Petition for Writ of Certiorari — John Does 1–3, et al., Petitioners v. Janet T. Mills, Governor of Maine, et al.

Supreme Court briefNov 11, 2021

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No. _________

IN THE

Supreme Court of the United States

JANE DOES 1–6, et al.,

Petitioners,

JANET T. MILLS, IN HER OFFICIAL CAPACITY AS

GOVERNOR OF THE STATE OF MAINE, et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the First Circuit

PETITION FOR WRIT OF CERTIORARI

Mathew D. Staver

Counsel of Record

Anita L. Staver

Horatio G. Mihet

Roger K. Gannam

Daniel J. Schmid

LIBERTY COUNSEL

P.O. Box 540774

Orlando, FL 32854

(407) 875-1776

court@LC.org

Counsel for Petitioners

QUESTIONS PRESENTED

“[E]ven in a pandemic, the Constitution cannot

be put away and forgotten.” Roman Catholic Diocese

of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020). More

to the point, “[e]ven in times of crisis—perhaps

especially in times of crises—we have a duty to hold

governments to the Constitution.” South Bay United

Pentecostal Church v. Newsom, 141 S. Ct. 716, 718

(2021) (Gorsuch, J.). Thus, as Justice Gorsuch wrote

about this dispute,

This 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

their

constitutionally

protected religious beliefs. Their plight is

worthy of our attention.

(App. 009.)

The questions presented for review are:

1. Whether a state governor’s order

mandating that private healthcare employers, on

penalty of revocation of their business licenses,

terminate their healthcare workers who are not fully

vaccinated for COVID-19, and deny any worker’s

request for religious accommodation from the

mandate while allowing medical exemptions from

the mandate, violates the employers’ and employees’

rights under the Free Exercise Clause of the First

Amendment.

2. Whether, under the Supremacy Clause of

the United States Constitution, a state governor’s

order mandating that private healthcare employers,

on penalty of revocation of their business licenses,

terminate their healthcare workers who are not fully

vaccinated for COVID-19 with no opportunity for

any worker to seek a religious accommodation from

the mandate, is preempted by the religious

accommodation provisions of Title VII of the Civil

Rights Act of 1964.

3. Whether Article III courts have incidental

equitable powers to grant preliminary injunctive

relief to employees in aid of their Title VII remedies

where the harm suffered by the employees in the

absence of injunctive relief has a chilling effect on

their religious free exercise and protection from

religious discrimination.

iii

PARTIES

Petitioners are Jane Does 1–6, John Does 1–3,

Jack Does 1–1000, and Joan Does 1–1000.

Respondents are Governor 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, and

MaineGeneral Health.

DIRECTLY RELATED PROCEEDINGS

JANE DOES 1–6, et al. v. MILLS, et al., No. 21A90,

Order Denying Emergency Application for Writ of

Injunction (U.S. Oct. 29, 2021), reprinted in the

Appendix at 1a-11a.

JANE DOES 1–6, et al. v. MILLS, et al., No. 21-1826

(1st Cir. Oct. 19, 2021), Opinion and Order Affirming

Denial of Motion for Preliminary Injunction,

reprinted in the Appendix at 12a-43a.

JANE DOES 1–6, et al. v. MILLS, et al., No. 21-1826

(1st Cir. Oct. 15, 2021), Order denying Emergency

Motion for Injunction Pending Appeal, reprinted in

the Appendix at 46a-47a.

JANE DOES 1–6, et al. v. MILLS, et al.. No. 1:21-cv242-JDL (D. Me. October 13, 2021), Order Denying

Motion for Injunction Pending Appeal, reprinted in

the Appendix at 48a-49a.

JANE DOES 1–6, et al. v. MILLS, et al.. No. 1:21-cv242-JDL (D. Me. October 13, 2021), Order Denying

Motion for Preliminary Injunction, reprinted in the

Appendix at 51a-98a

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................................... i

PARTIES ................................................................. iii

DIRECTLY RELATED PROCEEDINGS............... iii

TABLE OF CONTENTS ...........................................v

TABLE OF AUTHORITIES ................................... ix

OPINIONS AND ORDERS BELOW ....................... 1

JURISDICTION ....................................................... 1

CONSTITUTIONAL

AND

STATUTORY

PROVISIONS INVOLVED ...................................... 1

STATEMENT OF THE CASE ................................. 2

INTRODUCTION ............................................ 2

FACTUAL BACKGROUND ............................ 7

The Governor’s COVID-19 Vaccine

Mandate. .................................................. 7

Petitioners’ Sincerely Held Religious

Beliefs

Against

the

COVID-19

Vaccines. ................................................... 8

Petitioners’ Willingness to Comply

With Alternative Measures. .................. 12

Respondents’ Denials That Federal

Law Applies In Maine. ........................... 12

Respondents

Allow

Nonreligious,

Medical Exemptions............................... 16

PROCEDURAL HISTORY ............................ 17

REASONS FOR GRANTING THE PETITION .... 18

THE

PETITION

INVOLVES

IMPORTANT QUESTION OF FEDERAL

LAW THAT HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT.

........................................................................ 18

THE FIRST CIRCUIT’S DECISION

BELOW CONFLICTS WITH DECISIONS

FROM THE THIRD, SIXTH, AND

SEVENTH CIRCUITS, AND CONFLICTS

WITH THE DECISIONS OF NUMEROUS

FEDERAL COURTS ON THE SAME

QUESTION. ................................................... 22

The Third, Sixth, and Seventh Circuits

Have All Held That Granting a

Nonreligious Medical Exemption While

Prohibiting Religious Exemptions

Violates the First Amendment. ............. 22

The First Circuit Held That States May

Offer

Nonreligious

Medical

Exemptions

While

Prohibiting

Religious

Exemptions

Without

Violating the First Amendment. ........... 29

THE FIRST CIRCUIT’S DECISION

APPROVING MAINE’S ESPECIALLY

HARSH

AND

DISCRIMINATORY

vii

TREATMENT OF PETITIONERS’ FIRST

AMENDMENT LIBERTIES DIRECTLY

CONFLICTS WITH THIS COURT’S

PRECEDENTS. .............................................. 31

THE FIRST CIRCUIT’S DECISION

CONFLICTS WITH THIS COURT’S

PRECEDENTS ON THE IMPORTANT

FEDERAL QUESTION OF WHETHER

THE SUPREMACY CLAUSE MANDATES

THAT

EMPLOYERS

PROVIDE

RELIGIOUS ACCOMMODATIONS TO

EMPLOYEES

REGARDLESS

CONTRARY STATE LAWS. ......................... 34

THE FIRST CIRCUIT’S HOLDING THAT

PRELIMINARY INJUNCTIVE RELIEF IS

INAPPROPRIATE IN TITLE VII CASES

DIRECTLY CONFLICTS WITH THIS

COURT’S PRECEDENTS AND THE

PRECEDENTS OF THE SECOND AND

FIFTH CIRCUITS.......................................... 36

The Second and Fifth Circuits Have

Held That Preliminary Injunctive

Relief Is Appropriate in Title VII Cases

to Preserve the Status Quo. ................... 36

The First Circuit’s Decision Conflicts

With the Decisions of the Second and

Fifth Circuits. ......................................... 39

CONCLUSION ....................................................... 40

viii

TABLE OF APPENDICES

APPENDIX A — ORDER OF DENIAL OF

THE SUPREME COURT OF THE

UNITED STATES, DATED OCTOBER 29,

2021 ………………………………………………….1a

APPENDIX B — OPINION AND ORDER

AFFIRMING DENIAL OF MOTION FOR

PRELIMINARY INJUNCTION OF THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT, FILED

OCTOBER 19, 2021 ……………………………..12a

APPENDIX C — PROCEEDINGS AND

ORDERS OF THE UNITED STATES

COURT OF APPEALS FOR THE FIRST

CIRCUIT, DOCKETED OCTOBER 15,

2021 ………………………………………………..44a

APPENDIX D — ORDER DENYING EM E R

G ENC Y MO T I ON F OR INJUNCTION

PENDING APPEAL OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT, FILED OCTOBER 15,

2021 ………………………………………………..46a

APPENDIX E — ORDER DENYING

MOTION FOR INJUNCTION

PENDING …………………………………………48a

APPENDIX F — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

DISTRICT OF MAINE, FILED OCTOBER

13, 2021 ……………………………………………51a

TABLE OF AUTHORITIES

Cases

Bailey v. Delta Air Lines, Inc., 722 F.2d 942

(1st Cir. 1983) ...............................................36,37

Burlington Northern & Santa Fe Railway Co. v.

White, 548 U.S. 53 (2006) ................................. 38

Dahl v. Bd. of Trustees of W. Mich. Univ., No.

21-2945, 2021 WL 4618519

(6th Cir. Oct. 7, 2021) .........................25,26,27,31

Dr. A v. Hochul, No. 1:21-CV-1009, 2021 WL

4734404 (N.D.N.Y. Oct. 12, 2021) ................28,29

Drew v. Liberty Mut. Ins. Co., 480 F.2d 69

(5th Cir. 1973) ...............................................36,38

Fraternal Order of Police Newark Lodge No. 12

v. City of Newark, 170 F.3d 359

(3d Cir. 1999) ....................... 22,23,24,25,26,30,31

Haywood v. Drown, 556 U.S. 729 (2009) .....5,6,35,36

Hillsborough Cnty. v. Automated Med. Labs.,

Inc., 471 U.S. 707 (1985) ...........................6,35,36

Hobby Lobby Stores, Inc. v. Burwell, 573 U.S.

682 (2014) ............................................................ 5

Kansas v. Garcia, 140 S. Ct. 791 (2020) ................ 35

Klaassen v. Trustees of Indiana University,

7 F.4th 592 (7th Cir. 2021) ......................27,28,31

Magliulo v. Edward Via Coll. of Osteopathic

Medicine, No. 3:21-cv-2304, 2021 WL

3679227 (W.D. La. Aug. 17, 2021) ................... 29

Murphy v. NCAA, 138 S. Ct. 1461 (2018) .........35,36

Roman Catholic Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020).......................... i,21,26,32,33

Sheehan v. Purolator Courier Corp.,

676 F.2d 877 (2d Cir. 1981) .....................36,37,38

South Bay United Pentecostal Church v.

Newsom, 141 S. Ct. 716 (2021) .................. i,32,33

Tandon v. Newsom, 141 S. Ct. 1294 (2021) ......32,33

We the Patriots USA, Inc. v. Hochul, Nos.

21-2179, 21-2566, 2021 WL 5103443

(2d Cir. Nov. 1, 2021) ........................................ 29

We the Patriots USA, Inc. v. Hochul, Nos.

21-2179, 21-2566, 2021 WL 5121983

(2d Cir. Nov. 4, 2021) ........................................ 29

Constitutional Provisions

U.S. Const. amend I ........................................ passim

U.S. Const. Art. III ................................................. 36

U.S. Const. Art. VI, cl. 2

(Supremacy Clause) .............................1,2,5,34,35

Statutes

22 M.R.S. § 802 ........................................................ 8

28 U.S.C. § 1254 ....................................................... 1

42 U.S.C. § 2000e ..................................................... 6

42 U.S.C. § 2000e-2 .................................................. 6

Title VII of the Civil Rights Act of 1964

(42 U.S.C. §§ 2000e to 2000e-17)............... passim

Other Authorities

2 Timothy.................................................................. 9

10-144 C.M.R. Ch. 264 ............................................. 8

EEOC, EEOC Issues Updated COVID-19

Technical Assistance (Oct. 25, 2021) ................ 20

EEOC, What You Should Know About

COVID-19 and the ADA, the Rehabilitation

Act, and Other EEO Laws ................................ 20

Exodus ...................................................................... 9

Genesis ...................................................................... 9

Isaiah ........................................................................ 9

La. Dept. of Public Health, You Have Questions,

We Have Answers: COVID-19 Vaccine FAQ

(Dec. 12, 2020)...............................................10,11

Luke ........................................................................ 10

Matthew .................................................................. 10

xii

N.D. Health, COVID-19 Vaccines & Fetal Cell

Lines (Apr. 20, 2021).....................................10,11

Psalms ...................................................................... 9

OPINIONS AND ORDERS BELOW

The First Circuit’s opinion affirming the denial

of Petitioners’ motion for preliminary injunction is

not yet published in the Federal Reporter, but is

reported at 2021 WL 4860328 and reprinted in the

Appendix at 1a-11a. The First Circuit’s order

denying Petitioners’ request for an emergency

injunction pending appeal is unpublished, but is

reported at 2021 WL 4845812 and reprinted in the

Appendix at 46a. The district court’s order denying

Petitioners’ motion for preliminary injunction is not

yet published in the Federal Supplement, but is

reported at 2021 WL 4783626.

JURISDICTION

The First Circuit entered its opinion and

judgment on October 19, 2021. Petitioners invoke

this Court’s jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The First Amendment to the United States

Constitution provides, in relevant part, “Congress

shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech . . . .” U.S. Const.

amend. I.

The Supremacy Clause of the United

States Constitution provides, “This Constitution,

and the Laws of the United States which shall be

made in Pursuance thereof; and all Treaties made,

or which shall be made, under the Authority of the

United States, shall be the supreme Law of the

Land; and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of

any State to the Contrary notwithstanding.” U.S.

Const. Art. VI, Cl.2.

Title VII of the Civil Rights Act of 1964

provides, in relevant part, “It shall be an unlawful

employment practice for an employer . . . to fail or

refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual

with respect to his compensation, terms, conditions,

or privileges of employment because of such

individual’s . . . religion,” 42 U.S.C. § 2000e-2(a),

and, “The term ‘religion’ includes all aspects of

religious observance and practice, as well as belief,

unless an employer demonstrates that he is unable

to reasonably accommodate to an employee’s or

prospective employee’s religious observance or

practice without undue hardship on the conduct of

the employer's business.” 42 U.S.C. § 2000e(j).

STATEMENT OF THE CASE

INTRODUCTION

Petitioners are all healthcare workers in Maine

who have sincerely held religious beliefs that

preclude them from accepting any of the available

COVID-19 vaccines because of the vaccines’

connections to aborted fetal cell lines, and for other

religious reasons that have been articulated to

Respondents. Since COVID-19 first arrived in

Maine, Petitioners have risen every morning,

donned their personal protective equipment, and

fearlessly marched into hospitals, doctor’s offices,

emergency

rooms,

operating

rooms,

and

examination rooms with one goal: to provide quality

health care to those suffering from COVID-19 and

every other illness or medical need. They did it

bravely and with honor. They answered the call of

duty to provide health care to the people who needed

it the most and worked tirelessly to ensure that

those ravaged by the pandemic were given

appropriate care. All Petitioners seek the

opportunity to continue providing the health care

they have provided to patients throughout the

pandemic and their entire careers, and to do so

under the same protective measures that have

sufficed for them to be considered superheroes for the

last 18 months.

As Justice Gorsuch has already recognized:

Maine has adopted a new regulation

requiring certain healthcare workers to

receive COVID-19 vaccines if they wish to

keep their jobs. 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. The applicants

before us are a physician who operates a

medical practice and eight other

healthcare workers. No one questions that

these individuals have served patients on

the front line of the COVID-19 pandemic

with bravery and grace for 18 months now.

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.

Does v. Mills, No. 21A90, 2021 WL 5027177, at *1

(U.S. Oct. 29, 2021) (Gorsuch, J., dissenting)

(citation omitted).

Regardless of whether Maine sees fit to extend

protections to religious objectors under its own

statutory framework, federal law demands that

Petitioners and all employees in Maine receive

protections for their sincerely held religious beliefs.

This Court should hold Maine to the bargain it made

with its citizens when it joined the union and ensure

that Maine extends the required protections that

federal law demands. A state that has demanded so

much of its healthcare heroes owes them nothing

less than the full measure of its commitment to

constitutional principles. Anything less would be

desecrating the sacrifices these medical heroes made

for

untold

numbers

people—including

Respondents—when the call of duty demanded it of

them. The Petition should be granted.

The central issue before the Court can be boiled

down to a simple question: Does federal law apply in

Maine? Though the question borders on the absurd,

so does Respondents’ answer to it. Under

Respondents’ regulation, Petitioners were all told to

get a COVID-19 vaccine by October 29, 2021 or be

terminated,

and

that

protections

considerations are given to religious beliefs in

Maine. Respondents have explicitly claimed that

federal law does not protect healthcare workers in

Maine. Employer Respondents various responded to

Petitioners’ requests for religious accommodation as

follows:

•

“I can share MaineHealth’s view

that federal law does not supersede

state law in this instance.” (V.

Compl. ¶ 87.)

•

“[W]e are no longer able to

consider religious exemptions

for those who work in the state

of Maine.” (V. Compl. ¶ 84.)

•

“All MaineGeneral employees will

have to be vaccinated against

COVID-19 by Oct. 1 unless they

have a medical exemption. The

mandate also states that only

medical exemptions are allowed, no

religious exemptions are allowed.”

(V. Compl. ¶ 93.)

•

“Allowing for a religious exemption

would be a violation of the state

mandate issued by Governor Mills.

So, unfortunately, that is not an

option for us.” (V. Compl. ¶ 94.)

The correct answer to the question before the

Court is obvious: federal law and the United States

Constitution are supreme over any conflicting Maine

statute or edict, and Maine cannot override federal

law. See U.S. Const. Art. VI, cl. 2. “This Court has

long made clear that federal law is as much the law

of the several States as are the laws passed by their

legislatures.” Haywood v. Drown, 556 U.S. 729, 734

(2009). Indeed, “it is a familiar and well-established

principle that the Supremacy Clause invalidates

state laws that interfere with, or are contrary to,

federal law.” Hillsborough Cnty. v. Automated Med.

