Key Points

  • The Ninth Circuit affirmed qualified immunity for hospital officials who denied a nurse's religious exemption from Oregon's COVID-19 vaccine mandate, finding no clearly established law in 2021 protected her claimed Free Exercise right.
  • The court also affirmed summary judgment on the nurse's Title VII claim, holding OHSU demonstrated undue hardship through evidence of health risks to vulnerable patients and operational burdens from nursing shortages.
  • Judge Tung dissented, arguing the policy's characterization of fetal cell objections as personal moral choices rather than religious beliefs was obvious religious discrimination that should not receive qualified immunity.
  • The decision aligns with rulings from other circuits upholding hospitals' undue hardship defenses in COVID-19 vaccine exemption cases.

A divided Ninth Circuit panel affirmed qualified immunity for hospital officials who denied a nurse's religious exemption from Oregon's COVID-19 vaccine mandate, holding Friday that no clearly established law in 2021 protected her claimed right to refuse vaccination based on objections to fetal cell lines and bodily integrity.

The court also affirmed summary judgment for Oregon Health and Science University on the nurse's Title VII failure-to-accommodate claim, finding the hospital demonstrated that allowing an unvaccinated nurse to work with vulnerable newborns and immunocompromised patients would have imposed substantial health, safety, and operational costs.

Judge Kiyo Matsumoto, a district judge from the Eastern District of New York sitting by designation, wrote the majority opinion joined by Judge Michael Daly Hawkins. Judge Eric Tung dissented, arguing the constitutional violation was obvious and the panel's decision would allow officials to dismiss sincere religious beliefs as mere personal moral choices.

Brittany MacDonald had worked as a registered nurse in the Mother Baby Unit at OHSU's Doernbecher Children's Hospital since 2012, caring for pregnant mothers, newborns, and cancer patients. In September 2021, she sought a religious exemption from Oregon Governor Kate Brown's healthcare worker vaccine mandate, asserting that her Christian beliefs about the sanctity of life conflicted with any requirement to use products derived from fetal cell lines.

OHSU sent an email to exemption applicants stating that objections based on fetal cell concerns did not qualify for religious exemptions. The email stated that such beliefs "are personal moral choices and/or conscientious objection rather than a tenet of a religious faith." MacDonald's request was denied, and she was terminated in December 2021 after refusing vaccination.

The majority held that qualified immunity shielded the individual defendants because there was "no case, much less a body of case law, that clearly established a healthcare worker's Free Exercise right to an exemption from a state-law mandated vaccine based on religious objections at the height of a global pandemic." The court found MacDonald failed to cite precedent establishing her asserted right under the specific circumstances she faced.

The majority wrote that MacDonald's challenge was distinct from typical Free Exercise claims. "Unlike many Free Exercise claims, MacDonald's challenge is not to the passing or enforcement of a law or regulation that burdens her free exercise of religion, but to the Individual Defendants' failure to grant her an exemption to a legal requirement for state healthcare employees to be vaccinated for COVID-19 amid a global pandemic," Judge Matsumoto wrote.

The court rejected MacDonald's reliance on Church of Lukumi Babalu Aye v. City of Hialeah and Masterpiece Cakeshop as establishing her right, finding those cases involved substantially different facts. The panel also noted that religious objectors received favorable treatment compared to those with secular objections, who had no access to any exemption process.

On the Title VII claim, the court found OHSU presented extensive undisputed evidence of undue hardship. Declarations from OHSU's chief medical officer, its occupational health director, and the nursing director for MacDonald's unit established that unvaccinated workers posed heightened transmission risks, particularly to the unit's immunocompromised patients. An infectious disease expert opined that "no single measure was 100% effective on its own in protecting individuals from COVID-19."

The court found OHSU also demonstrated operational burdens: an existing nursing shortage would be worsened if unvaccinated staff contracted COVID-19 and missed work, and replacing MacDonald's specialized position would impose substantial costs. The panel noted this holding aligned with decisions from the First, Second, Third, Fourth, and Sixth Circuits upholding undue hardship findings for hospitals that denied vaccine exemptions.

Judge Tung's dissent argued the discrimination "was so obvious that qualified immunity should have been denied." He wrote that the policy "singled out an employee's religious objection to abortion and the use of fetal tissue as categorically undeserving of any consideration," calling this "a classic case of the State targeting religious beliefs."

Tung wrote that the rejection of MacDonald's faith was offensive. "To tell a person that her deeply held religious conviction is, really, not religious at all—because it has nothing to do with God or the supernatural—is not only deceptive (a form of gaslighting), it is demeaning," he wrote.

The dissent warned the majority's reasoning could permit officials to dismiss other religious practices as mere personal choices. Under that logic, Tung wrote, "the Muslim woman who wears a hijab is exercising a mere sartorial choice, not a religious one, so she must remove it; a Sikh man who keeps a beard has made a grooming decision, not a religious one, so he must cut it."

Judge Tung argued that qualified immunity should not extend even in novel factual circumstances, citing the Supreme Court’s statement in Hope v. Pelzer that "officials can still be on notice that their conduct violates established law even in novel factual circumstances." He also invoked Justice Gorsuch’s concurrence in Roman Catholic Diocese of Brooklyn v. Cuomo, joined by Justice Kavanaugh, which said government is not free to disregard the First Amendment in times of crisis.

MacDonald was represented by Ray D. Hacke of Pacific Justice Institute. The defendants were represented by Whitney A. Brown of Stoel Rives LLP.

The case is MacDonald v. Oregon Health and Science University, No. 24-4852, in the U.S. Court of Appeals for the Ninth Circuit.