Last night, the Supreme Court sent another challenge to a state vaccine mandate to the dust bin… at least temporarily. Maine instituted a mandate for all healthcare workers in hospitals, nursing homes and doctor’s offices to be vaccinated with no option for an alternative of weekly testing and no religious exemptions offered. The mandate had been upheld twice in a federal court and the U.S. Court of Appeals for the 1st Circuit. The Supreme Court appeared to be divided into three different camps, but the final decision was not to hear the appeal, allowing the lower court rulings to stand. But as we’ll get to in a moment, that may not be the last word on this challenge. (NBC News)

The Supreme Court declined Friday to block Maine’s requirement for health care workers to receive a Covid-19 vaccine, even though it doesn’t contain a religious exemption.

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented, saying they would have blocked the mandate. Two of the court’s other conservatives, Amy Coney Barrett and Brett Kavanaugh, said they agreed the court should not take the case, because it came on an emergency appeal without benefit of a full briefing.

The state requirement was challenged by health care workers who opposed the Covid-19 vaccination mandate on religious grounds. State officials began enforcing the new rule on Friday.

This wound up being a 6-3 ruling, with Roberts, Kavanaugh, and Coney Barrett siding with the liberal justices in declining to hear the case. None of them offered specific opinions on the mandate itself. The other three conservative justices indicated that they would have allowed the appeal on the basis of religious freedom.

Here’s where it gets a bit more complicated. Kavanaugh and Coney Barrett didn’t indicate that the court should never hear the case. They simply weren’t comfortable hearing it as an emergency appeal without the court having the chance to hear a full briefing and arguments. This is what James Joyner of Outside the Beltway (among many others) refers to as the Supreme Court’s “shadow docket.”

Joyner goes on to agree that this case could rise from the dead and conceivably go the other way further down the line.

It’s important to emphasize that this is just a preliminary ruling. The Court has refused to grant extraordinary relief by what amounts to a temporary injunction before hearing the case in full. It’s conceivable that they might rule the other way once the case winds its way to them.

I agree with Barrett and Kavanaugh that this simply isn’t what the “shadow docket” is for.

You can read James’ full analysis at the link, generally arguing that medical exemptions to mandates are easier to defend than religious exemptions. But at the same time, if your state’s medical exemptions allow for an alternate choice of weekly testing and additional PPE, what’s the justification for not allowing a religious exemption with the same options?

The plaintiffs in the Maine case had argued that their religious objections were based on the use of “fetal cell lines that originated in elective abortions” in the vaccines. The pharmaceutical companies argue that none of the vaccines contain fetal cells, though Moderna and Pfizer used cell lines replicated from fetal cells taken 50 years ago during the testing phase. Let’s just all agree that it’s complicated.

This is the third time the Supreme Court has been asked to hear a challenge to vaccine mandates and the third time they have declined to do so. To be clear, they’ve never ruled in favor of or against such mandates. They’ve simply declined to accept the cases and potentially overrule or support the lower courts. This case out of Maine could possibly be different, however. It certainly sounds as if Kavanaugh and Coney Barrett are leaving the door open to a full hearing and they may just accept the religious freedom argument and flip this to a 5-4 victory for the plaintiffs if/when it lands back in their laps again.