Labs., Inc., 471 U.S. 707, 712 (1985) (cleaned up).

Thus, “state law is nullified to the extent that it

actually conflicts with federal law.” Id. at 713.

Here, federal law is clear: Title VII of the Civil

Rights Act of 1964 prohibits employer Respondents

from discriminating against Petitioners on the basis

of religion, and requires employer Respondents to

“reasonably accommodate” Petitioners’ “religious

observance and practice.” 42 U.S.C. §§ 2000e(j),

2000e-2(a). Thus, federal law requires employer

Respondents to provide Petitioners a process for

obtaining reasonable accommodation of their

sincerely held religious objections to the available

COVID-19 vaccines, and State Respondents cannot

override

employer

Respondents’

Title

VII

obligations.

This case is not about how employer

Respondents

can

accommodate

Petitioners’

sincerely held religious beliefs or what conditions

can be attached. Petitioners have already

acknowledged they are willing to comply with

reasonable health and safety requirements that

were deemed sufficient for 18 months of COVID-19.

The case is about whether federal law requires

employer Respondents to consider Petitioners’

requests for reasonable accommodation of their

sincerely held religious beliefs and prohibits State

Respondents from interfering with that federal law.

The answer is yes.

FACTUAL BACKGROUND

The Governor’s COVID-19 Vaccine

Mandate.

On August 12, 2021, Governor Mills announced

that Maine will require healthcare workers to accept

one of the three, currently available COVID-19

vaccines in order to remain employed in the

healthcare profession (the “Vaccine Mandate”). (V.

Compl. ¶ 41.) The Vaccine Mandate defines

healthcare 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 that is

licensed by the State of Maine” as well as “those

employed

emergency

medical

service

organizations or dental practices.” (V. Compl. ¶ 42.)

The Vaccine Mandate also provides that “[t]he

organizations to which this requirement applies

must ensure that each employee is vaccinated, with

this requirement being enforced as a condition of the

facilities’ licensure.” (Id. ¶ 43.) Thus, the Governor

has threatened to revoke the licenses of all covered

healthcare employers who fail to mandate that their

employees receive a COVID-19 vaccine. (Id. ¶ 44.)

In addition to the Governor’s mandate,

Petitioners and all healthcare workers in Maine

were also stripped of their pre-existing rights to

request a religious accommodation from the

COVID-19 Vaccine Mandate. Effective on

September 1, 2021, Dr. Shah and the Maine Center

for Disease Control and Prevention (“MCDC”)

amended 10-144 C.M.R. Ch. 264 to eliminate the

ability of healthcare workers in Maine to request

and obtain a religious accommodation from the

COVID-19 Vaccine Mandate. (Id. ¶ 46.) The only

source of mandatory immunization exemption

Maine now recognizes for healthcare workers is 22

M.R.S. § 802.4-B, which purports to exempt only

those individuals for whom an immunization is

medically inadvisable and who provide a written

statement from a doctor documenting the need for

an exemption. (Id. ¶ 47.) Under the prior version of

Maine’s regulation, 10-144 C.M.R. Ch. 264, § 3-B, a

healthcare worker could be exempted from

mandatory immunizations if the “employee states in

writing an opposition to immunization because of a

sincerely held religious belief.” (Id. ¶ 48.) In fact, as

acknowledged by MCDC, Maine removed the

religious exemption to mandatory immunizations

effective September 1, 2021. (Id. ¶ 49 (“The health

care immunization law has removed the allowance

for philosophical and religious exemptions and has

included influenza as a required immunization.”).)

Petitioners’ Sincerely Held Religious

Beliefs

Against

the

COVID-19

Vaccines.

Petitioners have sincerely held religious beliefs

that preclude them from accepting or receiving any

of the three available COVID-19 vaccines because of

their connection to cell lines of aborted fetuses,

whether in the vaccines’ origination, production,

development, or testing. (V. Compl. ¶ 50.) A

fundamental component of Petitioners’ sincerely

held religious beliefs is that all life is sacred, from

the moment of conception to natural death, and that

abortion is a grave sin against God and the murder

of an innocent life. (Id. ¶ 51.) Petitioners’ sincerely

held religious beliefs are rooted in Scripture’s

teachings that “[a]ll Scripture is given by inspiration

of God, and is profitable for doctrine, for reproof, for

correction, [and] for instruction in righteousness.”

(Id. ¶ 52. (quoting 2 Timothy 3:16 (KJV).) Because of

that sincerely held religious belief, Petitioners must

conform their lives, including their decisions

relating to medical care, to the commands and

teaching of Scripture. (Id. ¶ 53.)

Petitioners have sincerely held religious beliefs

that God forms children in the womb and knows

them prior to their births, and that life is sacred

from the moment of conception. (Id. ¶ 54 (quoting,

inter alia, Psalm 139:13–14 (ESV); Psalm 139:16

(ESV); Isaiah 44:2 (KJV)).)

Petitioners also have sincerely held religious

beliefs that every child’s life is sacred because made

in the image of God. (Id. ¶ 55 (quoting Genesis 1:26–

27 (KJV))), and because life is sacred from the

moment of conception, the killing of that innocent

life is the murder of an innocent human in violation

of Scripture. (Id. ¶ 56 (quoting, inter alia, Exodus

20:13 (KJV); Exodus 21:22–23 (KJV); Exodus 23:7

(KJV)).)

Petitioners also have the sincerely held

religious belief that it would be better to tie

millstones around their necks and be drowned in the

sea than bring harm to an innocent child. (Id. ¶ 57

(quoting Matthew 18:6; Luke 17:2).) Petitioners have

sincerely held religious beliefs, rooted in the

Scriptures listed above, that anything that

condones, supports, justifies, or benefits from the

taking of innocent human life via abortion is sinful,

and contrary to the Scriptures. (Id. ¶ 58.) Petitioners

believe that it is an affront to Scripture’s teaching

for them to use a product derived from or connected

in any way with abortion. (Id. ¶ 59.) Petitioners’

sincerely held religious beliefs preclude them from

accepting any one of the three currently available

COVID-19 vaccines because of their connections to

aborted fetal cell lines. (Id. ¶ 60.)

Petitioners have sincerely held religious

objections to the Johnson & Johnson (Janssen

Pharmaceuticals) vaccine because it unquestionably

used aborted fetal cells lines to produce and

manufacture the vaccine. (Id. ¶ 60.) As reported by

the North Dakota Department of Health, “[t]he nonreplicating viral vector vaccine produced by Johnson

& Johnson did require the use of fetal cell

cultures, specifically PER.C6, in order to

produce and manufacture the vaccine.” (Id.

¶ 62 (quoting N.D. Health, COVID-19 Vaccines &

Fetal

Cell

Lines

(Apr.

20,

2021),

https://www.health.nd.gov/sites/www/files/documen

ts/COVID%20Vaccine%20Page/COVID-19_Vaccine

_Fetal_Cell_Handout.pdf).)

The

Louisiana

Department of Health likewise confirms that the

Johnson & Johnson COVID-19 vaccine, which used

the PER.C6 fetal cell line, “is a retinal cell line that

was isolated from a terminated fetus in 1985.” (Id.

¶ 63 (quoting La. Dept. of Public Health, You Have

Questions, We Have Answers: COVID-19 Vaccine

FAQ

(Dec.

12,

2020),

https://ldh.la.gov/assets/oph/CenterPHCH/CenterP

H/immunizations/You_Have_Qs_COVID-19_Vaccin

e_FAQ.pdf).)

Petitioners have sincerely held religious

objections to the Moderna and Pfizer/BioNTech

COVID-19 vaccines because both of these vaccines,

too, have their origins in research using aborted

fetal cell lines. (Id. ¶ 65.) In fact, “[e]arly in the

development of mRNA vaccine technology, fetal

cells were used for ‘proof of concept’ (to

demonstrate how a cell could take up mRNA

and produce the SARS-CoV-2 spike protein) or

to characterize the SARS-CoV-2 spike protein.”

(Id. ¶ 66 (quoting N.D. Health, supra).) The

Louisiana Department of Health’s publications also

confirm that aborted fetal cells lines were used in

the “proof of concept” phase of the development of

their COVID-19 mRNA vaccines. (Id. ¶ 67 (quoting

La. Dept. of Public Health, supra).)

Because all three of the currently available

COVID-19 vaccines are developed and produced

from, tested with, researched on, or otherwise

connected with the aborted fetal cell lines HEK-293

and PER.C6, Petitioners’ sincerely held religious

beliefs compel them to abstain from obtaining or

injecting any of these products into their bodies.

Petitioners’ Willingness to Comply

With Alternative Measures.

Petitioners have offered, and are ready, willing,

and able to comply with all reasonable health and

safety requirements to facilitate their religious

exemption and accommodation from the COVID-19

Vaccine Mandate. (V. Compl. ¶ 75.) Petitioners have

all informed their respective employers that they are

willing to wear facial coverings, submit to

reasonable testing and reporting requirements,

monitor symptoms, and otherwise comply with

reasonable conditions that were good enough to

permit them to do their jobs for the last 18 months.

(Id. ¶ 76.) Masking and testing protocols remain

sufficient to prevent the spread of COVID-19 among

healthcare workers, and constitute a reasonable

alternative to vaccination as an accommodation of

sincerely held religious beliefs. (Id. ¶ 80.)

Respondents’ Denials That Federal

Law Applies In Maine.

Consistent with her sincerely held religious

beliefs, Petitioner Jane Doe 1 submitted to her

employer, Respondent MaineHealth, a request for a

religious exemption from the Vaccine Mandate. (V.

Compl. ¶ 82.) On August 17, 2021, MaineHealth

denied Jane Doe 1’s request for a religious

exemption and accommodation. (Id. ¶ 83 and dkt. 12.) MaineHealth stated:

Please be advised that due to the addition

of the COVID-19 vaccine to Maine’s

Healthcare Worker Immunization law

announced by the governor in a press

conference on 8/12/21, we are no longer

able to consider religious exemptions

for those who work in the state of

Maine. This also includes those of you

who

submitting

[sic]

influenza

exemptions as well. . . .

You submitted a religious exemption, [sic]

your request is unable to be evaluated due

to a change in the law. Your options are to

receive

vaccination

provide

documentation for a medical exemption to

meet current requirements for continued

employment.

(V. Compl. ¶ 84 and dkt. 1-2 at 2.)

On August 20, 2021, after receiving her first

denial from MaineHealth, Jane Doe 1 responded to

MaineHealth, stating:

My request for an exemption was made

under federal law, including Title VII of

the Civil Rights [Act] of 1964. The

Constitution provides that federal law is

supreme over state law, and Maine cannot

abolish the protections of federal law. You

may be interested in this press release

from Liberty Counsel, and the demand

letter they have sent to Governor Mills on

this issue (which is linked in the press

release):https://lc.org/newsroom/details/08

1821-maine-governor-must-honorreligious-exemptions-for-shot-mandate.

Regardless of what the Governor chooses

to do, Franklin Memorial has a legal

obligation under federal law to consider

and grant my proper request for a religious

exemption. Please let me know promptly if

you will do so.

(V. Compl. ¶85 and dkt .1-2 at 1.) That same day,

MaineHealth responded to Jane Doe 1 stating that

federal law does not supersede state law or the

Vaccine Mandate. (V. Compl. 86.) Specifically,

MaineHealth stated:

Although I cannot give legal guidance to

employees, I can share MaineHealth’s

view that federal law does not supersede

state law in this instance. The EEOC is

clear in its guidance that employers need

only provide religious accommodations

when doing so does not impose an undue

hardship on operations.

Requiring

MaineHealth to violate state law by

granting unrecognized exemptions would

impose such a hardship. As such, we are

not able to grant a request for a religious

exemption from the state mandated

vaccine.

(V. Compl. ¶ 87 and dkt. 1-2 at 1.)

Petitioner Jane Doe 2 submitted to her

employer, Genesis Healthcare, a request for a

religious exemption and accommodation from the

Vaccine Mandate. (V. Compl. ¶ 88.) After reviewing

Jane Doe 2’s submission, which articulated her

sincerely held religious beliefs, Genesis Healthcare

sent Jane Doe 2 a cursory response stating that her

religious beliefs did not qualify for an exemption

from the vaccine mandate. (Id.) Petitioner Jane Doe

2 was given until August 23 to become vaccinated,

and when her request for a religious objection and

accommodation was denied, Jane Doe 2 was

terminated from her employment. (Id.)

Petitioner Jane Doe 3 submitted a request to

her employer, Respondent Northern Light Health,

seeking an exemption and accommodation from the

Vaccine Mandate. (Id. ¶ 89.) Northern Light

responded to Jane Doe 3, denying her request and

stating that the Vaccine Mandate does not permit

exemptions or accommodations for sincerely held

religious beliefs. (Id.) Specifically, Northern Light

informed Jane Doe 3 that her request for a religious

exemption could not be granted because Maine law

and the Governor do not permit “non-medical

exemptions,” and stated, “the only exemptions that

may be made to this requirement are medical

exemptions supported by a licensed physician, nurse

practitioner, or physician assistant.” (Id. ¶ 90 and

dkt. 1-3 at 1.)

On August 19, 2021, Jane Doe 5 submitted a

request to her employer, Defendant MaineGeneral

Health, stating that she has sincerely held religious

objections to the COVID-19 vaccines and requesting

an exemption and accommodation from the Vaccine

Mandate. MaineGeneral told Jane Doe 5 that no

religious exemptions were permitted under the

Governor’s mandate and that her request for a

religious exemption and accommodation was denied.

(Id. ¶92 and dkt. 1-4.) Specifically, MaineGeneral

stated:

MaineGeneral Health must comply with

Governor

Mill’s

[sic]

COVID-19

vaccination mandate for all health care

employees. All MaineGeneral employees

will have to be vaccinated against

COVID-19 by Oct. 1 unless they have a

medical exemption. The mandate also

states that only medical exemptions are

allowed, no religious exemptions are

allowed.

(V. Compl. ¶ 93 and dkt. 1-4 at 1.) Maine General

further stated, “Allowing for a religious exemption

would be a violation of the state mandate issued by

Governor Mills. So unfortunately, it is not an option

for us.” (V. Compl. ¶ 94 and dkt. 1-4 at 2.)

Respondents Allow

Medical Exemptions.

Nonreligious,

Employer

Respondents’

responses

Petitioners’

requests

for

exemption

and

accommodation for their sincerely held religious

beliefs confirm that the Vaccine Mandate allows for

nonreligious

exemptions

while

specifically

prohibiting religious exemptions. (V. Compl. ¶¶ 84,

90, 93, 96–102.) In denying Jane Doe 1’s religious

exemption request, Respondent MaineHealth gave

her the options “to receive vaccination or provide

documentation for a medical exemption to meet

current requirements for continued employment” (V.

Compl. ¶ 84 and dkt. 1-2 at 2), and requested Jane

doe 1 to notify MaineHealth “[i]f you seek an

accommodation other than a religious exemption”

(V. Compl. ¶ 99 and dkt. 1-2 at 1).

Defendant Northern Light gave a similar

response to Jane Doe 3, stating, “the only

exemptions that may be made to this requirement

are medical exemptions” and that all Northern Light

employees must comply with the Vaccine Mandate

“except in the case of an approved medical

exemption.” (V. Compl. ¶ 100 and dkt. 1-3 at 1.)

And Defendant MaineGeneral gave a similar

response to Jane Doe 5, stating that all healthcare

workers must comply with the Vaccine Mandate

“unless they have a medical exemption” and that the

Governor’s “mandate states that only medical

exemptions are allowed, no religious exemptions are

allowed.” (V. Compl. ¶ 101 and dkt. 1-4 at 1.)

PROCEDURAL HISTORY

Petitioners initiated this instant action on

August 25, 2021 with the filing of a Verified

Complaint and a Motion for Temporary Restraining

Order and Preliminary Injunction. On August 26,

the district court held a temporary restraining order

(TRO) hearing and denied the TRO the same day.

(See App. 52a.) The district court initially scheduled

a preliminary injunction hearing for September 10

but granted Respondents’ request to continue the

hearing to September 20, over Petitioners’ objection.

(See id.) After the preliminary injunction hearing on

September 20, the court took the matter under

advisement and informed the parties that a decision

would issue expeditiously. Twenty-three days later

(two days before Petitioners’ deadline to become

vaccinated), the district court denied the

preliminary injunction. (App. 51a.)

Within an hour of the district court’s order

denying a preliminary injunction, Petitioners

appealed the denial to the First Circuit and moved

for an emergency injunction pending appeal. The

First Circuit denied that emergency motion (App.

46a), and Petitioners applied to this Court for an

emergency writ of injunction pending disposition of

Petitioners’ forthcoming certiorari petition. Justice

Breyer denied that motion without prejudice to

refiling the application should the First Circuit not

grant the necessary relief. (App. 44a.) On October

19, 2021, the First Circuit issued its opinion

affirming the denial of a preliminary injunction, and

Petitioners immediately reapplied to this Court for

a writ of injunction. On October 29 the Court denied

the application. (App. 1a.)

REASONS FOR GRANTING THE PETITION

THE

PETITION

INVOLVES

IMPORTANT QUESTION OF FEDERAL

LAW THAT HAS NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT.

