Does v. Mills

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,

v.

JANET T. MILLS, in her official capacity as Governor of the
State of Maine; JEANNE M. LAMBREW, in her official capacity as
Commissioner of the Maine Department of Health and Human
Services; NIRAV D. SHAH, in his official capacity as Director of
the Maine Center for Disease Control and Prevention;
MAINEHEALTH; GENESIS HEALTHCARE OF MAINE, LLC; GENESIS
HEALTHCARE, LLC; NORTHERN LIGHT HEALTH FOUNDATION; MAINEGENERAL
HEALTH,

Defendants, Appellees.

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.

Mathew D. Staver, Horatio G. Mihet, Roger K. Gannam, Daniel
J. Schmid, and Liberty Counsel on brief for appellants.
Kimberly L. Patwardahan, Assistant Attorney General, Valerie
A. Wright, Assistant Attorney General, Thomas A. Knowlton, Deputy
Attorney General, Aaron M. Frey, Attorney General, on brief for
appellees Janet T. Mills, Jeanne M. Lambrew, and Nirav D. Shah.
James R. Erwin, Katherine I. Rand, and Pierce Atwood LLP on
brief for appellees MaineHealth, Genesis Healthcare of Maine, LLC,
Genesis Healthcare, LLC, and MaineGeneral Health.
Ryan P. Dumais, Katherine L. Porter, and Eaton Peabody on
brief for appellee Northern Light Health Foundation.

October 19, 2021

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 LYNCH, Circuit Judge. Faced with COVID-19's virulent

delta variant and vaccination rates among healthcare workers too

low to prevent community transmission, Maine's Center for Disease

Control ("Maine CDC") promulgated a regulation effective August

12, 2021, requiring all workers in licensed healthcare facilities

to be vaccinated against the virus. Under state law, a healthcare

worker may claim an exemption from the requirement only if a

medical practitioner certifies that vaccination "may be medically

inadvisable." Me. Rev. Stat. tit. 22, § 802(4-B) (West 2021).

Maine has mandated that its healthcare workers be vaccinated

against certain contagious diseases since 1989. It has not allowed

religious or philosophical exemptions to any of its vaccination

requirements since an amendment to state law in May 2019 (which

took effect in April 2020), and the COVID-19 mandate complies with

that state law.

Several Maine healthcare workers (and a healthcare

provider who runs his own practice) sued, arguing that the

vaccination requirement violates their rights including those

under the Free Exercise Clause of the U.S. Constitution. They

sued the Governor, the commissioner of the Maine Department of

Health and Human Services ("Maine HHS"), and the director of Maine

CDC alleging violations of the Free Exercise Clause, Supremacy

Clause, Equal Protection Clause, and 42 U.S.C. § 1985. They also

sued several Maine hospitals, which employ seven of the nine

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

We affirm.

I.

Maine has long required that healthcare workers be

vaccinated against infectious diseases. See 1989 Me. Laws ch.

487, § 11. Prior to 2019, state law exempted workers from

vaccination in three circumstances: when vaccination was medically

inadvisable, contrary to a sincere religious belief, or contrary

to a sincere philosophical belief. Id. In 2019, the state

responded to declining vaccination rates by amending its law to

allow for only the medical exemption.1 2019 Me. Laws ch. 154, § 9

(codified at Me. Rev. Stat. Ann. tit. 22, § 802 (2021)); see

Hearing on LD 798, An Act to Protect Maine Children and Students

from Preventable Diseases by Repealing Certain Exemptions from the

Laws Governing Immunization Requirements Before the J. Standing

Comm. on Educ. & Cultural Affs., 129th Legis., 1st Reg. Sess. (Me.

1 It made the same change to the laws requiring public-
school students and nursery-school employees to be vaccinated.
See 2019 Me. Laws ch. 154, §§ 3-4, 6, 10.

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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

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before and after the development of the COVID-19 vaccines, to do

so.2 Maine's population is particularly vulnerable to COVID-19

because it has the largest share of residents aged 65 and older in

the country. U.S. Census Bureau, 65 and Older Population Grows

Rapidly as Baby Boomers Age, Release No. CB20-99 (June 25, 2020),

https://www.census.gov/newsroom/press-releases/2020/65-older-

population-grows.html. After COVID-19 vaccines became available,

Maine encouraged all its residents to be vaccinated and took

particular steps along those lines addressed to health care

workers. Maine took the following steps:

• Starting in December 2020, Maine HHS and Maine CDC

held regular information sessions with clinicians

to educate them about the vaccines including plans

for vaccine distribution and methods for addressing

vaccine hesitancy.

• Starting that same month, Maine HHS and Maine CDC

convened a working group to study the most

effective ways of educating clinicians on the

vaccines.

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 WL 2292795, at
*1-7 (D. Me. June 4, 2021) (describing efforts), appeal filed, No.
21-1453 (1st Cir. docketed June 14, 2021).

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• Given the limited vaccine availability in December

2020 and January 2021, Maine gave priority to

frontline healthcare workers over other groups in

the population during the first stage of vaccine

distribution. Hospitals offered on-site

vaccination to their staff and other eligible

recipients.

• Because COVID-19 poses greater risks of infection

and death to older people, Maine CDC prioritized

older residents as well. It started with residents

older than seventy and then expanded first to

residents older than sixty and then to residents

older than fifty.

