This is a true story about heroes and villains in the age of coronavirus and how no one can agree on who is which.
The doctor, one of the protagonists of this story, is a pediatric intensive care specialist in Colorado Springs working with some of the sickest children in the state. She’s unvaccinated against COVID-19, despite both state and employer mandates requiring vaccination.
In one telling of this tale, the doctor is the hero, a devoutly religious person who has made a moral choice consistent with those beliefs and is being unconstitutionally punished for them. In another telling, the doctor is the villain, using her religion as cover for a personal belief that is recklessly endangering her patients and colleagues.
Both versions of the story are contained within the pleadings of an ongoing lawsuit in federal court in Denver that challenges the University of Colorado Anschutz Medical Campus’s vaccination requirement for physicians and medical students. Which version is the right one will be the subject of a complicated — and closely watched — legal analysis where the outcome is unclear and the arguments have veered into philosophical debates over the very nature of the country.
“In a religiously pluralistic society, we have to respect people’s religious objections,” said Peter Breen, an attorney representing the doctor and her co-plaintiff, a medical student at the University of Colorado School of Medicine.
CU responded in court by quoting from an 1878 U.S. Supreme Court decision: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Ultimately, the Supreme Court could decide again. But beyond the courtroom battle, the case shows the difficulty Colorado hospitals and other health care organizations have faced in sorting out what is a valid religious exemption to the COVID vaccine mandate, what is not and whether they should be making that decision at all.
“The standard for a sincerely held religious belief is so general, it’s open to different kinds of arguments,” said Christopher Jackson, a Denver-based attorney who specializes in constitutional and appellate law.
Doe v. CU
The two plaintiffs in the federal lawsuit against CU are anonymous — they go by Dr. Jane Doe and John Doe in the court documents.
Both say that requiring them to take a coronavirus vaccine conflicts with their religious beliefs. The doctor, who is Catholic, and the medical student, who is Buddhist, say they are opposed to the use of cell lines that were derived from cells taken decades ago from aborted fetuses. The plaintiffs say the cell lines, which are frequently used in medical research, were used in either the production or testing of the three coronavirus vaccines currently approved in the United States.
The student also says he has a religious objection to vaccination in general.
Officials on the University of Colorado’s Anschutz Medical Campus denied their requests for a religious exemption. In court filings, the university questions whether the plaintiffs’ religious objections are sincere, noting that the student has received at least once vaccine previously and that the doctor regularly prescribes medicines that were tested using the same cell lines.
“Plaintiffs’ failure to raise prior objections to vaccinations and medications demonstrates that their professed religious objection to these vaccines is not a ‘sincerely held belief,’ but rather a personal, or perhaps a political, choice,” the university wrote in one case filing.
CU also notes that major leaders of the plaintiffs’ religions — including, in the case of Catholicism, the pope — have spoken in favor of vaccination against COVID.
“Dr. Doe … did not articulate an individualized Catholic belief different from the views of the Vatican doctrinal office or the U.S. Conference of Catholic Bishops, which have come out strongly in favor of vaccination against COVID-19,” CU wrote in the filing.
But, to Breen, this is offensive. He said the university’s initial policy on vaccine religious exemptions was “flagrantly religiously bigoted” and that the CU Anscutz campus may be the worst in the country for accomodating religious objection to vaccination.
“I’ve never seen a case where a government has been so vicious in attacking what are clearly sincere religious beliefs,” said Breen, who is the senior counsel for the Thomas More Society, an organization that often takes on religious liberty cases.
But, even more than its legal tactics, Breen said CU has violated an important provision of the constitutional separation of church and state.
The doctor, Breen said, has a master’s degree in Catholic bioethics. And Catholic viewpoints on the COVID vaccines are varied. Breen noted that some Catholic leaders — including those in Colorado — have come out against mandates for the coronavirus vaccine, saying that Catholic teaching stresses the importance of honoring individual conscience.
The Colorado Catholic Conference has published on its website a template for requesting a vaccine religious exemption.
“The people of Colorado should be outraged that their government is getting into the nuances of Catholic theology and trying to tell individual Catholics what they do and don’t believe,” Breen said.