Rule 10 of the Court’s rules states that

certiorari is appropriate where—as here—“a United

States court of appeals has decided an important

question of federal law that has not been, but should

be, settled by this Court.” Supreme Court Rule 10(c).

The First Circuit’s decision below, involving

unquestionably important principles of First

Amendment jurisprudence in an era of escalating

government hostility towards religious beliefs,

merits the Court’s review. As Justice Gorsuch

recognized in his dissent from the Court’s denial of

Petitioners’ reapplication for a writ of injunction,

This 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

their

constitutionally

protected religious beliefs. Their plight is

worthy of our attention.

(App. 11a (emphasis added).)

Moreover, while “stemming the spread of

COVID-19 qualifies as a compelling interest,” at

least for a period of time, “this interest cannot

qualify as such forever.” (App. 8a (cleaned up).) “If

human nature and history teach anything, it is that

civil liberties face grave risks when governments

proclaim indefinite states of emergency.” (App. 9a.)

And, it is through the seemingly unending

“emergency” of COVID-19 that Petitioners have

faced the onslaught of seemingly unending assaults

on their cherished First Amendment freedoms. As

Justice Gorsuch pointed out, “Maine’s decision to

deny a religious exemption in these circumstances

doesn’t just fail the least restrictive means test, it

borders on the irrational.” (App. 10a (emphasis

added).)

The reason for this is simple: Maine’s

categorical denial of religious exemptions for

healthcare workers who have bravely served as

heroes for the last 18 months is an extreme outlier

among the States. Forty-seven other states have

rejected this approach for private healthcare

facilities, and just days ago, the EEOC issued

detailed guidance confirming that it directly violates

federal law.1 Maine is also selective about which

healthcare workers it will force to get vaccinated. At

the same time it axed its decades-old religious

exemption, it kept an extremely broad medical

exemption; at the same time that it foreclosed any

accommodation to religious healthcare workers in

hospitals, it chose not to impose any mandate on

healthcare workers in urgent care centers or private

See EEOC, EEOC Issues Updated COVID-19 Technical

Assistance (Oct. 25, 2021), https://www.eeoc.gov/newsroom/

eeoc-issues-updated-covid-19-technical-assistance-0 (“Title VII

requires employers to accommodate employees’ sincerely held

religious beliefs . . . .” (emphasis added)); EEOC, What You

Should Know About COVID-19 and the ADA, the

Rehabilitation Act, and Other EEO Laws, at K.12, L.3,

https://www.eeoc.gov/wysk/what-you-should-know-aboutcovid-19-and-ada-rehabilitation-act-and-other-eeo-laws

(updated Oct. 25, 2021) (reaffirming guidance that Title VII

requires an employer to “thoroughly consider all possible

reasonable accommodations” for religious objectors to

COVID-19 vaccinations, and that “[i]n many circumstances, it

may be possible to accommodate those seeking reasonable

accommodations for their religious beliefs.”).

physician’s offices. Maine’s selective mandate is

therefore the antithesis of a neutral, generally

applicable law that imposes only “incidental”

burdens on religious objectors. Almost every other

state has found a way to protect against the same

virus without trampling religious liberty—including

states that have smaller populations and much

greater territory than Maine. If Vermont, New

Hampshire, Alaska, the Dakotas, Montana,

Wyoming, California, and the District of Columbia

can all find ways to both protect against COVID and

respect individual liberty, Maine can too. And, the

Court should require Maine to comport its behavior

to the demands of the Constitution.

“Government is not free to disregard the First

Amendment in times of crisis. . . . Yet recently,

during the COVID pandemic, certain States seem to

have ignored these long-settled principles.” Roman

Catholic Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63, 69 (2020) (Gorsuch, J., concurring).

While COVID-19 has presented many challenges to

all Americans alike, “judicial deference in an

emergency or crisis does not mean wholesale judicial

abdication, especially when important questions of

religious discrimination . . . are raised.” Id. at 74

(Kavanaugh, J., concurring) (emphasis added).

Indeed, the Court “may not shelter in place when the

Constitution is under attack. Things never go well

when we do.” Id. at 71 (Gorsuch, J., concurring). This

Petition raises serious questions of religious

discrimination under the First Amendment that

have not been, but should be, settled by the Court.

THE

FIRST

CIRCUIT’S

DECISION

BELOW CONFLICTS WITH DECISIONS

FROM THE THIRD, SIXTH, AND

SEVENTH CIRCUITS, AND CONFLICTS

WITH THE DECISIONS OF NUMEROUS

FEDERAL COURTS ON THE SAME

QUESTION.

The Third, Sixth, and Seventh

Circuits Have All Held That Granting

a Nonreligious Medical Exemption

While

Prohibiting

Religious

Exemptions

Violates

the

First

Amendment.

In Fraternal Order of Police Newark Lodge No.

12 v. City of Newark, Justice (then-Judge) Alito

wrote unequivocally for the court that “[b]ecause the

Department makes exemptions from its [no beards]

policy for secular reasons and has not offered any

substantial justification for refusing to provide

similar treatment for officers who are required to

wear beards for religious reasons, we conclude that

the Department's policy violates the First

Amendment.” 170 F.3d 359, 360 (3d Cir. 1999).

There, like Maine here, the city argued that it was

required to provide medical accommodations under

federal law but that religious exemptions were not

required. Id. at 365. The court squarely rejected that

rationale: “It is true that the ADA requires

employers to make reasonable accommodations for

individuals with disabilities. However, Title VII of

the Civil Rights Act of 1964 imposes an identical

obligation on employers with respect to

accommodating religion.” Id. (cleaned up). Thus, the

court held, “we cannot accept the Department's

position that its differential treatment of medical

exemptions and religious exemptions is premised on

a good-faith belief that the former may be required

by law while the latter are not.” Id.

Here, the First Circuit held that the continued

availability of medical exemptions, while religious

exemptions were specifically targeted and excluded,

does not violate the First Amendment because the

two are not comparable. (App. 27a-28a.) Justice

Alito squarely rejected that contention:

We also reject the argument that, because

the medical exemption is not an

“individualized exemption,” the Smith

/Lukumi rule does not apply. While the

Supreme Court did speak in terms of

“individualized exemptions” in Smith and

Lukumi, it is clear from those decisions

that the Court’s concern was the prospect

of the government’s deciding that secular

motivations are more important than

religious motivations. If anything, this

concern is only further implicated when

the government does not merely create a

mechanism for individualized exemptions,

but instead, actually creates a categorical

exemption for individuals with a secular

objection but not for individuals with a

religious objection.

Fraternal Order of Police, 170 F.3d at 365 (cleaned

up). The same is true here. Maine maintained a

policy that permitted religious exemptions and

medical exemptions to mandatory vaccinations. (V.

Compl. ¶ 48.) Then, Maine specifically removed

religious exemptions while maintaining medical

exemptions.

(V.

Compl.

¶¶ 46–47.)

That

discriminatory removal of religious exemptions

while maintaining medical exemptions violates the

First Amendment. 170 F.3d at 365 (“Therefore, we

conclude that the Department’s decision to provide

medical exemptions while refusing religious

exemptions

sufficiently

suggestive

discriminatory intent so as to trigger heightened

scrutiny under Smith and Lukumi.”).

The Third Circuit held that the government is

prohibited from making value judgments to

legitimize a discriminatory policy:

[T]he medical exemption raises concern

because it indicates that the Department

has made a value judgment that secular

(i.e., medical) motivations for wearing a

beard are important enough to overcome

its general interest in uniformity but that

religious motivations are not. As discussed

above, when the government makes a

value judgment in favor of secular

motivations, but not religious motivations,

the government’s actions must survive

heightened scrutiny.

170 F.3d at 366. Essentially, as here, “the

Department’s policy cannot survive any degree of

heightened scrutiny and thus cannot be sustained.”

Id. at 367.

In Dahl v. Board of Trustees of Western

Michigan University, No. 21-2945, 2021 WL

4618519 (6th Cir. Oct. 7, 2021), the Sixth Circuit

Court of Appeals likewise held that refusing to

provide religious exemptions and accommodations

where nonreligious exemptions were available

violates the First Amendment. There, the University

imposed a COVID-19 vaccine mandate on all student

athletes and required them to receive the vaccine

regardless of their sincerely held religious beliefs

against it. 2021 WL 4618519, at *1. In some cases,

the University simply denied the student-athletes’

requests for a religious exemption, and in other

cases, the University granted them but refused to

allow them to participate in intercollegiate athletics.

Id. However, the University retained the discretion

to allow for medical exemptions and otherwise

exempted all other students at the University from

the vaccine requirement. Id. at *5–6.

The Sixth Circuit held that the allowance for

such individualized exemptions removed the law

from neutrality and general applicability. Id. at *4.

Simply put,

the University’s failure to grant religious

exemptions to Petitioners burdened their

free exercise rights. The University put

Petitioners to the choice: get vaccinated or

stop fully participating in intercollegiate

sports. The University did not dispute that

taking the vaccine would violate

Petitioners’ “sincerely held Christian

beliefs.” Yet refusing the vaccine prevents

Petitioners from participating in college

sports, as they are otherwise qualified

(and likely were recruited) to do. By

conditioning the privilege of playing sports

on Petitioners’ willingness to abandon

their sincere religious beliefs, the

University burdened their free exercise

rights.

Id. at *3.

Because the University’s mandate was neither

neutral nor generally applicable, the Sixth Circuit

held that it was required to survive strict scrutiny.

Id. at *5. And, like the Third Circuit in Fraternal

Order of Police, the Sixth Circuit held that the

discriminatory treatment of religious exemptions

and accommodations failed that test. “[T]he

University falters on the narrow tailoring prong.” Id.

Relying on this Court’s decision in Roman Catholic

Diocese, the Sixth Circuit reasoned that “public

health measures are not narrowly tailored if they

allow similar conduct that ‘creates a more serious

health risk’,” id. (quoting Roman Catholic Diocese,

141 S. Ct. at 67), and concluded:

That is the case at the University, which

allows non-athletes—the vast majority of

its students—to remain unvaccinated.

One need not be a public health expert to

recognize that the likelihood that a

student-athlete contracts COVID-19 from

an unvaccinated non-athlete with whom

she lives, studies, works, exercises,

socializes, or dines may well meet or

exceed that of the athlete contracting the

virus from a Petitioner who obtains a

religious exemption to participate in team

activities.

2021 WL 4618519, at *5.

Moreover, the Sixth Circuit reasoned that the

University’s failure to follow the less restrictive

alternatives found sufficient at other institutions

also compelled a finding that the University failed

strict scrutiny. Id. Indeed, “narrow tailoring is

unlikely if the University’s conduct is ‘more severe’

than that of other institutions.” Id. (quoting Brach v.

Newsom, 6 F.4th 904, 931 (9th Cir. 2021)). And,

because

“several

other

universities

grant

exemptions from their COVID-19 mandates,” the

court held that the University’s failure to provide

religious accommodations and exemptions to its

student-athletes violated the First Amendment. Id.

The Seventh Circuit, too, has held that the

government must grant religious exemptions from a

COVID-19 vaccine mandate. In Klaassen v. Trustees

of Indiana University, the Seventh Circuit was faced

with a broad challenge to Indiana University’s

COVID-19 vaccine mandate requiring all students to

be vaccinated. 7 F.4th 592, 592 (7th Cir. 2021).

Unlike the Maine Vaccine Mandate for healthcare

workers, however, Indiana University’s mandate

permitted students to obtain religious and medical

exemptions, and the University granted religious

exemptions to those students who were eligible. Id.

In fact, most of the petitioners in Klaassen had

sought and received religious exemptions from the

mandate. Id. at 593. The Seventh Circuit held that

because the University allowed for religious

exemptions, and treated them equally to

nonreligious exemptions, the mandate did not

violate the First Amendment. Id. “These Petitioners

just need to wear masks and be tested, requirements

that are not constitutionally problematic.” Id.

The Northern District of New York likewise

issued a preliminary injunction outlining why the

discriminatory treatment of religious exemptions

violated the First Amendment. See Dr. A v. Hochul,

No. 1:21-cv-1009, 2021 WL 4734404 (N.D.N.Y. Oct.

12, 2021) (converting temporary restraining order

(TRO) to preliminary injunction). There, as here,

New York imposed a COVID-19 vaccine mandate on

healthcare workers. Id. at *8. Initially, New York

law permitted both religious and medical

exemptions from the mandate, but on August 18,

New York revoked the option of a religious

exemption and accommodation. Id. The district

court concluded that “[t]his intentional change in

language is the kind of religious gerrymander that

triggers heightened scrutiny.” Id. And, the court

held that it failed strict scrutiny because it was not

narrowly tailored. “[T]here is no adequate

explanation from defendants about why the

reasonable accommodation that must be extended to

a medically exempt healthcare worker could not be

similarly extended to a healthcare worker with a

sincere religious objection.” Id. at *9. Moreover, the

court held that the state’s departure “from similar

healthcare vaccination mandates issued in other

jurisdictions that include the kind of religious

exemption that was originally present” in New York

demonstrates that the mandate was not narrowly

tailored or the least restrictive means. Id.2

Other federal courts have also held that

COVID-19 vaccine mandates must include

accommodation for sincerely held religious beliefs to

satisfy the Constitution. See, e.g., Magliulo v.

Edward Via Coll. of Osteopathic Medicine, No. 3:21cv-2304, 2021 WL 3679227 (W.D. La. Aug. 17, 2021).

The First Circuit Held That States

May Offer Nonreligious Medical

Exemptions

While

Prohibiting

Religious

Exemptions

Without

Violating the First Amendment.

Contrary to the precedent of the Third, Sixth,

and Seventh Circuits, as well as that of numerous

district courts, the First Circuit’s decision below held

that Respondents did not violate the First

Amendment by treating nonreligious exemptions

A panel of the Second Circuit Court of Appeals initially

agreed with the Dr. A district court, but then reversed the

preliminary injunction. On September 30, 2021, the panel gave

its imprimatur to the Dr. A. TRO in We The Patriots USA, Inc.

v. Hochul, No. 21-2179, dkt. 65 (2d Cir. Sept. 30, 2021), issuing

an injunction pending appeal (IPA) enjoining state officials

from enforcing the New York vaccine mandate. In a subsequent

order, however, the panel vacated both its IPA and the Dr. A

preliminary injunction. See We the Patriots USA, Inc. v.

Hochul, Nos. 21-2179, 21-2566, 2021 WL 5103443 (2d Cir. Nov.

1, 2021). In a separate per curiam opinion, the Second Circuit

concluded the respective plaintiffs had not established a

likelihood of success on the merits on the preliminary records

before the district courts. See 2021 WL 5121983 (2d Cir. Nov.

4, 2021).

more favorably than religious exemptions. (App.

28a.) Specifically, the First Circuit held that

inclusion of a broad, medical exemption did not

remove the law from general applicability because—

in the First Circuit’s view—“[n]o case in this circuit

and no case of the Supreme Court holds that a single

objective exemption renders a rule not generally

applicable.” (App. 28a.) More directly in

contradiction to the other circuits, the First Circuit’s

decision stated that “[p]roviding a medical

exemption does not undermine any of Maine’s three

goals, let alone in a manner similar to the way

permitting an exemption for religious objectors

would.” (App. 28a.) Because of that erroneous

contention, the First Circuit held that Maine’s

revocation of religious exemptions from the

COVID-19 vaccine mandate was neutral and

generally applicable.

Importantly, the First Circuit’s decision below

even highlights that it is in direct conflict with the

Third and Sixth Circuit decisions. As to the Third

Circuit’s decision in Fraternal Order of Police, the

First Circuit said that case was “not persuasive”

even though it involved a virtually identical issue.

(App. 34a.) The First Circuit said that the Third

Circuit’s decision, which “prohibited a police

department from offering medical but no religious

exemptions to its facial hair policy,” did not apply

here because “the medical exemptions support

Maine’s public health interests,” and that “Maine’s

providing medical but not religious or philosophical

exemptions does not suggest an improper motive.”

(App. 35a.)

As to the Sixth Circuit’s decision in Dahl, the

First Circuit stated that it was of no import because

“Maine’s rule is not underinclusive even under Dahl

because it encompasses every employee working in

a setting posing serious risks of COVID-19 exposure

and transmission.” (App. 36a-37a.) But this is

plainly incorrect, as Maine’s COVID-19 vaccine

mandate does not apply to “every employee.” Indeed,

Petitioners here brought their challenges because

Maine’s Vaccine Mandate expressly excludes those

employees with medical exemptions, while

precluding religious exemptions for similarly

situated employees.

The First Circuit’s decision below cannot be

reconciled with Fraternal Order of Police, Dahl, or

Klaassen. Certiorari is appropriate to bring the

circuits into harmony on a critical issue of First

Amendment law.

THE

FIRST

CIRCUIT’S

DECISION

APPROVING

MAINE’S

ESPECIALLY

HARSH

AND

DISCRIMINATORY

TREATMENT OF PETITIONERS’ FIRST

AMENDMENT LIBERTIES DIRECTLY

CONFLICTS

WITH

THIS

COURT’S

PRECEDENTS.

Throughout the COVID-19 pandemic, the

Court has issued numerous decisions stating that

singling out religious exercise for discriminatory

treatment is a violation of the First Amendment.

“[G]overnment regulations are not neutral and

generally applicable, and therefore trigger strict

scrutiny under the Free Exercise Clause, whenever

they treat any comparable secular activity more

favorably than religious exercise.” Tandon v.

