the majority — ruled that places of worship should be exempt from certain state public health rules imposing limits on how many people may worship at the same time.

“Government regulations are not neutral and generally applicable,” the five most conservative justices wrote in Tandon, “whenever they treat any comparable secular activity more favorably than religious exercise.” But the Court also defined what constitutes “comparable secular activity” very broadly in Tandon and Roman Catholic Diocese.

Prior to those two decisions, the Court permitted anti-Covid regulations to impose occupancy limits on places of worship so long as the same rules were imposed on similar secular institutions. In May 2020, for example, the Court upheld a California rule imposing occupancy limits on houses of worship. As Chief Justice John Roberts explained, the California rule was acceptable because “similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.”

But then Justice Ruth Bader Ginsburg died, and Republican appointees gained a supermajority on the Supreme Court. The new majority ruled in Roman Catholic Diocese that places of worship could be exempt from public health rules if different rules apply to businesses — that are nothing like religious institutions — where large crowds of people gather to socialize, chant, and sing, such as “acupuncture facilities, camp grounds, [and] garages.”

Roman Catholic Diocese suggests, in other words, that religious institutions must be subject to the most favorable rules applied to any other institution, even if there are very good policy reasons to treat these institutions differently. Roman Catholic Diocese deemed it irrelevant that public health experts believed that houses of worship — like any other place where large groups of people gather for extended periods of time in an auditorium-like setting — are more likely to host superspreader events than, say, a grocery store.

So what does all of this mean for Maine’s vaccine rules?

Beginning on October 29, Maine will require all health care workers to be fully vaccinated — with one lonely exception. Health care workers who could suffer health consequences if they received the Covid-19 vaccine, such as someone with a severe allergy to the vaccine that might prove fatal, are exempt from the requirement.

The plaintiffs in Does, relying on decisions like Roman Catholic Diocese, claim this singular exemption to the vaccine requirement forces the state to also exempt people with religious objections. “Maine has plainly singled out religious employees who decline vaccination for religious reasons for especially harsh treatment,” the Does plaintiffs claim in a brief to the justices, “… while favoring and accommodating employees declining vaccination for secular, medical reasons.”

It’s worth pausing to consider just what these plaintiffs are arguing. They claim that if the state offers any exemption whatsoever to the vaccine requirement — even an exemption for people who will literally die if they are vaccinated — then it must also provide an exemption to religious objectors.

The First Circuit held that policymakers do not have to make such an impossible choice. Quoting language from Fulton, the First Circuit noted that state policies run afoul of the Constitution when they prohibit “religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.”

But the purpose of Maine’s vaccine mandate is to promote the public health. Requiring health care workers, regardless of their religious beliefs, to become vaccinated advances that goal. By contrast, requiring people who could suffer serious health consequences from vaccination to risk their lives and their health does not. There’s no valid medical rationale for requiring someone to risk a serious allergic reaction or similar consequence.

Will that be enough to convince Kavanaugh or Barrett? The truth is that we don’t know yet.

It should be noted, however, that Does presents the strongest possible case for not allowing religious exemptions to a vaccine mandate. It is, after all, a case about workers on the front lines of a pandemic. The public health consequences of not vaccinating these workers are likely to vastly exceed the consequences of, say, not vaccinating college students or police officers.

In other words, should the Court rule in the plaintiffs’ favor in Does, it’s likely to open up a significant loophole to vaccination requirements.