To CU, though, these debates are missing an equally important point: the stakes involved. More than 8,000 people have now died due to COVID-19 in Colorado. The purpose of the vaccine mandate isn’t to trample religious belief but to protect patients, it says.
The university said in a court filing that the plaintiffs’ arguments contain “barely a mention of the magnitude of the COVID crisis and the risk their refusal to be vaccinated presents to the most vulnerable.”
In a statement, the university said: “Each year, School of Medicine faculty members provide care for more than 2 million patients and our mandatory vaccination requirement offers the best way to protect the patients in their care. We have adopted this policy in recognition of our responsibility to provide public health leadership in our state and beyond.”
The first major decision in the lawsuit came down Monday, when U.S. District Court Judge Raymond P. Moore denied the plaintiffs’ request for a preliminary injunction against CU. But he did so for a technical reason — the policy on religious exemptions that the plaintiffs were trying to stop CU from enforcing has since been rescinded and replaced with a new policy.
Breen said his side may soon be adding more plaintiffs and amending the lawsuit to include more challenges to the new policy.
“No one factor or consideration is determinative”
Jackson, the constitutional law attorney, said courts have generally tried to stay out of fights over religious exemptions. As long as an employer’s policy is one of “general applicability” — that is, as long as it applies to everyone equally and doesn’t single out one religion — then it usually passes muster.
“Under the current law as it stands, these kinds of cases are relatively easy,” Jackson said.
But the makeup of the current U.S. Supreme Court — conservative-leaning with multiple justices who often rule in favor of religious liberty claims — throws that into question.
Guidance for handling religious vaccine exemptions continues to confound, as well.
On Monday, the U.S. Equal Employment Opportunity Commission released new “technical assistance” for employers instituting COVID vaccine mandates.
The guidance says employers “should assume that a request for religious accommodation is based on sincerely held religious beliefs” but also says that employers may “be justified in making a limited factual inquiry and seeking additional supporting information” about the sincerity of an employee’s beliefs. Employers should accommodate non-traditional religious beliefs but not beliefs that are personal or political.
Employers can deny exemption to employees who have previously acted inconsistently with their beliefs but employees “need not be scrupulous in their observance” in order to receive religious protection.
“No one factor or consideration is determinative,” the EEOC wrote, “and employers should evaluate religious objections on an individual basis.”
A broad impact across the health care system
Ultimately, how officials decide which religious exemptions are valid and which are not could have a huge impact on Colorado’s health care system.
In addition to a number of mandates by employers, such as the CU School of Medicine’s, Colorado’s Board of Health has also issued a COVID vaccine mandate for health care workers. Hospitals, nursing homes and other facilities are required to have 100% compliance.
But, faced with imminent staff shortages if unvaccinated workers had to leave their jobs, health care facilities across the state have allowed employees to claim religious exemptions to the COVID vaccine mandate.
There’s a catch, though. The state’s current mandate considers employees who are claiming such an exemption to not be in compliance with the order, meaning their facilities can’t reach the required 100% vaccination rate.
This means those facilities must ask the Colorado Department of Public Health and Environment with a waiver from the mandate. State regulators have received more than 900 waiver applications, each of which they are currently reviewing.
In a letter sent earlier this month, CDPHE Executive Director Jill Hunsaker Ryan wrote that her agency would consider a facility’s number of employees claiming an exemption when deciding whether to approve a waiver. Rural hospitals, especially, have raised concerns about what would happen if CDPHE takes a hard line on religious exemptions. CDPHE, meanwhile, has not announced publicly how deeply it will dig to determine if a religious exemption is valid.
CDPHE has said it plans to amend its mandate in the coming months to better align with a federal mandate for health care workers, the rules of which have not yet been finalized.
That leaves much unknown about the future of Colorado’s vaccine mandates for health care workers — and about how, in a polarized time when religious belief and personal belief and political belief overlap and merge, the state will determine who is the hero and who is the villain.
“It’s difficult to do,” said Jackson. “It’s very difficult to look into someone’s mind.”
CORRECTION: This story was updated at 10:32 a.m. on Friday, Oct. 29, 2021, to correct the name of the organization with which Breen works. It is the Thomas More Society.