Newsom, 141 S. Ct. 1294, 1296 (2021). In fact, “the

regulations cannot be viewed as neutral because

they single out [religion] for especially harsh

treatment.” Roman Catholic Diocese, 141 S. Ct. at

66. “When a state so obviously targets religion for

differential treatment, our job becomes much

clearer.” South Bay United Pentecostal Church v.

Newsom, 141 S. Ct. 716, 717 (2021) (Gorsuch, J.) As

the Court said in Tandon,

Where the government permits other

activities to proceed with precautions, it

must show that the religious exercise at

issue is more dangerous than those

activities even when the same precautions

are applied. Otherwise, precautions that

suffice for other activities suffice for

religious exercise too.

141 S. Ct. at 1296–97.

Thus,

deciding

whether

Maine’s

discriminatory decision to permit nonreligious,

medical exemptions to its Vaccine Mandate while

prohibiting religious exemptions to the same

mandate, the critical issue is the comparison of risk,

and “whether two activities are comparable for

purposes of the Free Exercise Clause must be judged

against the asserted government interest that

justifies the regulation at issue.” Id. at 1296.

Ultimately, “[c]omparability is concerned with the

risks various activities pose” to the asserted interest,

not the reasons for which the activities are

undertaken—i.e., religious or nonreligious. Id.

Contra this Court’s holdings, the First Circuit

held irrelevant the comparative risks to public

health between the religiously unvaccinated and the

medically unvaccinated in approving Maine’s

refusal to recognize religious exemptions while

explicitly permitting medical exemptions. (App.

31a.) Flouting this Court’s risk assessment

mandate, the First Circuit concluded, “Maine’s rule

does not rest on assumptions about the public health

impacts of various secular or religious activities,”

but rather “requires all healthcare workers to be

vaccinated as long as the vaccination is not

medically contraindicated.” (App. 31a.) The First

Circuit reasoned, “By analogy, if Maine’s emergency

rule were an occupancy limit, it would apply to all

indoor activities equally based on facility size, but it

would exempt healthcare facilities.” (App. 031a.) But

the First Circuit’s analogy endorses precisely what

Tandon, South Bay, and Roman Catholic Diocese

condemned—“treat[ing] any comparable secular

activity more favorably than religious exercise.”

Tandon, 141 S. Ct. at 1296. The First Circuit’s

decision allows Maine to prioritize the liberty of

those to whom a vaccine might cause physical harm

over the liberty of those to whom a vaccine would

cause spiritual harm without requiring Maine to

justify the disparate treatment in terms of supposed

risks to Maine’s asserted public health interests.

The First Circuit’s decision cannot be reconciled

with this Court’s precedents. As Justice Gorsuch

already admonished, “The Court of Appeals found

Maine’s rule neutral and generally applicable due to

an error this Court has long warned against—

restating the State’s interests on its behalf, and

doing so at an artificially high level of generality.”

(App. 7a.) Moreover, “Maine has so far failed to

present any evidence that granting religious

exemptions to the applicants would threaten its

stated public health interests any more than its

medical exemption already does.” (App. 11a.) The

First Circuit’s decision plainly and directly conflicts

with this Court’s precedents. Certiorari is

appropriate and should be granted.

THE

FIRST

CIRCUIT’S

DECISION

CONFLICTS

WITH

THIS

COURT’S

PRECEDENTS ON THE IMPORTANT

FEDERAL QUESTION OF WHETHER

THE SUPREMACY CLAUSE MANDATES

THAT

EMPLOYERS

PROVIDE

RELIGIOUS ACCOMMODATIONS TO

EMPLOYEES

REGARDLESS

CONTRARY STATE LAWS.

As a matter of black letter law, federal law and

the United States Constitution are supreme over

any conflicting Maine statute, edict, or executive

decree from the Governor, and Maine cannot

override federal law. See U.S. Const. Art. VI, cl. 2.

Contrary to the plain text of the Constitution, the

First Circuit below held (erroneously) that the

parties did not dispute whether Title VII was the

supreme law of the land. (App. 39a.) This conclusion

was plainly erroneous, factually and legally, and it

directly conflicts with this Court’s precedents on the

issue.

First, as demonstrated in the Verified

Complaint, Respondents have indeed stated that

federal law does not apply in Maine. (V. Compl. ¶ 87

(““I can share MaineHealth’s view that federal law

does not supersede state law in this instance.”);

Id. ¶ 84 (““[W]e are no longer able to consider

religious exemptions for those who work in

the state of Maine.”).) Thus, the First Circuit’s

decision was incorrect as a factual matter.

But, more importantly, the First Circuit’s

decision rested on a conclusion that Maine is

permitted to ignore the requirements of Title VII by

imposing a mandate that revokes the protections

afforded to Mainers under its explicit provisions.

“This Court has long made clear that federal law is

as much the law of the several States as are the laws

passed by their legislatures.” Haywood v. Drown,

556 U.S. 729, 734 (2009). The Supremacy Clause

“provides a rule of decision for determining whether

federal or state law applies in a particular

situation,” Kansas v. Garcia, 140 S. Ct. 791, 801

(2020), and where—as here—federal law “imposes

restrictions [and] confers rights on private actors,”

and Maine law “imposes restrictions that conflict

with the federal law,” “the federal law takes

precedence and the state law is preempted.” Murphy

v. NCAA, 138 S. Ct. 1461, 1480 (2018). Indeed, “it is

a familiar and well-established principle that the

Supremacy Clause invalidates state laws that

interfere with, or are contrary to, federal law.”

Hillsborough Cnty. v. Automated Med. Labs., Inc.,

471 U.S. 707, 712 (1985) (cleaned up). “[S]tate law is

nullified to the extent that it actually conflicts with

federal law.” Id. at 713.

The First Circuit’s decision below completely

ignores this Court’s precedents in Haywood,

Murphy, and Hillsborough County, and its decision

cannot be reconciled with the Supremacy Clause.

Certiorari is warranted to align the First Circuit’s

decision withy this Court’s precedent.

THE FIRST CIRCUIT’S HOLDING THAT

PRELIMINARY INJUNCTIVE RELIEF IS

INAPPROPRIATE IN TITLE VII CASES

DIRECTLY CONFLICTS WITH THIS

COURT’S PRECEDENTS AND THE

PRECEDENTS OF THE SECOND AND

FIFTH CIRCUITS.

The Second and Fifth Circuits Have

Held That Preliminary Injunctive

Relief Is Appropriate in Title VII

Cases to Preserve the Status Quo.

In the Title VII context, the Second and Fifth

Circuits have concluded that Article III courts retain

equitable jurisdiction to grant preliminary

injunctive relief to preserve the status quo. See

Sheehan v. Purolator Courier Corp., 676 F.2d 877,

884 (2d Cir. 1981); Drew v. Liberty Mut. Ins. Co., 480

F.2d 69, 74 (5th Cir. 1973); cf. Bailey v. Delta Air

Lines, Inc., 722 F.2d 942, 944-45 (1st Cir. 1983) (“We

are not prepared to adopt a rule categorically

barring all suits for preliminary relief pending

administrative disposition. In our view, there is

considerable force to the argument that the statute

does not require so much.”).

In Sheehan, the Second Circuit held that “if the

court eventually will have jurisdiction of the

substantive claim and an administrative tribunal

has preliminary jurisdiction, the court has

incidental equity jurisdiction to grant temporary

relief to preserve the status quo pending ripening of

the claim for judicial action on the merits.” 676 F.2d

at 884. It continued, “within the framework of Title

VII, we are persuaded that Congress intended the

federal courts to have resort to all of their traditional

equity powers, direct and incidental, in aid of the

enforcement of the Title.” Id. at 885. Indeed, as the

Second Circuit reasoned,

in many cases the effect on the

complainant of several months without

work or working in humiliating or

otherwise intolerable circumstances will

constitute harm that cannot adequately be

remedied by a later award of damages.

Given the singular role in 1964 of the

individual private action as the only

method of enforcing Title VII, and the

continued view in 1972 of that right of

action as “paramount,” we cannot conclude

that Congress intended to preclude the

courts' use of their incidental equity power

in these circumstances to prevent

frustration of Congress’s goals.

Id. at 885–86. Thus, “where a person has filed a Title

VII charge with the EEOC, the court has jurisdiction

to entertain a motion for temporary injunctive relief

against employer retaliation while the charge is

pending before the EEOC and before the EEOC has

issued a right to sue letter.” Id. at 887.

In Drew, the Fifth Circuit likewise held that a

plaintiff may seek equitable relief during the

pendency of a Title VII claim to prevent irreparable

harm. 480 F.2d at 72–73. The court reasoned, “We

should not lightly assume that Congress sought to

do away with the chance that private litigants might

in this manner alleviate the burdens on EEOC

members and staff in the rare situation when the

likelihood of success and the need for immediate

assistance could attract competent counsel to act.”

Id. at 74. Thus, the court concluded, “it is clear that

a victim of such forbidden conduct as was here

alleged had a clear right to seek equitable relief

without having to await the convenience of the

EEOC.” Id. at 72–73.

And it should be noted that the holdings of the

Second and Fifth Circuits are entirely aligned with

this Court’s decision in Burlington Northern &

Santa Fe Railway Co. v. White, 548 U.S. 53, 72

(2006) (“Many reasonable employees would find a

month without a paycheck to be a serious hardship.

. . . A reasonable employee facing the choice between

retaining her job (and paycheck) and filing a

discrimination complaint might well choose the

former.”).

The First Circuit’s Decision Conflicts

With the Decisions of the Second and

Fifth Circuits.

Contrary to the precedents of the Second and

Fifth Circuits, the First Circuit held below that

Petitioners failed to show a need for injunctive relief

because the loss of employment generally does not

constitute irreparable harm. (App. 41a.) Specifically,

the First Circuit held that Petitioners were not

entitled to even seek injunctive relief because

monetary damages were sufficient. (Id.)

But here, a Petitioner cannot simply walk

across the street to a different healthcare provider

to obtain alternative employment in the field of the

Petitioner’s often considerable education, training,

and experience. Respondents have created a

situation where no religious objectors to the

COVID-19 vaccine can obtain employment in any

comparable healthcare occupation. Petitioners have

become constitutional orphans in their own state.

Such extraordinary circumstances suffice for

injunctive relief under the Second and Fifth Circuits’

decisions, but the First Circuit left Petitioners out in

the cold for the extreme Maine winter with no

options for reasonably comparable alternative

employment, solely as a result of the Governor’s

Vaccine Mandate. Certiorari is appropriate to

harmonize the circuit courts on an important

question of federal law.

CONCLUSION

For the foregoing reasons, the Petition should

be granted.

Dated this November 11, 2021.

Respectfully submitted,

Mathew D. Staver (Counsel of Record)

Anita L. Staver

Horatio G. Mihet

Roger K. Gannam

Daniel J. Schmid

LIBERTY COUNSEL

P.O. Box 540774

Orlando, FL 32854

(407) 875-1776

court@LC.org |hmihet@LC.org

rgannam@LC.org | dschmid@LC.org

Counsel for Petitioners

APPENDIX

Appendix

A DENIAL OF THE

APPENDIX A — ORDER

SUPREME COURT OF THE UNITED STATES,

DATED OCTOBER 29, 2021

SUPREME COURT OF THE UNITED STATES

No. 21A90

JOHN DOES 1–3, et al.,

Applicants,

JANET T. MILLS, GOVERNOR OF MAINE, et al.

Concur by: BARRETT

ON APPLICATION FOR INJUNCTIVE RELIEF

October 29, 2021, Decided

The application for injunctive relief presented to

Justice Breyer and by him referred to the Court is

denied.

Justice Barrett, with whom Justice K avanaugh joins,

concurring in the denial of application for injunctive relief.

When this Court is asked to grant extraordinary

relief, it considers, among other things, whether the

applicant “‘is likely to succeed on the merits.’” Nken v.

Holder, 556 U. S. 418, 434, 129 S. Ct. 1749, 173 L. Ed.

Appendix A

2d 550 (2009). 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. See, e.g., Hollingsworth v.

Perry, 558 U. S. 183, 190, 130 S. Ct. 705, 175 L. Ed. 2d 657

(2010) (per curiam); cf. Supreme Court Rule 10. 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.

Dissent by: GORSUCH

J ust ice G or such , w ith whom J ust ice T hom a s

and Justice A lito join, dissenting from the denial of

application for injunctive relief.

Maine has adopted a new regulation requiring certain

healthcare workers to receive COVID-19 vaccines if they

wish to keep their jobs. 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. The applicants before us are

a physician who operates a medical practice and eight

other healthcare workers. No one questions that these

individuals have served patients on the front line of the

COVID-19 pandemic with bravery and grace for 18 months

now. App. to Application for Injunctive Relief, Exh. 6,

¶8 (Complaint). Yet, with Maine’s new rule coming into

Appendix A

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.

Start w ith the first question confronting any

injunction or stay request—whether the applicants are

likely to succeed on the merits. The First Amendment

protects the exercise of sincerely held religious beliefs.

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n,

584 U. S. ___, ___-___, 138 S. Ct. 1719, 201 L. Ed. 2d 35

(2018). Laws that single out sincerely held religious beliefs

or conduct based on them for sanction are “doubtless . . .

unconstitutional.” Employment Div., Dept. of Human

Resources of Ore. v. Smith, 494 U. S. 872, 877, 110 S.

Ct. 1595, 108 L. Ed. 2d 876 (1990). But what about other

laws? Under this Court’s current jurisprudence, a law

may survive First Amendment scrutiny if it is generally

applicable and neutral toward religion. If the law fails

either of those tests, it may yet survive but the State must

satisfy strict scrutiny. To do that, the State must prove

its law serves a compelling interest and employs the least

restrictive means available for doing so. See Church of

Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 531532, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993); Smith, 494

U. S., at 879.

Maine does not dispute that its rule burdens the

exercise of sincerely held religious beliefs. The applicants

explain that receiving the COVID-19 vaccines violates

Appendix A

their faith because of what they view as an impermissible

connection between the vaccines and the cell lines of

aborted fetuses. More specifically, they allege that the

Johnson & Johnson vaccine required the use of abortionrelated materials in its production, and that Moderna and

Pfizer relied on aborted fetal cell lines to develop their

vaccines. Complaint ¶¶61-68. This much, the applicants

say, violates foundational principles of their religious faith.

For purposes of these proceedings, Maine has contested

none of this.

That takes us to the question whether Maine’s rule

qualifies as neutral and generally applicable. Under this

Court’s precedents, a law fails to qualify as generally

applicable, and thus triggers strict scrutiny, if it creates

a mechanism for “individualized exemptions.” Lukumi,

508 U. S., at 537; see also Fulton v. City of Philadelphia,

593 U. S. ___, ___-___, 141 S. Ct. 1868, 210 L. Ed. 2d 137

(2021) (slip op., at 5–6).

That description applies to Maine’s regulation. The

State’s vaccine mandate is not absolute; individualized

exemptions are available, but only if they invoke certain

preferred (nonreligious) justifications. Under Maine

law, employees can avoid the vaccine mandate if they

produce a “written statement” from a doctor or other care

provider indicating that immunization “may be” medically

inadvisable. Me. Rev. Stat. Ann., Tit. 22, §802(4–B) (2021).

Nothing in Maine’s law requires this note to contain an

explanation why vaccination may be medically inadvisable,

nor does the law limit what may qualify as a valid “medical”

reason to avoid inoculation. So while COVID-19 vaccines

Appendix A

have Food and Drug Administration labels describing

certain contraindications for their use, individuals in Maine

may refuse a vaccine for other reasons too. From all this,

it seems Maine will respect even mere trepidation over

vaccination as sufficient, but only so long as it is phrased

in medical and not religious terms. That kind of double

standard is enough to trigger at least a more searching

(strict scrutiny) review.

Strict scrutiny applies to Maine’s vaccine mandate

for another related reason. This Court has explained that

a law is not neutral and generally applicable if it treats

“any comparable secular activity more favorably than

religious exercise.” Tandon v. Newsom, 593 U. S. ___, ___,

141 S. Ct. 1294, 209 L. Ed. 2d 355 (2021) (per curiam); see

also Fulton, 593 U. S., at ___, 141 S. Ct. 1868, 210 L. Ed.

2d 137; Lukumi, 508 U. S., at 542-546. And again, this

description applies to Maine’s rule. The State allows those

invoking medical reasons to avoid the vaccine mandate

on the apparent premise that these individuals can take

alternative measures (such as the use of protective gear

and regular testing) to safeguard their patients and coworkers. But the State refuses to allow those invoking

religious reasons to do the very same thing.

Unpack this point further. Maine has offered four

justifications for its vaccination mandate:

(1) P rotecting indiv idual patients from

contracting COVID-19;

(2) Protecting individual healthcare workers

from contracting COVID-19;

Appendix A

(3) P r ot e c t i ng t he S t at e ’s he a lt hc a r e

infrastructure, including the work force, by

preventing COVID-caused absences that could

cripple a facility’s ability to provide care; and

(4) Reducing the likelihood of outbreaks within

healthcare facilities caused by an infected

healthcare worker bringing the virus to work.

App. to Brief for Respondents, Decl. of Nirav

Shah, p. 43, ¶56 (Shah Decl.).

Now consider the first, second, and fourth of these.

No one questions that protecting patients and healthcare

workers from contracting COVID-19 is a laudable objective.

But 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.

