Following the U.S. Supreme Court’s refusal to grant injunctive relief on behalf of 2,000 Maine health care workers, their attorneys from Liberty Counsel are petitioning the court to review the merits of the case.
Justice Stephen Breyer denied the health care workers’ request for an injunction pending appeal. Justices Amy Coney Berrett and Bret Kavanaugh concurred. Three justices dissented, Neil Gorsuch, Clarence Thomas and Samuel Alito. The remainder did not issue statements.
Democratic Maine Gov. Janet Mills via executive order mandated that all health care workers in the state receive both COVID-19 doses by Friday, Oct. 29, or be terminated. She also refused to accommodate religious exemptions. Under the order, any health care or dental employer that grants employees religious accommodation would also lose their medical licenses.
Liberty Counsel sued on behalf the health care workers and also asked the Supreme Court to intervene.
Breyer denied their request and issued a response in one paragraph. He said, in part, “When this Court is asked to grant extraordinary relief, it considers, among other things, whether the applicant ‘is likely to succeed on the merits.’
“I understand this factor to encompass not only an assessment of the underlying merits but also a discretionary judgment about whether the Court should grant review in the case. …
“Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take – and to do so on a short fuse without benefit of full briefing and oral argument. In my view, this discretionary consideration counsels against a grant of extraordinary relief in this case, which is the first to address the questions presented.”
The response means that granting an injunction pending a cert petition is an extraordinary request that would require the court to rule on the merits before it had the opportunity to hear them presented in oral arguments.
Liberty Counsel also filed a petition for writ of certiorari since there is now a split in the circuit courts. The First Circuit, governing Maine, denied injunctive relief, whereas the Second Circuit, governing New York, granted injunctive relief. Both cases have virtually identical factual and legal issues. Both states’ governors issued executive orders mandating that all health care workers get the COVID-19 shots and granted no religious exemptions even though federal law protecting such exemptions preempts state law.
“The Supreme Court needs to resolve the splits in the circuits and the lower courts,” Liberty Counsel said in a statement. It also points out that only the governors of Maine, New York, and Rhode Island issued executive orders banning employers from even considering religious exemptions submitted by employees.
Liberty Counsel argues that states do not have the authority to order employers to ignore Title VII federal employment law that prohibits religious discrimination.
Justice Gorsuch, joined by Thomas and Alito, wrote in his dissent, “Unlike comparable rules in most other States, Maine’s rule contains no exemption for those whose sincerely held religious beliefs preclude them from accepting the vaccination.
“Yet, with Maine’s new rule coming into effect, one of the applicants has already lost her job for refusing to betray her faith; another risks the imminent loss of his medical practice. The applicants ask us to enjoin further enforcement of Maine’s new rule as to them, at least until we can decide whether to accept their petition for certiorari. I would grant that relief.”
Liberty Counsel Founder and Chairman Mat Staver said after Breyer’s ruling that the case “is far from over.” He noted that Breyer’s decision wasn’t a ruling on the merits.
While he expects that Liberty Counsel will “ultimately prevail on the merits, the tragedy is that today many health care heroes are being terminated. Since 2019, Maine has suffered from a shortage of health care workers and that shortage will increase” as a result of the ruling and the governor’s executive order.
“The people who will suffer are not only the health care workers but patients who need care,” he added.
Gorsuch noted that Maine “does not suggest a worker who is unvaccinated for medical reasons is less likely to spread or contract the virus than someone who is unvaccinated for religious reasons. Nor may any government blithely assume those claiming a medical exemption will be more willing to wear protective gear, submit to testing, or take other precautions than someone seeking a religious exemption.”
Gorsuch concluded that the Maine case “presents an important constitutional question, a serious error, and an irreparable injury. Where many other states have adopted religious exemptions, Maine has charted a different course. There, healthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention.”
This article was originally posted on Liberty Counsel asks SCOTUS to review Maine health care workers’ case