• In partnership with Maine HHS and Maine CDC,

hospitals provided several large public vaccination

sites across the state. Maine HHS and Maine CDC

helped staff the sites with public health,

healthcare, and emergency-response volunteers.

• Maine CDC also distributed vaccines to healthcare

facilities, EMS organizations, and pharmacies

across the state.

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• From March 2021, Maine HHS provided free

transportation to vaccination sites to residents

who could not get to the sites.

• From April to June, Maine HHS and Maine CDC offered

a mobile vaccination unit in rural and underserved

areas of the state.

• For twenty days in May, Maine HHS offered

incentives to any Mainer who got his or her first

dose of a COVID-19 vaccine. Those eligible could

choose between a complimentary fishing license, a

complimentary hunting license, a Maine Wildlife

Park Pass, a $20 L.L. Bean gift card, a ticket to

a Portland Sea Dogs game, or an Oxford Plains

Speedway Pass.

• In June, Governor Mills announced a prize

sweepstakes, allowing all vaccinated residents to

enter and tying the prize to the number of residents

vaccinated by Independence Day weekend. On July 4,

a dialysis dietitian from Winslow won nearly

$900,000. Press Release, Office of Gov. Mills,

Governor Mills Announces Winner of Don’t Miss Your

Shot: Vaccinationland Sweepstakes (July 4, 2021),

https://www.maine.gov/governor/mills/news/governo

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 r-mills-announces-winner-dont-miss-your-shot-

vaccinationland-sweepstakes-2021-07-04.3

By the end of July 2021, 65.0% of Maine residents had received at

least one dose of a COVID-19 vaccine. However, the geographic

distribution of vaccination was, and remains, uneven throughout

the state. See Maine CDC, COVID-19 Vaccination Dashboard: COVID

Vaccination by County Listing, (last visited Oct. 15, 2021)

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

Pietrangelo, 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

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 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)).
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]."

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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 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,

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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:

• 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

5 By September 3, that number would jump to nineteen out
of thirty-three outbreaks.

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 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 WL 4783626, at *3. For these stated reasons, Maine

CDC concluded that none of its available alternatives to mandatory

vaccination 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

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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' requests for religious exemptions

provided that the accommodations do not allow unvaccinated workers

to enter healthcare facilities. Maine HHS and Maine CDC later

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.

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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

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the hearing, the district court denied the motion in a forty-one-

page decision. Doe, 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 preliminary

relief, that the balance of equities tips in his favor, and that

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 (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.

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an injunction is in the public interest." Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7, 20 (2008).

A.

1.

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 (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 (2021) (citing Emp. Div. v.

Smith, 494 U.S. 872, 878-82 (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 (1993)).

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

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religious nature." Fulton, 141 S. Ct. at 1877 (citing Masterpiece

Cakeshop, Ltd. v. Colo. Civ. Rts. Comm'n, 138 S. Ct. 1719, 1730–

32 (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.

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.

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

v. Hawaii, 138 S. Ct. 2392, 2418 (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 (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). No case in this circuit and no case of the Supreme

Court holds that a single objective exemption renders a rule not

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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, non-discriminatory

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 (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).

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Maine's three interests are mutually reinforcing. It must keep

its healthcare facilities staffed in order to treat patients,

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

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Brooklyn v. Cuomo, 141 S. Ct. 63, 66–68 (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 and microelectronics and all

transportation facilities"); see also S. Bay United Pentecostal

Church v. Newsom, 141 S. Ct. 716, 717 (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

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.

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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 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

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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.

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

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tailoring.9 The available tools roughly fit into two categories.

The first category involves pharmaceutical interventions. The

second involves non-pharmaceutical interventions. 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, 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

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 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 (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.

- 24 -
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 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 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 (1905). Nor is the regulation overinclusive.

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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 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

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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.

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

- 27 -
Michigan University, No. 21-2945, 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. Id. at *1. The university's

policy provided that "[m]edical or religious exemptions and

accommodations will be considered on an individual basis." Id. 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. Id. 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 id. at *5. In contrast, the Maine

rule covers everyone who works with the medically vulnerable

population in healthcare facilities. Unlike the university's

athletes-only policy, Maine's emergency rule is not underinclusive

even under Dahl because it encompasses every employee working in

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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 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 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

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.

- 29 -
2020. That timeline does not support a claim of religious

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 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 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 (2020)

(Roberts, C.J., concurring).

2.

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

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court's conclusion that they are unlikely to succeed on any of

those claims. See Doe, 2021 WL 4783626, at *15-16.

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

(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

(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 preliminary

11 Appellee Northern Light argues that the appellants
waived their request for injunctive relief by not including it in

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injunction, the appellants must show that they have inadequate

remedies at law. See Ruckelshaus v. Monsanto Co., 467 U.S. 986,

1019 (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 (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 WL 4783626, at *16; see Fort

Bend Cnty. v. Davis, 139 S. Ct. 1843, 1850-51 (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,"

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.

- 32 -
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 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

- 33 -
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 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.

B.

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.

- 34 -
 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 (2009). Maine's interest in safeguarding

its residents is paramount. While we do not diminish the

appellants' liberty of conscience, we cannot find, absent 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 WL 4783626, at *17.

III.

The district court's order denying a preliminary

injunction is affirmed.

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