A State may not assume “the best” of individuals engaged

in their secular lives while assuming “the worst” about

the habits of religious persons. Roberts v. Neace, 958 F.

3d 409, 414 (CA6 2020). In fact, the applicants before us

have already demonstrated a serious commitment to

public health during this pandemic and expressly stated

that they, no less than those seeking a medical exemption,

will abide by rules concerning protective gear, testing, or

the like. Complaint ¶76.

That leaves Maine’s third asserted interest: protecting

the State’s healthcare infrastructure. According to Maine,

Appendix A

“[a]n outbreak among healthcare workers requiring them

to quarantine, or to be absent . . . as a result of illness

caused by COVID-19, could cripple the facility’s ability to

provide care.” Shah Decl. 44, ¶56. But as we have already

seen, Maine does not dispute that unvaccinated religious

objectors and unvaccinated medical objectors are equally

at risk for contracting COVID-19 or spreading it to their

colleagues. Nor is it any answer to say that, if the State

required vaccination for medical objectors, they might

suffer side effects resulting in fewer medical staff available

to treat patients. If the State refuses religious exemptions,

religious workers will be fired for refusing to violate their

faith, which will also mean fewer healthcare workers

available to care for patients. Slice it how you will, medical

exemptions and religious exemptions are on comparable

footing when it comes to the State’s asserted interests.

The Court of Appeals found Maine’s rule neutral

and generally applicable due to an error this Court has

long warned against—restating the State’s interests

on its behalf, and doing so at an artificially high level

of generality. According to the court below, Maine’s

regulation sought to “protec[t] the health and safety of

all Mainers, patients, and healthcare workers alike.”

Doe v. Mills, ___ F. 4th ___, ___, 2021 U.S. App. LEXIS

31375, 2021 WL 4860328, *6 (CA1, Oct. 19, 2021). But

when judging whether a law treats a religious exercise

the same as comparable secular activity, this Court has

made plain that only the government’s actually asserted

interests as applied to the parties before it count—not

post-hoc reimaginings of those interests expanded to some

society-wide level of generality. Fulton, 593 U. S., at ___

(slip op., at 6); 141 S. Ct. 1868, 210 L. Ed. 2d 137; Tandon,

Appendix A

593 U. S., at ___ (slip op., at 2) 141 S. Ct. 1294, 209 L. Ed.

2d 355; Lukumi, 508 U. S., at 544-545. “At some great

height, after all, almost any state action might be said to

touch on ‘. . . public health and safety’ . . . and measuring

a highly particularized and individual interest” in the

exercise of a civil right “‘directly against . . . these rarified

values inevitably makes the individual interest appear the

less significant.’” Yellowbear v. Lampert, 741 F. 3d 48, 57

(CA10 2014) (quoting J. Clark, Guidelines for the Free

Exercise Clause, 83 Harv. L. Rev. 327, 330-331 (1969)).

This Court’s precedents “do not support such a lopsided

inquiry.” 741 F. 3d, at 57.

That takes us to the application of strict scrutiny. Strict

scrutiny requires the State to show that its challenged

law serves a compelling interest and represents the least

restrictive means for doing so. Lukumi, 508 U. S., at 546.

For purposes of resolving this application, I accept that

what we said 11 months ago remains true today—that

“[s]temming the spread of COVID-19” qualifies as “a

compelling interest.” Roman Catholic Diocese v. Cuomo,

592 U. S. ___, ___, 141 S. Ct. 63, 208 L. Ed. 2d 206 (2020)

(per curiam) (slip op., at 4). At the same time, I would

acknowledge that this interest cannot qualify as such

forever. Back when we decided Roman Catholic Diocese,

there were no widely distributed vaccines.1 Today there

1. Our opinion in Roman Catholic Diocese was published on

November 25, 2020. COVID-19 vaccines outside of clinical trials

weren’t available to the public until the following month. See P.

Loftus & M. West, First Covid-19 Vaccine Given to U. S. Public,

Wall Street J., Dec. 14, 2020, https: // www.wsj.com /articles/covid19-vaccinations-in-the-u-s-slated-to-begin-monday-11607941806.

Appendix A

are three. 2 At that time, the country had comparably few

treatments for those suffering with the disease. Today

we have additional treatments and more appear near. 3 If

human nature and history teach anything, it is that civil

liberties face grave risks when governments proclaim

indefinite states of emergency.

Assuming for present purposes that its interest

is a compelling one, Maine has not shown that its rule

represents the least restrictive means available to achieve

it. The State says that, to meet its four stated goals above,

90% of employees at covered health facilities must be

vaccinated. Shah Decl. 43, ¶54; State Respondents’ Brief in

Opposition 9. The State doesn’t offer evidence explaining

the selection of its 90% figure. But even taking it as

2. Over 200 million Americans, nearly seven in ten, have

received at least one dose of these vaccines. Nearly six in ten

Americans have been fully vaccinated, including about 85% of

those older than 65. See CDC, COVID-19 Vaccinations in the

United States, COVID Data Tracker (Oct. 28, 2021), http://covid.

cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-ratetotal. Among States, Maine has particularly high vaccination rates:

About 70% of its population has been fully vaccinated, good for

fourth-best in the Nation. See Maine Coronavirus Vaccination

Progress, USA Facts (Oct. 26, 2021), https://usafacts.org/

visualizations/covid-vaccine-tracker-states/state/maine.

3. C. Johnson, Merck’s Experimental Pill To Treat COVID-19

Cuts Risk of Hospitalization and Death in Half, the Pharmaceutical

Company Reports, Washington Post, Oct. 1, 2021, https://www.

washingtonpost.com/health/2021/10/01/pill-to-treat-covid/ (noting

that as of October 1, 2021, “[t]he United States moved a major step

closer . . . to having an easy-to-take pill to treat covid-19 available

in the nation’s medicine cabinet”).

10a

Appendix A

given, Maine does not explain how denying exemptions

to religious objectors is essential to its achieving that

threshold statewide, let alone in the applicants’ actual

workplaces. Had the State consulted its own website

recently, it would have discovered that, as of last month,

hospitals were already reporting a vaccination rate

of more than 91%, ambulatory surgical centers 92%,

and all other entities roughly 85% or greater.4 Current

numbers may be even higher. What’s more, healthcare

providers that employ four of the nine applicants in this

case already told the media more than a week ago that

they have reached 95% and 94% vaccination rates among

their employees. 5 Many other States have made do with a

religious exemption in comparable vaccine mandates. See

Brief for Becket Fund for Religious Liberty as Amicus

Curiae 13 (observing that the overwhelming majority

of States with similar mandates provide a religious

exemption). Maine’s decision to deny a religious exemption

in these circumstances doesn’t just fail the least restrictive

means test, it borders on the irrational.

4. Maine Center for Disease Control and Prevention, Maine

Health Care Worker COVID-19 Vaccination Dashboard (Oct. 27,

2021), https://www. maine.gov/dhhs/mecdc/infectious-disease/

immunization/publications/healthcare-worker-covid-vaccinationrates.shtml.

5. J. Lawlor, Maine Sees Jump in Vaccinations Among Health

Care Workers as Deadline Nears, Lewiston Sun J., Oct. 14, 2021,

https://www.sunjournal.com/2021/10/13/maine-reports-893-casesof-covid-19-over-a-4day-period (Northern Light Health reporting

95.5% vaccination rate, MaineHealth reporting a 94% rate).

11a

Appendix A

Looking to the other traditional factors also suggests

relief is warranted. Before granting a stay or injunctive

relief, we ask not only whether a litigant is likely to prevail

on the merits but also whether denying relief would lead

to irreparable injury and whether granting relief would

harm the public interest. Roman Catholic Diocese, 592

U. S., at ___-___, 141 S. Ct. 63, 208 L. Ed. 2d 206 (slip op.,

at 5-7); see also 28 U. S. C. §1651(a). The answer to both

questions is clear. This Court has long held that “ [t]he loss

of First Amendment freedoms, for even minimal periods

of time, unquestionably constitutes irreparable injury.

” Elrod v. Burns, 427 U. S. 347, 373, 96 S. Ct. 2673, 49

L. Ed. 2d 547 (1976) (plurality opinion). And as we have

seen, Maine has so far failed to present any evidence that

granting religious exemptions to the applicants would

threaten its stated public health interests any more than

its medical exemption already does.

This 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. I would grant relief.

12a

Appendix

B AND ORDER

APPENDIX B —

OPINION

AFFIRMING DENIAL OF MOTION FOR

PRELIMINARY INJUNCTION OF THE UNITED

STATES COURT OF APPEALS FOR THE FIRST

CIRCUIT, FILED OCTOBER 19, 2021

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 21-1826

JANE DOES 1-6; JOHN DOES 1-3;

JACK DOES 1-1000; JOAN DOES 1-1000,

Plaintiffs-Appellants,

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.

October 19, 2021, Decided

13a

Appendix B

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF MAINE.

Hon. Jon D. Levy, U.S. District Judge

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

14a

Appendix B

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. Doe v. Mills, No.

1:21-cv-242-JDL, 2021 U.S. Dist. LEXIS 197251, 2021

WL 4783626 (D. Me. Oct. 13, 2021).

We affirm.

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

1. It made the same change to the laws requiring publicschool students and nursery-school employees to be vaccinated.

See 2019 Me. Laws ch. 154, §§ 3-4, 6, 10.

15a

Appendix B

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

16a

Appendix B

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/pressreleases/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

2. Before vaccines became available, state officials had taken

many steps to curb the spread of COVID-19. See Calvary Chapel

of Bangor v. Mills, No. 1:20-CV-156-NT, 2021 U.S. Dist. LEXIS

105400, 2021 WL 2292795, at *1-7 (D. Me. June 4, 2021) (describing

efforts), appeal filed, No. 21-1453 (1st Cir. docketed June 14, 2021).

17a

Appendix B

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.

•

Ma ine CDC also distr ibuted 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

18a

Appendix B

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://w w w.

ma ine.gov/gover nor/mi lls/news/gover normills-announces-winner-dont-miss-your-shotvaccinationland-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)

3. “While our review is generally limited to the record below,

see Fed. R. App. P. 10, we may take judicial notice of facts which are

‘capable of being determined by an assuredly accurate source.’”

Pietrangelo v. Sununu, No. 21-1366, 2021 U.S. App. LEXIS 29678,

2021 WL 4487850, at *1 n.1 (1st Cir. Oct. 1, 2021) (citations omitted)

(quoting United States v. Hoyts Cinemas Corp., 380 F.3d 558, 570

(1st Cir. 2004)).

19a

Appendix B

https://www.maine.gov/covid19/vaccines/dashboard; see

also Pietrangelo, 2021 U.S. App. LEXIS 29678, 2021 WL

4487850, at *1 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 both

from COVID-19 and from other conditions. That problem

is particularly acute in Maine because, as Maine CDC’s

director stated, “the size of Maine’s healthcare workforce

is limited, such that the impact of any outbreaks among

4. The emergency rule defines a healthcare facility as “a

licensed nursing facility, residential care facility, Intermediate

Care Facility for Individuals with Intellectual Disabilities (ICF/

IID), multi-level healthcare facility, hospital, or home health

agency subject to licensure by [Maine HHS].”

20a

Appendix B

personnel is far greater than it would be in a state with

more extensive healthcare delivery systems.” Maine

CDC determined that at least 90% of a population must

be vaccinated to prevent community transmission of the

delta variant. No county in Maine, including those that

have the highest vaccination rates, has achieved the 90%

level. Maine CDC, COVID-19 Vaccination Dashboard,

supra. Many counties are at much lower levels. Id. And

while community has a broader meaning than workers at

a particular healthcare facility, even at those facilities the

90% figure has not been reached. At the end of the last

monthly reporting period before Maine CDC adopted the

emergency rule, ambulatory surgical centers achieved

85.9% of workers vaccinated; hospitals hit only 80.3%,

nursing homes reached 73.0%, and intermediate care

facilities for individuals with intellectual disabilities only

68.2%. On August 11, four of fourteen known COVID-19

outbreaks in Maine were occurring at health care

facilities with “strong infection control programs.”5 Those

outbreaks were mostly caused by healthcare workers

bringing COVID-19 into the facilities.

In adopting its emergency rule, Maine CDC considered

the adequacy of other measures to arrest the crisis in its

healthcare facilities and to protect both its healthcare

infrastructure and its residents. Maine CDC considered

the following alternatives to mandatory vaccination:

5. By September 3, that number would jump to nineteen out

of thirty-three outbreaks.

21a

Appendix B

• Weekly or twice weekly testing. Maine CDC found

that individuals infected with the delta variant can

transmit the virus within twenty-four to thirty-six

hours of exposure. It thus concluded that periodic

testing would be ineffective.

• Daily testing. Maine CDC found that accurate

polymerase chain reaction tests take twenty-four to

seventy-two hours to provide results and that rapid

antigen tests are too inaccurate and too hard to

reliably secure. It thus concluded that daily testing

would be ineffective.

• Vaccination exemptions for individuals previously

infected with COVID-19. Maine CDC found that

the scientific evidence was uncertain as to whether

a previously infected individual would develop

sufficient immunity to prevent transmission. It

thus concluded that it could not justify such an

exemption.

• Continued reliance on personal protective

equipment. Maine CDC found that the use of

personal protective equipment reduced but did not

eliminate the possibility of spreading COVID-19

in healthcare facilities. It thus concluded that

mandating personal protective equipment alone

would be ineffective.

See Doe, 2021 U.S. Dist. LEXIS 197251, 2021 WL 4783626,

at *3. For these stated reasons, Maine CDC concluded that

none of its available alternatives to mandatory vaccination

22a

Appendix B

would allow it to protect its healthcare infrastructure and

its residents.

On August 12, Maine HHS and Maine CDC issued an

emergency rule adding COVID-19 to the list of diseases

against which healthcare workers must be vaccinated.6

Pointing to a 300% increase in COVID-19 cases between

June 19 and July 23 and the danger of the delta variant,

the agencies said the rule was necessary because

“[t]he presence of the highly contagious [d]elta variant in

Maine constitutes an imminent threat to public health,

safety, and welfare.” In announcing the rule, Governor

Mills explained that “[healthcare] workers perform a

critical role in protecting the health of Maine people, and

it is imperative that they take every precaution against

this dangerous virus, especially given the threat of the

highly transmissible [d]elta variant.” The rule requires

healthcare facilities to “exclude[] from the worksite”

for the rest of the public health emergency employees

who have not been vaccinated. In interpretive guidance,

Maine CDC clarified that the mandate does not extend

to those healthcare workers who do not work on-site at a

designated facility, for example those who work remotely.

Thus, employers may accommodate some workers’

6. Maine agencies may adopt temporary rules on an

emergency basis without going through regular notice and

comment procedures “to avoid an immediate threat to public

health, safety or general welfare.” Me. Rev. Stat. Ann. tit. 5, § 8054;

see Ms. S. v. Reg’l Sch. Unit 72, 829 F.3d 95, 105-06 (1st Cir. 2016)

(describing Maine rulemaking procedures). Along with adopting

the emergency rule, Maine CDC has proposed a permanent rule,

which is going through a notice and comment period.

23a

Appendix B

requests for religious exemptions provided that the

accommodations do not allow unvaccinated workers to

enter healthcare facilities. Maine HHS and Maine CDC

later announced that they would not begin enforcing the

rule until October 29.

Seeking to enjoin the emergency rule, the appellants

filed suit in the District of Maine. The appellants are

unvaccinated Maine healthcare workers (and a healthcare

provider) who object to vaccination with any of the three

available COVID-19 vaccines. They claim that their

religious beliefs prohibit them from using any product

“connected in any way with abortion.” The appellants

allege that Johnson & Johnson/Janssen used cells

ultimately derived from an aborted fetus to produce its

vaccine and that Moderna and Pfizer/BioNTech used the

same type of cells in researching their vaccines. So, the

appellants say, their religion prohibits them from being

vaccinated. At least one appellant has lost her job with

appellee Genesis Healthcare because she refused to get

vaccinated. All the appellants allege causes of action under

the Free Exercise Clause, the Equal Protection Clause,

the Supremacy Clause, Title VII, and 42 U.S.C. § 1985.

The appellants sought an ex parte temporary

restraining order and a preliminary injunction. The

district court denied the motion for a temporary

restraining order, concluding that the appellants failed

to satisfy the requirements of Federal Rule of Civil

Procedure 65(b)(1). It then received briefing and heard

argument on the motion for a preliminary injunction.

Following the hearing, the district court denied the motion

24a

Appendix B

in a forty-one-page decision. Doe, 2021 U.S. Dist. LEXIS

197251, 2021 WL 4783626, at *2.

The appellants sought and we denied an injunction

pending appeal. We expedited proceedings and now

resolve the appellants’ appeal of the district court’s order

denying a preliminary injunction.

II.

We review the district court’s factual findings for

clear error, its legal conclusions de novo, and its ultimate

decision to deny the preliminary injunction for abuse of

discretion.7 Norris ex rel. A.M. v. Cape Elizabeth Sch.

Dist., 969 F.3d 12, 21 (1st Cir. 2020).

“A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that

he is likely to suffer irreparable harm in the absence of

7. The appellants claim that our review of the facts in First

Amendment cases must be de novo. The free speech cases they

cite for that proposition, however, describe the deference due to

a jury’s verdict and turn on mixed questions of fact and law. See

Sindi v. El-Moslimany, 896 F.3d 1, 14 (1st Cir. 2018) (citing Bose

Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 104 S. Ct.

1949, 80 L. Ed. 2d 502 (1984)); Veilleux v. Nat’l Broad. Co., 206

F.3d 92, 106 (1st Cir. 2000) (citing Bose). They do not stand for the

proposition that our review of all factual findings is de novo. See

Bose, 466 U.S. at 499-501 (explaining that in defamation cases,

courts must engage in independent review of mixed questions of

fact and law but that Rule 52(a) still applies to findings of fact).

Nor is the distinction material as the appellants largely do not

contest the district court’s factual findings.

25a

Appendix B

preliminary relief, that the balance of equities tips in his

favor, and that an injunction is in the public interest.”

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129

S. Ct. 365, 172 L. Ed. 2d 249 (2008).

Applying the standard of review set forth above,

we begin our analysis with the appellants’ free exercise

claims.

The First Amendment’s Free Exercise Clause,

as incorporated against the states by the Fourteenth

Amendment, protects religious liberty against government

interference. See Cantwell v. Connecticut, 310 U.S. 296,

303-04, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). When

a religiously neutral and generally applicable law

incidentally burdens free exercise rights, we will sustain

the law against constitutional challenge if it is rationally

related to a legitimate governmental interest. See Fulton

v. City of Philadelphia, 141 S. Ct. 1868, 1876, 210 L. Ed. 2d

137 (2021) (citing Emp. Div. v. Smith, 494 U.S. 872, 878-82,

110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990)). When a law is not

neutral or generally applicable, however, we may sustain

it only if it is narrowly tailored to achieve a compelling

governmental interest. Id. at 1881 (citing Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

546, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993)).

26a

Appendix B

To be neutral, a law may not single out religion or

religious practices. See Lukumi, 508 U.S. at 532-534.

“Government fails to act neutrally when it proceeds in a

manner intolerant of religious beliefs or restricts practices

because of their religious nature.” Fulton, 141 S. Ct. at

1877 (citing Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts.

Comm’n, 138 S. Ct. 1719, 1730-32, 201 L. Ed. 2d 35 (2018),

and Lukumi, 508 U.S. at 533).

To be generally applicable, a law may not selectively

burden religiously motivated conduct while exempting

comparable secularly motivated conduct. See Lukumi,

508 U.S. at 543. “A law is not generally applicable if it

‘invite[s]’ the government to consider the particular

reasons for a person’s conduct by providing ‘a mechanism

for individualized exemptions.’” Fulton, 141 S. Ct. at 1877

(quoting Smith, 494 U.S. at 884) (alteration in original).

Under that rule, if a state reserves the authority to “grant

exemptions based on the circumstances underlying each

application,” it must provide a compelling reason to

exclude “religious hardship” from its scheme. Id. (quoting

Smith, 494 U.S. at 884). Nor is a law generally applicable

“if it prohibits religious conduct while permitting secular

conduct that undermines the government’s asserted

interests in a similar way.” Id. (citing Lukumi, 508 U.S.

at 542-46).

We see no error in the district court’s conclusion that

the appellants have not met their burden of showing a

likelihood of success on any aspect of their free exercise

claims.

27a

Appendix B

The appellants argue that the emergency rule is not

neutral and is not generally applicable. They have shown

no probability of success on those issues.

To start with, the rule is facially neutral, see Trump

v. Hawaii, 138 S. Ct. 2392, 2418, 201 L. Ed. 2d 775 (2018),

and no argument has been developed to us that the state

singled out religious objections to the vaccine “because

of their religious nature.” Fulton, 141 S. Ct. at 1877

(emphasis added). The state legislature removed both

religious and philosophical exemptions from mandatory

vaccination requirements, and thus did not single out

religion alone.

The rule is also generally applicable. It applies

equally across the board. The emergency rule does not

require the state government to exercise discretion in

evaluating individual requests for exemptions. Unlike,

for example, Sherbert v. Verner, 374 U.S. 398, 83 S. Ct.

1790, 10 L. Ed. 2d 965 (1963), in which the government

had discretion to decide whether “good cause” existed

to excuse the requirement of an unemployment benefits

scheme, id. at 399-401, 406, here there is no “mechanism

for individualized exemptions” of the kind at issue in

Fulton, 141 S. Ct. at 1877 (quotation marks and citation

omitted). Instead, there is a generalized “medical

exemption . . . available to an employee who provides

a written statement from a licensed physician, nurse

practitioner or physician assistant that, in the physician’s,

nurse practitioner’s or physician assistant’s professional

judgment, immunization against one or more diseases may

be medically inadvisable.” Me. Rev. Stat. tit. 22, § 802(4-B).

28a

Appendix B

No case in this circuit and no case of the Supreme Court

holds that a single objective exemption renders a rule not

generally applicable. See Maryville Baptist Church, Inc.

v. Beshear, 957 F.3d 610, 614 (6th Cir. 2020) (per curiam)

(“As a rule of thumb, the more exceptions to a prohibition,

the less likely it will count as a generally applicable, nondiscriminatory law.”).

The rule is also generally applicable because it

does not permit “secular conduct that undermines the

government’s asserted interests in a similar way.” Fulton,

141 S. Ct. at 1877; see Tandon v. Newsom, 141 S. Ct. 1294,

1296, 209 L. Ed. 2d 355 (2021) (“[W]hether two activities

are comparable for purposes of the Free Exercise Clause

must be judged against the asserted government interest

that justifies the regulation at issue.”). We conclude that

exempting from vaccination only those whose health would

be endangered by vaccination does not undermine Maine’s

asserted interests here: (1) ensuring that healthcare

workers remain healthy and able to provide the needed

care to an overburdened healthcare system; (2) protecting

the health of the those in the state most vulnerable to

the virus -- including those who are vulnerable to it

because they cannot be vaccinated for medical reasons;

and (3) protecting the health and safety of all Mainers,

patients and healthcare workers alike. See Smith, 494

U.S. at 874, 890 (upholding as constitutional a criminal

prohibition on peyote ingestion that exempted those to

whom “the substance has been prescribed by a medical

practitioner” with no exemption for religious use). Maine’s

three interests are mutually reinforcing. It must keep

its healthcare facilities staffed in order to treat patients,

29a

Appendix B

whether they suffer from COVID-19 or any other medical

condition. To accomplish its three articulated goals, Maine

has decided to require all healthcare workers who can be

vaccinated safely to be vaccinated.

Providing a medical exemption does not undermine

any of Maine’s three goals, let alone in a manner similar

to the way permitting an exemption for religious objectors

would. Rather, providing healthcare workers with

medically contraindicated vaccines would threaten the

health of those workers and thus compromise both their

own health and their ability to provide care. The medical

exemption is meaningfully different from exemptions to

other COVID-19-related restrictions that the Supreme

Court has considered. In those cases, the Supreme

Court addressed whether a state could prohibit religious

gatherings while allowing secular activities involving

everyday commerce and entertainment and it concluded

that those activities posed a similar risk to physical health

(by risking spread of the virus) as the prohibited religious

activities. See, e.g., Tandon, 141 S. Ct. at 1297 (rejecting

the California order that restricted worship but permitted

larger groups to gather in “hair salons, retail stores,

personal care services, movie theaters, private suites at

sporting events and concerts, and indoor restaurants”);

Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct.

63, 66-68, 208 L. Ed. 2d 206 (2020) (per curiam) (rejecting

the New York order that restricted worship but permitted

larger groups to gather at “acupuncture facilities, camp

grounds, garages, as well as many [businesses] whose

services are not limited to those that can be regarded

as essential, such as all plants manufacturing chemicals

30a

Appendix B

and microelectronics and all transportation facilities”);

see also S. Bay United Pentecostal Church v. Newsom,

141 S. Ct. 716, 717, 209 L. Ed. 2d 22 (2021) (statement of

Gorsuch, J., joined in part by four justices) (criticizing the

California order that restricted worship but permitted

larger groups to gather in “most retail” establishments

and “other businesses”). In contrast to those cases, Maine

CDC’s rule offers only one exemption, and that is because

the rule itself poses a physical health risk to some who

are subject to it. 8 Thus, carving out an exception for those

people to whom that physical health risk applies furthers

Maine’s asserted interests in a way that carving out an

exemption for religious objectors would not.

Unlike the medical exemption, a religious exemption

would not advance the three interests Maine has

articulated. In contrast to the restrictions at issue in

Tandon, Roman Catholic Diocese, and South Bay United,

Maine’s rule does not rest on assumptions about the public

health impacts of various secular or religious activities.

Instead, it requires all healthcare workers to be vaccinated

as long as the vaccination is not medically contraindicated

-- that is as long as it furthers the state’s health-based

interests in requiring vaccination. Thus, the comparability

concerns the Supreme Court flagged in the Tandon line of

cases are not present here. See Tandon, 141 S. Ct. at 1296

(“Comparability [for free exercise purposes] is concerned

with the risks various activities pose, not the reasons why

people gather.” (emphasis added)). By analogy, if Maine’s

8. Those risks can be serious and even life threatening. For

example, the COVID-19 vaccines are contraindicated for those

who have had allergic reactions to a component of the vaccines.

31a

Appendix B

emergency rule were an occupancy limit, it would apply

to all indoor activities equally based on facility size, but it

would exempt healthcare facilities. That analogous policy

would serve the state’s goal of protecting public health,

while maximizing the number of residents able to access

healthcare and thus minimizing health risks. Such a rule

would not fall afoul of the Supreme Court’s decisions.

See Tandon, 141 S. Ct. at 1296. The rule is generally

applicable. And it easily satisfies rational basis review.

Strict scrutiny does not apply here. But even if it did,

the plaintiffs still have no likelihood of success.

“Stemming the spread of COVID-19 is unquestionably

a compelling interest . . . .” Roman Cath. Diocese of

Brooklyn, 141 S. Ct. at 67; see also Workman v. Mingo

Cnty. Bd. of Educ., 419 F. App’x 348, 353 (4th Cir. 2011)

(“[T]he state’s wish to prevent the spread of communicable

diseases clearly constitutes a compelling interest.”). Few

interests are more compelling than protecting public

health against a deadly virus. In promulgating the rule

at issue here, Maine has acted in response to this virus

to protect its healthcare system by meeting its three

goals of preventing the overwhelming of its healthcare

system, protecting those most vulnerable to the virus and

to an overwhelmed healthcare system, and protecting the

health of all Maine residents. In focusing the vaccination

requirement on healthcare workers, Maine has taken

steps to increase the likelihood of protecting the health

of its population, particularly those who are most likely

to suffer severe consequences if they contract COVID-19

or are denied other needed medical treatment by an

overwhelmed healthcare system.

32a

Appendix B

We begin by asking “not whether the [state] has a

compelling interest in enforcing its [rule] generally, but

whether it has such an interest in denying an exception”

to plaintiffs. Fulton, 141 S. Ct. at 1881. If any healthcare

workers providing such services, including the plaintiffs,

were exempted from the policy for non-health-related

reasons, the most vulnerable Mainers would be threatened.

Cf. id. at 1881-82.

Maine also reasonably used all the tools available

to fight contagious diseases. Its rule, thus, does not fail

narrow tailoring.9 The available tools roughly fit into two

categories. The first category involves pharmaceutical

interventions. The second involves non-pharmaceutical

inter ventions. Maine CDC and Maine HHS have

considered their experience with both categories.

The first category itself contains two types of

interventions. The COVID-19 vaccines protect against

infection and lower the risk of adverse health consequences,

9. The appellants claim they were forced to bear the burden

of showing that the regulation failed strict scrutiny. The district

court’s decision belies that claim. See Doe, 2021 U.S. Dist. LEXIS

197251, 2021 WL 4783626, at *12 (“The government must also

demonstrate that it ‘seriously undertook to address the problem

with less intrusive tools readily available to it’ and ‘that it

considered different methods that other jurisdictions have found

effective.’” (quoting McCullen v. Coakley, 573 U.S. 464, 494, 134

S. Ct. 2518, 189 L. Ed. 2d 502 (2014)). As we do here, the district

court required Maine to show that its rule satisfied strict scrutiny.

Maine met that burden by showing that it considered alternative

means of achieving its goals and that those alternatives were

inadequate.

33a

Appendix B

including death, should a vaccinated person become

infected. Vaccination also reduces a person’s risk of

transmitting COVID-19 to others. There are also

treatments that can be administered to infected patients

once they have contracted the disease. Because those

treatments do not prevent infections, Maine established in

the record that reliance on such treatment options would

not meet its goals.

The second category is one in which Maine actively

engaged before the mandate and included measures like

testing, masking, and social distancing. Those measures

proved to be ineffective in meeting Maine’s goals. As to

testing, Maine CDC concluded that regular testing cannot

prevent transmission given how quickly an infected person

can transmit the delta variant and how long accurate

testing takes. And Maine experienced multiple COVID-19

outbreaks in healthcare facilities adhering to mandatory

masking and distancing rules. Thus, Maine has shown

that non-pharmaceutical interventions are inadequate to

meet its goals. See Doe, 2021 U.S. Dist. LEXIS 197251,

2021 WL 4783626, at *3, *12-14 (making factual findings

about the inadequacy of non-pharmaceutical alternatives).

Maine has demonstrated that it has tried many

alternatives to get its healthcare workers vaccinated

short of a mandate. These include vaccine prioritization,

worksite vaccine administration, and prizes for vaccination.

But both its healthcare-worker-focused efforts and

general incentives have failed to achieve the at least 90%

vaccination rate required to halt community transmission

of the delta variant. Maine has no alternative to meet

34a

Appendix B

its goal other than mandating healthcare workers to be

vaccinated. See id.

As part of our narrow tailoring analysis, we consider

whether the rule is either under- or overinclusive. See

Lukumi, 508 U.S. at 546. The rule is not. The regulation

applies to all healthcare workers for whom a vaccine is

not medically contraindicated. Indeed, eliminating the

only exemption would likely be unconstitutional itself.

See Jacobson v. Massachusetts, 197 U.S. 11, 38-39, 25

S. Ct. 358, 49 L. Ed. 643 (1905). Nor is the regulation

overinclusive. It does not extend beyond the narrow

sphere of healthcare workers, limiting the universe of

people covered to those who regularly enter healthcare

facilities. The emergency rule is thus focused to achieve

the state’s goal of keeping its residents safe because it

requires vaccination only of those most likely to come into

regular contact with those for whom the consequences of

contracting COVID-19 are likely to be most severe.

Out-of-circuit authorities to the contrary are

distinguishable and not persuasive. The appellants stress

Fraternal Order of Police Newark Lodge No. 12 v. City of

Newark, 170 F.3d 359 (3d Cir. 1999) (Alito, J.), in which the

Third Circuit prohibited a police department from offering

medical but not religious exemptions to its facial hair policy.

It applied strict scrutiny to the policy after determining

that the police department’s disparate allowance of

exemptions suggested a discriminatory intent. Id. at 365.

But critically, the police department sought to justify its

policy by pointing to its interest in a uniform appearance

among police officers. Id. at 366. Thus, the Third Circuit

35a

Appendix B

concluded, the medical exemptions undermined the

police department’s interests, which “indicate[d] that the

[d]epartment has made a value judgment that secular (i.e.,

medical) motivations for wearing a beard are important

enough to overcome its general interest in uniformity

but that religious motivations are not.” Id. But, in doing

so, the court also distinguished the police department’s

exemption from the no-beard policy for undercover officers,

explaining that the undercover officer exemption “does

not undermine the [d]epartment’s interest in uniformity

because undercover officers obviously are not held out to

the public as law enforcement.” Id. (quotation omitted).

The court further recognized that the very restriction

on a controlled substance that the Supreme Court upheld

in Smith contained an exemption permitting use of the

substance for individuals to whom the substance “ha[d]

been prescribed by a medical practitioner.” Id. (quoting

Smith, 494 U.S. at 874). Neither this medical prescription

exemption in Smith, the court explained, nor the exemption

for undercover officers, “trigger heightened scrutiny

because the Free Exercise Clause does not require the

government to apply its laws to activities that it does not

have an interest in preventing.” Id. Here, in contrast,

the medical exemptions support Maine’s public health

interests. Maine would hardly be protecting its residents

if it required them to accept medically contraindicated

treatments. Rather than undermine Maine’s asserted

governmental interest, the health exemption supports it.

Therefore, Maine’s providing medical but not religious or

philosophical exemptions does not suggest an improper

motive.

36a

Appendix B

Nor do the appellants find support in their citation of

the Sixth Circuit’s recent decision denying a stay pending

appeal of a preliminary injunction in Dahl v. Board of

Trustees of Western Michigan University, No. 21-2945,

2021 U.S. App. LEXIS 30153, 2021 WL 4618519 (6th Cir.

Oct. 7, 2021) (per curiam). In Dahl, the District Court for

the Western District of Michigan preliminarily enjoined

a state university from requiring student-athletes to be

vaccinated in order to participate in athletic activities.

2021 U.S. App. LEXIS 30153, [WL] at *1. The university’s

policy provided that “[m]edical or religious exemptions

and accommodations will be considered on an individual

basis.” 2021 U.S. App. LEXIS 30153, [WL] at *4. The

Sixth Circuit held that the policy provided a “mechanism

for individualized exemptions,” applied strict scrutiny, and

held that the policy was not narrowly tailored to meet the

university’s goals. 2021 U.S. App. LEXIS 30153, [WL] at

*4-5. The emergency rule here is materially different from

the university’s policy in Dahl. First, Maine’s emergency

rule does not allow any government official discretion

to consider the merits of an individual’s request for an

exemption. Even so and even assuming that strict scrutiny

applies, Maine has narrowly tailored its rule. That

conclusion follows from the second key distinction between

this case and Dahl: the vaccination requirement in Dahl

required vaccination only of athletes, not of the thousands

of other students with whom the athletes may live, study,

eat, and socialize. See 2021 U.S. App. LEXIS 30153,

[WL] at *5. In contrast, the Maine rule covers everyone

who works with the medically vulnerable population in

healthcare facilities. Unlike the university’s athletesonly policy, Maine’s emergency rule is not underinclusive

37a

Appendix B

even under Dahl because it encompasses every employee

working in a setting posing a serious risk of COVID-19

exposure and transmission.

Finally, the appellants’ reliance on recent decisions

in New York does not advance their cause. See Dr. A. v.

Hochul, No. 1:21-cv-1009, 2021 U.S. Dist. LEXIS 199419,

2021 WL 4734404 (N.D.N.Y. Oct. 12, 2021) (granting

preliminary injunction); see also We the Patriots USA, Inc.

v. Hochul, No. 21-2179 (2d Cir. Sept. 30, 2021) (unpublished

order) (granting in part injunction pending appeal). In Dr.

A., a group of healthcare workers challenged under the

Free Exercise Clause an emergency regulation issued

by the New York State Public Health & Health Planning

Council, which required most healthcare workers in that

state to be vaccinated against COVID-19.10 The Maine

regulation here is distinguishable from the New York

regulation at issue in Dr. A. Eight days after New York

officials promulgated a version of the regulation containing

a religious exemption, they amended the regulation to

“eliminate the religious exemption.” 2021 U.S. Dist.

LEXIS 199419, 2021 WL 4734404, at *8. In light of that

change, Dr. A. found that state officials had singled out

religious believers through a “religious gerrymander.”

Id. In contrast, Maine’s legislature eliminated religious

and philosophical exemptions to mandatory vaccination

in May 2019 and Maine voters approved the law in March

2020. That timeline does not support a claim of religious

10. The Dr. A. plaintiffs also raised Title VII claims. We

believe the Title VII analysis in Dr. A. is erroneous for the same

reasons the appellants’ Title VII claims fail here. See infra Part

II.A.2.

38a

Appendix B

gerrymandering. Nor have the appellants developed

a religious animus argument on appeal. Dr. A. is also

inapplicable because it found that New York had failed to

explain why the testing and masking alternatives offered

to medically exempt healthcare workers were inadequate.

2021 U.S. Dist. LEXIS 199419, 2021 WL 4734404, at *9-10.

In contrast, Maine has explained, and the district court

found, that testing and masking would not achieve Maine’s

vital goals to the extent that vaccination would. See Doe,

2021 U.S. Dist. LEXIS 197251, 2021 WL 4783626, at *14.

Further, unlike in Dr. A., Maine has demonstrated that

given the “limited” nature of its healthcare workforce and

its significant elderly population -- the highest in the nation

-- it has tried and failed to control “numerous COVID-19

outbreaks at health care facilities,” even after multiple

attempts to implement a variety of alternative measures.

In confronting the various risks to its own population and

its own healthcare delivery system, Maine’s rule does not

violate the Constitution. See S. Bay United Pentecostal

Church v. Newsom, 140 S. Ct. 1613, 1613-14, 207 L. Ed.

2d 154 (2020) (Roberts, C.J., concurring).

The appellants also assert claims against the state

appellees under the Equal Protection Clause, against

the hospitals under Title VII, and against all appellees

under the Supremacy Clause and 42 U.S.C. § 1985. We

find no error in the district court’s conclusion that they are

unlikely to succeed on any of those claims. See Doe, 2021

U.S. Dist. LEXIS 197251, 2021 WL 4783626, at *15-16.

39a

Appendix B

When a free exercise challenge fails, any equal

protection claims brought on the same grounds are

subject only to rational-basis review. Locke v. Davey, 540

U.S. 712, 720 n.3, 124 S. Ct. 1307, 158 L. Ed. 2d 1 (2004);

Wirzburger v. Galvin, 412 F.3d 271, 282 (1st Cir. 2005).

As the appellants are unlikely to succeed on their free

exercise claims, they are unlikely to succeed on their equal

protection claims as well.

The appellants’ Supremacy Clause argument rests on

their assertion that the hospitals (in concert with the state

appellees) have “claim[ed] that the protections of Title VII

are inapplicable in the State of Maine.” The record simply

does not support that argument. The parties agree that

Title VII is the supreme law of the land; the hospitals

merely dispute that Title VII requires them to offer the

appellants the religious exemptions they seek. See Cal.

Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 281-83,

107 S. Ct. 683, 93 L. Ed. 2d 613 (1987) (describing “narrow

scope” of preemption under Title VII). The appellants

have not shown their entitlement to an injunction under

the Supremacy Clause.

Nor do the appellants fare better in their Title VII

arguments for a preliminary injunction.11 To obtain a

11. Appellee Northern Light argues that the appellants

waived their request for injunctive relief by not including it in

their earlier request for an injunction pending appeal. We may

properly consider that request in our review here of the district

court’s denial of preliminary injunctive relief against all parties,

as the appellants have preserved and developed their argument

on appeal.

40a

Appendix B

preliminary injunction, the appellants must show that

they have inadequate remedies at law. See Ruckelshaus v.

Monsanto Co., 467 U.S. 986, 1019, 104 S. Ct. 2862, 81 L. Ed.

2d 815 (1984). When litigants seek to enjoin termination

of employment, money damages ordinarily provide an

appropriate remedy. To obtain an injunction, therefore,

the appellants must show a “genuinely extraordinary

situation.” Sampson v. Murray, 415 U.S. 61, 92 n.68, 94

S. Ct. 937, 39 L. Ed. 2d 166 (1974); cf. Matrix Grp. Ltd.

v. Rawlings Sporting Goods Co., 378 F.3d 29, 34 (1st Cir.

2004) (holding that an injunction is unavailable in ordinary

breach of contract action). The district court determined

that the appellants “have not shown that the injuries they

have suffered or may suffer -- the loss of their employment

and economic harm -- meet [that] high standard,” noting

that the appellants had not exhausted their administrative

remedies. Doe, 2021 U.S. Dist. LEXIS 197251, 2021 WL

4783626, at *16; see Fort Bend Cnty. v. Davis, 139 S.

Ct. 1843, 1850-51, 204 L. Ed. 2d 116 (2019) (describing

exhaustion requirements).

We find no error in that conclusion. Indeed, our

court has expressly declined to provide such preliminary

relief, and has declined to “reach the question of what

circumstances would justify a district court in granting

preliminary relief in such cases,” finding only that

“[a]t a minimum, an aggrieved person seeking preliminary

relief outside the statutory scheme for alleged Title VII

violations would have to make a showing of irreparable

injury sufficient in kind and degree to justify the

disruption of the prescribed administrative process.”

Bailey v. Delta Air Lines, Inc., 722 F.2d 942, 944 (1st

41a

Appendix B

Cir. 1983). The appellants have failed to demonstrate why

they are entitled to pre-termination relief despite their

failure to exhaust, given that the loss of employment

“does not usually constitute irreparable injury” except

in “the genuinely extraordinary situation” going beyond

mere cases of “insufficiency of savings or difficulties in

immediately obtaining other employment.” Sampson, 415

U.S. at 90, 91 n.68. That is true regardless of whether the

appellants have administratively exhausted their claims.

The appellants’ failure to exhaust does not put them in a

better position to seek extraordinary relief. And even if

the appellants were entitled to an injunction, they have

not shown a likelihood of success on the ultimate merits

questions. The hospitals need not provide the exemption

the appellants request because doing so would cause

them to suffer undue hardship. See Cloutier v. Costco

Wholesale Corp., 390 F.3d 126, 134 (1st Cir. 2004); see also

Trahan v. Wayfair Maine, LLC, 957 F.3d 54, 67 (1st Cir.

2020) (holding that “liability for failure to engage in an

interactive process depends on a finding that the parties

could have discovered and implemented a reasonable

accommodation through good faith efforts”).

Finally, the appellants are unlikely to succeed on

their § 1985 conspiracy claims. To properly plead a § 1985

conspiracy, the appellants “must allege the existence of

a conspiracy, allege that the purpose of the conspiracy

is ‘to deprive the plaintiff of the equal protection of the

laws,’ describe at least one overt act in furtherance of the

conspiracy, and ‘show either injury to person or property,

or a deprivation of a constitutionally protected right.’”

Alston v. Spiegel, 988 F.3d 564, 577 (1st Cir. 2021) (quoting

42a

Appendix B

Pérez-Sánchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st

Cir. 2008)). To allege that a civil rights conspiracy exists,

they “must plausibly allege facts indicating an agreement

among the conspirators to deprive [them] of [their] civil

rights.” Id. at 577-78 (quoting Parker v. Landry, 935 F.3d

9, 18 (1st Cir. 2019)). Here the appellants do not allege that

the hospitals had any role in the amendment of the statute

or issuance of the regulation, only that they supported the

regulation after the fact. Thus, their conspiracy claims

are unlikely to succeed.

Having found no error in the district court’s conclusion

that the appellants are unlikely to succeed on the merits

of any of their claims, we turn to its handling of the other

preliminary injunction factors.

Even if, arguendo, these claims presumptively cause

irreparable harm, we think the state has overcome any

such presumption. Further, because the appellants have

not shown a constitutional or statutory violation, they have

not shown that enforcement of the rule against them would

cause them any legally cognizable harm.

Finally, we review the district court’s balancing of

the equities and analysis of the public interest together,

as they “merge when the [g]overnment is the opposing

party.” Nken v. Holder, 556 U.S. 418, 435, 129 S. Ct. 1749,

173 L. Ed. 2d 550 (2009). Maine’s interest in safeguarding

its residents is paramount. While we do not diminish the

appellants’ liberty of conscience, we cannot find, absent

43a

Appendix B

any constitutional or statutory violation, any error in the

district court’s conclusion that the rule promotes strong

public interests and that an injunction would not serve the

public interest. See Doe, 2021 U.S. Dist. LEXIS 197251,

2021 WL 4783626, at *17.

III.

The district court’s order denying a preliminary

injunction is affirmed.

44a

Appendix C

APPENDIX C — PROCEEDINGS

AND ORDERS

OF THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT, DOCKETED

OCTOBER 15, 2021

No. 21A83

JOHN DOES 1-3, ET AL.,

Applicants

JANET T. MILLS, GOVERNOR

OF MAINE, ET AL.

Docketed:

October 15, 2021

Lower Ct:

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Case Numbers:

(21-1826)

45a

Appendix C

DATE

Oct 15 2021

Oct 19 2021

NAME

Attorneys

for Petitioners

PROCEEDINGS AND

ORDERS

Application (21A83)

for injunctive relief,

submitted to Justice

Breyer.

Application (21A83)

denied by Justice

Breyer. The application

is denied without

prejudice to applicants

filing a new application

after the Court of

Appeals issues a

decision on the merits

of the appeal, or if the

Court of Appeals does

not issue a decision by

October 29, 2021.

ADDRESS

PHONE

PO Box 540774

407-875-1776

Orlando,

32854

Counsel of Record

Mathew D. Staver

Party name:

Jane Doe, et al.

court@lc.org

46a

Appendix

APPENDIX D — ORDER

DENYING

EMERGENCY

MOTION FOR INJUNCTION PENDING APPEAL

OF THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT, FILED

OCTOBER 15, 2021

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 21-1826

JOHN DOES, 1-3; JACK DOES, 1-1000;

JANE DOES, 1-6; JOAN DOES, 1-1000,

Plaintiffs-Appellants,

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.

October 15, 2021, Entered

47a

Appendix D

Before Howard, Chief Judge, Lynch and Barron, Circuit

Judges.

ORDER OF COURT

The appellants’ emergency motion for an injunction

pending appeal is denied.

By the Court:

Maria R. Hamilton, Clerk

48a

Appendix

E DENYING

APPENDIX E

— ORDER

MOTION FOR INJUNCTION PENDING

From: cmecf@med.uscourts.gov

To: cmecfnef@med.uscourts.gov

Subject: Activity in Case 1:21-cv-00242-JDL JANE

DOES 1-6 et al v. MILLS et al Order on Motion

for Order

Date: Wednesday, October 13, 2021 4:50:00 PM

This is an automatic e-mail message generated by the CM/

ECF system. Please DO NOT RESPOND to this e-mail

because the mail box is unattended.

***NOTE TO PUBLIC ACCESS USERS*** Judicial

Conference of the United States policy permits attorneys

of record and parties in a case (including pro se litigants)

to receive one free electronic copy of all documents filed

electronically, if receipt is required by law or directed by

the filer. PACER access fees apply to all other users. To

avoid later charges, download a copy of each document

during this first viewing. However, if the referenced

document is a transcript, the free copy and 30 page limit

do not apply.

U.S. District Court

District of Maine

Notice of Electronic Filing

The following transaction was entered on 10/13/2021 at

4:49 PM EST and filed on 10/13/2021

49a

Appendix E

Case Name: JANE DOES 1-6 et al v. MILLS et al

Case Number: 1:21-cv-00242-JDL

Filer:

Document Number: 68(No document attached)

Docket Text:

ORDER re [67] Motion for Order - Plaintiffs have

filed an Emergency Request for Ruling on Pending

Motion for Injunction Pending Appeal. ECF No. 67.

The Plaintiffs have not filed a separate Motion for

an Injunction Pending Appeal. However, I will treat

the Emergency Request as a motion seeking a stay or

other relief authorized by Fed. R. App. P. 8(a)(1)(C).

For the reasons stated in the Order Denying Motion

for Preliminary Injunction (ECF No. 65), Plaintiffs

Motion for an Injunction Pending Appeal (ECF No. 67)

is ORDERED denied. By JUDGE JON D. LEVY. (aks)

1:21-cv-00242-JDL Notice has been electronically

mailed to:

DANIEL J. SCHMID dschmid@lc.org

HORATIO G. MIHET hmihet@lc.org

JA M ES R . ERW IN jer w i n@pierceat wood.com,

ngiachinta@pierceatwood.com

KATHARINE I. RAND krand@pierceatwood.com,

ngiachinta@pierceatwood.com

50a

Appendix E

KATHERINE LEE PORTER

kporter@eatonpeabody.com

KIMBERLY L. PATWARDHAN

kimberly.patwardhan@maine.gov,

laura.solisfarias@maine.gov

MATHEW D. STAVER court@lc.org

ROGER K. GANNAM rgannam@lc.org, court@LC.org

RYAN P. DUMAIS rdumais@eatonpeabody.com,

ahartikka@eatonpeabody.com,

ecabral@eatonpeabody.com

STEPHEN C. WHITING mail@whitinglawfirm.com

THOMAS A. KNOWLTON thomas.a.knowlton@maine.

gov, amy.oliver@maine.gov, pamela.chaput@maine.gov

VALERIE A. WRIGHT Valerie.A.Wright@maine.gov,

Laura.SolisFarias@maine.gov

1:21-cv-00242-JDL Notice has been delivered by other

means to:

51a

F THE UNITED

APPENDIX F —Appendix

ORDER OF

STATES DISTRICT COURT FOR THE DISTRICT

OF MAINE, FILED OCTOBER 13, 2021

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

1:21-cv-00242-JDL

JANE DOES 1-6 et al.,

Plaintiffs,

JANET T. MILLS, IN HER OFFICIAL CAPACITY

AS GOVERNOR OF THE STATE OF MAINE, et al.,

Defendants.

October 13, 2021, Decided;

October 13, 2021, Filed

ORDER ON PLAINTIFFS’ MOTION FOR

PRELIMINARY INJUNCTION

I. INTRODUCTION

Plaintiffs, eight individual healthcare workers and

one individual healthcare provider, seek a preliminary

injunction (ECF No. 3) prohibiting Janet T. Mills, Maine’s

Governor, and other named defendants from requiring

all employees of designated healthcare facilities to be

52a

Appendix F

vaccinated against the SARS-CoV-2 coronavirus—the

cause of COVID-19 infections—through the enforcement

of the rule, Immunization Requirements for Healthcare

Workers, 10-144-264 Me. Code R. § 1-7 (2021)1 (the

“Rule”), as amended August 12, 2021. The Plaintiffs

contend that the vaccination requirement violates their

First Amendment and other federal constitutional and

statutory rights because it does not exempt from its

requirements individuals whose sincerely held religious

beliefs cause them to object to being vaccinated against

COVID-19. Seven of the nine plaintiffs also contend that

their employers violated federal employment law by

refusing to grant them a religious exemption from the

vaccination requirement.

The Plaintiffs’ five-count Complaint (ECF No. 1)

names as defendants, in their official capacities, Governor

Mills; Dr. Nirav D. Shah, the Director of Maine CDC;

and Jeanne M. Lambrew, the Commissioner of the Maine

Department of Health and Human Services (“DHHS”)

(the “State Defendants”). The Complaint also names five

incorporated entities that operate healthcare facilities

in Maine: Defendants Genesis Healthcare of Maine,

LLC; Genesis Healthcare, LLC; Northern Light Health

Foundation; MaineHealth; and MaineGeneral Health (the

“Hospital Defendants”).

1. The Rule can be found at https://www.maine.gov/dhhs/mecdc/

rules/maine-cdc-rules.shtml (perma.cc/R3UM-ZBN3) (navigate to

the text of the Rule by selecting “Emergency,” and then choosing

“Emergency Rulemaking: 10-144 CMR Ch. 264 — Immunization

Requirements for Healthcare Workers.”).

53a

Appendix F

The Rule requires all employees of designated

healthcare facilities2 to receive their final dose of the

vaccination against the SARS-CoV-2 coronavirus by

September 17, 2021. 10-144-264 Me. Code R. § 5(A)(7)

(effective Aug. 12, 2021). On September 2, 2021, the

DHHS and Maine CDC announced that they would not

begin enforcing the Rule’s provisions until October 29,

2021, to allow additional time for employees of designated

healthcare facilities to comply with the Rule by receiving

their final vaccine dose by October 15. ECF No. 49-5 at

¶ 37. If granted, the preliminary injunction would prohibit

the Defendants from enforcing the Rule or terminating

the Plaintiffs’ employment based on their refusal to be

vaccinated against COVID-19.

A hearing on the Motion for Preliminary Injunction was

held on September 20, 2021. 3 After careful consideration

2. Under the Rule, designated healthcare facility “means a

licensed nursing facility, residential care facility, Intermediate

Care Facility for Individuals with Intellectual Disabilities (ICF/

IID), multi-level healthcare facility, hospital, or home health agency

subject to licensure by the State of Maine, Department of Health

and Human Services Division of Licensing and Certification.” The

Rule also applies to dental health practices (where dentists and/or

dental hygienists provide oral health care) and to Emergency Medical

Services operations. 10-144-264 Me. Code R. § 1(D), (E), (H) (Aug.

12, 2021). All references to “designated healthcare facilities” in this

Order include all of the entities subject to the Rule’s requirements.

3. The Plaintiffs’ Motion also included a request for an ex parte

temporary restraining order to the same effect. On August 26,

2021, after a conference with the Plaintiffs’ counsel, I denied that

portion of the Motion (ECF No. 11), concluding that the Plaintiffs

had not satisfied the requirements of Federal Rule of Civil Procedure

65(b)(1) for a temporary restraining order without providing notice

to the Defendants.

54a

Appendix F

and for the reasons that follow, I deny the Plaintiffs’

motion. (ECF No 3).

II. BACKGROUND

The parties have filed declarations and various

exhibits in support of their positions. Except where

otherwise noted, I have based my findings on these

documents.4 Additionally, I take judicial notice of certain

additional facts pertinent to the Motion. See In re Colonial

Mortgage Bankers Corp., 324 F.3d 12, 20 (1st Cir. 2003)

(noting that although a district court is generally limited to

examining the record, it may also consider “the documents

incorporated by reference in it, matters of public record,

and other matters susceptible to judicial notice”); see also

Loucka v. Lincoln Nat’l Life Ins. Co., 334 F. Supp. 3d 1,

8-9 (D.D.C. 2018) (“[T]he CDC’s Lyme-testing criteria and

procedures are a matter of public record, and it cannot

be reasonably questioned that the agency’s website is an

accurate source for those standards.”).

To provide the necessary background, I begin by

addressing: (A) COVID-19 and Maine’s response; (B) the

asserted religious beliefs that cause Plaintiffs to refuse

to be vaccinated against COVID-19; and (C) the origin of

4. The bulk of my findings regarding the COVID-19 pandemic

and the State’s response are derived from the Declaration of

Dr. Nirav D. Shah, Director of Maine CDC, (ECF No. 49-4) and

the Declaration of Sara Gagné-Holmes, Deputy Commissioner

of the DHHS (ECF No. 49-5). The Plaintiffs have not submitted

declarations that dispute the factual assertions made in the Shah

and Gagné-Holmes declarations.

55a

Appendix F

the emergency rulemaking that required that healthcare

workers be vaccinated against COVID-19.

A. The COVID-19 Global Pandemic

COVID-19 is a highly contagious disease that can

cause serious illness and death. ECF No. 49-4 at ¶¶ 11,

13, 15. In March 2020, the World Health Organization

declared COVID-19 to be a global pandemic. ECF No.

49-4 at ¶ 12. As of September 12, 2021, there were

approximately 219 million cases of COVID-19 worldwide.

ECF No. 49-4 at ¶ 13. Globally, over 4,550,000 people have

died from COVID-19, including approximately 660,000

deaths in the United States. ECF No. 49-4 at ¶ 13. As

of September 14, 2021, Maine had 81,177 total cases of

COVID-19, with 969 deaths. ECF No. 49-4 at ¶ 14.

Variants of the virus have emerged over the course of

the pandemic. ECF No. 49-4 at ¶ 20. The Delta variant,

which is now the predominant variant of all COVID-19

cases in the United States, ECF No. 49-4 at ¶ 50, is more

than twice as contagious as previous variants, ECF No.

49-4 at ¶ 22. As of August 27, 2021, the Delta variant

accounted for 96.7% of all positive COVID-19 samples

sequenced in Maine. ECF No. 49-4 at ¶ 50. A higher

level of contagiousness necessitates a correspondingly

higher vaccination rate among the public to achieve “herd

immunity.”5 ECF No. 49-4 at ¶ 28. With the emergence of

5. Herd immunity refers to the population-level phenomenon

whereby the community is sufficiently populated with vaccinated

individuals that unvaccinated individuals can enjoy a substantially

lessened risk of exposure and, therefore, of infection, as the

56a

Appendix F

the Delta variant, epidemiological models have increased

the projected vaccination rate needed to achieve herd

immunity from 70% to 90%. ECF No. 49-4 at ¶ 29.

Three COVID-19 vaccines are generally available:

Pfizer-BioNTech (the “Pfizer vaccine”), Moderna, and

Janssen (the “J&J vaccine”). ECF No. 49-4 at ¶ 40. All

three are effective against the Delta variant. ECF No.

49-4 at ¶ 43. Prior to their availability, the United States

Centers for Disease Control and Prevention (“CDC”)

and Maine CDC recommended that people wear face

coverings and practice physical distancing to limit the

spread of the virus. ECF No. 49-5 at ¶ 5. Once the first

vaccine doses became available in December 2020, Maine

CDC prioritized the vaccination of frontline healthcare

professionals and patient-facing staff through its eligibility

guidelines. ECF No. 49-5 at ¶¶ 15-18. The vaccines are

now widely available, and the State has worked in parallel

with hospital systems to encourage and facilitate the

widespread vaccination of Maine residents. ECF No. 49-5

at ¶¶ 19(f), 23-29.

The Rule was amended in August 2021 to add

COVID-19 to the list of infectious diseases for which

vaccinations are mandated for employees of designated

healthcare facilities. It represented the latest in a series of

measures employed by the State to combat the COVID-19

pandemic in healthcare settings. When formulating

the amendment, Maine CDC reviewed and considered

vaccinated individuals block the virus from spreading from person

to person. ECF No. 49-4 at ¶¶ 27-28.

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alternatives to mandating vaccinations, including the

measures then being employed by Maine healthcare

facilities, such as twice-weekly or daily testing, symptom

monitoring, and the use of personal protective equipment

(“PPE”). ECF No. 49-4 at ¶¶ 59-64. Maine CDC rejected

twice-weekly testing as inadequate given the speed at

which the Delta variant is transmitted—a person infected

with the Delta variant can transmit the infection to others

within just 24 to 36 hours of exposure. ECF No. 49-4 at

¶¶ 25, 61. Similarly, Maine CDC rejected daily antigen

testing as insufficient because the most effective tests

(polymerase-chain-reaction tests (“PCR”)) require 24 to

72 hours to produce results and the faster rapid-antigen

tests are too inaccurate and in short supply. ECF No. 49-4

at ¶ 62. Symptom monitoring as a standalone measure was

rejected because the virus can be transmitted by persons

who are asymptomatic. ECF No. 49-4 at ¶ 60. Similarly,

sole reliance on the use of PPE was rejected because,

even if worn correctly, PPE will not stop the spread of

COVID-19 in healthcare settings. ECF No. 49-4 at ¶ 64.

Healthcare facilities throughout Maine have used

a combination of the preceding measures to control the

COVID-19 virus since the beginning of the pandemic;

nonetheless, they have been the sites of numerous

outbreaks of the virus. ECF No. 49-4 at ¶ 65. The

number of outbreaks at designated healthcare facilities

rose substantially from early August to early September

2021, notwithstanding the fact that the hospitals where

the outbreaks occurred had strong infection control

programs in place. ECF No. 49-4 at ¶¶ 46-47. Most of

the healthcare facility outbreaks resulted from infected

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healthcare workers bringing COVID-19 into the facility.

ECF No. 49-4 at ¶ 48.

B. The Plaintiffs’ Objection to the COVID-19 Vaccines

The Plaintiffs are nine individuals who are identified

in the Complaint by pseudonyms. The Complaint alleges

that Jane Does 1 through 5 and John Does 2 and 3 are

healthcare workers employed by the Hospital Defendants.

John Doe 1 is a licensed healthcare provider who operates

his own practice. Jane Doe 6 is a healthcare worker

employed by John Doe 1.6, 7

6. The Complaint alleges the following facts regarding the

Plaintiffs:

Plaintiff Jane Doe 1 is a Maine resident and healthcare

worker employed by a healthcare facility operated by Defendant

MaineHealth in Maine. She submitted a written request for a

religious exemption from the vaccine mandate to her employer,

which was denied.

Plaintiff John Doe 1 is a licensed healthcare provider who

operates a designated healthcare facility in Maine. The Complaint

alleges that he and his employees have sincerely held religious

objections to receiving the COVID-19 vaccine, and that he faces

the closure of his practice and loss of his business license should he

consider or grant religious exemptions to the vaccine mandate to

his employees.

Plaintiff Jane Doe 6 is a healthcare worker employed by John

Doe 1. The Complaint is unclear as to whether she has requested a

religious exemption to the mandate from her employer, John Doe 1.

Plaintiffs Jane Doe 2 and John Doe 2 are both Maine residents

and healthcare workers employed by healthcare facilities operated

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Appendix F

The Plaintiffs7 object to receiving the COVID-19

vaccines based on their stated belief that “life is sacred

from the moment of conception[.]” ECF No. 1 at ¶ 54. They

contend that the development of the three COVID-19

vaccines employed or benefitted from the cell lines of

aborted fetuses. Specifically, the Plaintiffs object to the

Moderna and Pfizer vaccines because both are mRNA

vaccines which, the Plaintiffs claim, “have their origins in

research on aborted fetal cells lines.” ECF No. 1 at ¶ 65.

Plaintiffs also object to the J&J vaccine, asserting that

aborted fetal cell lines were used in both its development

and production. They allege that the use of fetal cell lines

to develop the vaccines runs counter to their sincerely

held religious beliefs that cause them to oppose abortion.

by Defendant Genesis Healthcare in Maine. Both submitted written

requests for religious exemptions from the vaccine mandate,

and Genesis Healthcare denied them. Jane Doe 2 was given until

August 23, 2021 to receive the vaccination and alleges that she was

terminated from her employment for failure to meet this deadline.

Plaintiffs Jane Does 3 and 4 and John Doe 3 are Maine residents

and healthcare workers employed by healthcare facilities operated

by Defendant Northern Light Health Foundation in Maine. Each

submitted written requests for religious exemptions from the vaccine

mandate, and each request was denied.

Plaintiff Jane Doe 5 is a Maine resident and healthcare

worker employed by a healthcare facility operated by Defendant

MaineGeneral Health in Maine. She submitted a written request

for a religious exemption from the vaccine mandate to her employer,

which was denied.

7. The Complaint also names Plaintiffs Jack Does 1 through

1000 and Joan Does 1 through 1000 as putative plaintiffs who have

not yet been joined in the action.

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Appendix F

In their responses to the Plaintiffs’ motion seeking

preliminary injunctive relief, the Defendants have

not challenged the sincerity of the Plaintiffs’ asserted

religious beliefs or that those beliefs are the reason for

the Plaintiffs’ refusal to be vaccinated. I therefore treat

these facts as established for purposes of deciding the

Preliminary Injunction Motion. 8

C. The COVID-19 Vaccine Mandate

Mandatory vaccination requirements for healthcare

workers in Maine were established long before the

emergence of COVID-19 in late 2019. Since 1989, Maine

has required by statute that hospitals and other healthcare

facilities ensure that their employees are vaccinated

against certain communicable diseases. 1989 Me. Legis.

Serv. 641 (West). When the statute, 22 M.R.S.A. § 802

(1989), was first enacted, it required vaccinations for

measles and rubella. Its stated purpose was to report,

prevent, and control infectious diseases that pose a

potential public health threat to the people of Maine. Id.

§ 802(1)(D) (1989).

The ensuing years witnessed the development of

new vaccines and vaccine recommendations, resulting

in frequent revisions to the statute. In response, the

8. Pursuant to the Court’s scheduling order entered on

September 2, 2021 (ECF No. 35), the deadline for the Defendants’

answers to the Complaint will be set once the Court has entered

an order on the Motion for Preliminary Injunction and the period

for filing an interlocutory appeal of that order has expired or, if an

interlocutory appeal is filed, the appeal has been finally determined.

As a result, the Defendants have not yet filed answers to the

Complaint.

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Appendix F

statute was again amended in 2001 to delegate to DHHS

the authority, by rulemaking, to designate mandatory

vaccines for healthcare workers at designated healthcare

facilities and for school children. 2001 Me. Legis. Serv. 147

(West). Accordingly, in 2002 DHHS promulgated and first

adopted the rule entitled “Immunization Requirements

for Healthcare Workers,” which is the Rule at issue

here. 10-144-264 Me. Code R. §§ 1-7 (Apr. 16, 2002). At

its adoption, the Rule required vaccinations for measles,

rubella, hepatitis B, mumps, and chickenpox. Id. at § 5(A).

From 2001 until 2019, the statute contained three

exemptions from the vaccination requirements for both

Maine healthcare workers and school children: a “medical

exemption” for those who provided “a physician’s written

statement that immunization against one or more diseases

may be medically inadvisable,” and both “religious [and]

philosophical exemption[s]” for those “who state[d] in

writing a sincere religious or philosophical belief that is

contrary to the immunization requirement.” 22 M.R.S.A.

§ 802(4-B)(A), (B) (2019). In 2019, the Maine Legislature

enacted legislation repealing the exemptions for religious

and philosophical beliefs, 2019 Me. Legis. Serv. 386

(West), thus leaving the medical exemption as the sole

exemption permitted under law. In response to this

legislative change, a statewide veto referendum regarding

the new law eliminating the religious and philosophical

exemptions was held in March 2020 pursuant to the

People’s Veto provision of the Maine Constitution, Me.

Const. art. IV, pt. III, § 17. The law was upheld, with over

72% of voters voting in favor of it.9 In April 2021, DHHS

9. Full results are available on the Maine Secretary of State

website. Dep’t of Sec’y of State, State of Maine, Tabulations for

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Appendix F

amended the Rule by, among other things, removing

the provision describing the permissible exemptions

and referring back to the statute which lists medical

exemptions as the sole category of exemption. See 10-144264 Me. Code R. § 3 (effective Apr. 14, 2021); 22 M.R.S.A.

§ 802(4-B)(B).10 In August 2021, DHHS promulgated

the current version of the Rule by adding the COVID-19

vaccination to the list of required vaccinations and

also adding dental practices and emergency services

organizations as enumerated designated healthcare

facilities subject to the Rule’s requirements. 10-144 C.M.R.

Me. Code R. § 1 (effective Aug. 12, 2021). The Plaintiffs do

not challenge the lawfulness of the rulemaking process by

which the current version of the Rule was adopted.

The preceding history demonstrates that although

Plaintiffs’ arguments are directed at the amendment of

the Rule in August 2021 and the Rule’s failure to include

a religious exemption from the COVID-19 vaccination

requirement, it was the Legislature’s revision of the

statute in 2019 which eliminated the religious exemption

for all mandatory vaccines. Therefore, when I refer in this

decision to the COVID-19 vaccine mandate, I am referring

to the Rule as it operates in conjunction with the statute,

22 M.R.S.A. § 802(4-B), which authorizes it.

Elections Held in 2020, https://www.maine.gov/sos/cec/elec/results/

results20.html#ref20 (last visited Oct. 10, 2021) (to calculate the

percentage, select “March 3, 2020 Special Referendum Election” to

access the spreadsheet of results. Then divide the number of “no”

votes (281,750) by the total number of votes cast (388,393).

10. There is an additional exemption provided specifically for

the Hepatis B vaccine, as mandated under Federal Law, 22 M.R.S.A.

§ 802(4-B)(C), which is distinct and not relevant to the inquiry at

hand.

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Appendix F

Having provided the necessary background, I turn

to the legal standard which would govern the award of a

preliminary injunction.

III. PRELIMINARY INJUNCTION

LEGAL STANDARD

“A preliminary injunction is an ‘extraordinary and

drastic remedy . . . that is never awarded as of right.’”

Voice of the Arab World, Inc. v. MDTV Med. News Now,

Inc., 645 F.3d 26, 32 (1st Cir. 2011) (quoting Munaf v.

Geren, 553 U.S. 674, 689-90, 128 S. Ct. 2207, 171 L. Ed.

2d 1 (2008)).

A trial court must consider four factors when assessing

a request for a preliminary injunction: (1) likelihood of

success on the merits, (2) whether, absent preliminary

relief, the plaintiff will suffer irreparable harm, (3)

whether “the balance of equities tips in [the plaintiff’s]

favor,” and (4) whether granting the injunction serves

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