Darrell Ehrlick

(Daily Montanan) A federal judge has struck down a significant part of Montana’s controversial anti-vaccine bill because it is both unconstitutional and conflicts with federal law, dealing another legal defeat to a raft of bills passed by the 2021 Legislature and ultimately struck down by state and federal courts.

The legal challenge against what was then House Bill 702, has been steadily challenged and gutted at the state and federal court level. This time, U.S. District Court Judge Donald W. Molloy said that the provisions that affect healthcare settings – from hospitals to doctor’s offices to nursing homes – are illegal because the law treats those healthcare settings differently, creating different requirements for the same classes healthcare employees.

The Montana Nurses Association, which was part of a group of plaintiffs, praised the ruling.

“The Court’s order is a win for all Montanans—young or old, healthy or sick—who no longer need to worry about government interference with the safety of their healthcare in Montana,” said Vicky Byrd, CEO of the Montana Nurses Association.

Molloy also ruled that the law conflicted with other portions of federal law creating an unacceptable scenario where a healthcare worker would have to choose whether to obey state law, which said one thing, or federal law which said something contrary. The legal principle is known as “pre-emption” which says that when that happens, state or local law must yield to federal law.

“The resolution of this case does not turn on whether vaccines are safe and effective, but rather whether (House Bill 702) is preempted by federal law or is unconstitutional. It is in both instances,” said Molloy.

The plaintiffs in the case, which included the Montana Medical Association and the Montana Nurses Association, said that they were put in an impossible situation because federal law required healthcare settings, including hospitals and doctor’s offices, to make reasonable accommodations for disabled patients as part of the Americans with Disabilities Act, but that HB702 barred those same settings from making the necessary accommodations. People with chronic medical conditions and diseases are covered by the ADA.

“Deprived by law of the ability to require vaccination or immunity status of an employee, a health care employer is not able to properly consider possible reasonable accommodations if an employee asks to limit his or her exposure to unvaccinated individuals,” the ruling said.

Moreover, the law opened some employers to possible legal liability by placing unvaccinated employees in areas with vulnerable or compromised immune systems, as in the case of cancer treatment centers.

“Unvaccinated care providers should not treat vulnerable and immunocompromised patients in places such as the cancer care center setting because of the high risk of serious injury due to infection,” the ruling said. “Even if a healthcare setting is unable to limit a patient’s exposure to non-immune staff, the setting still needs to know immunity or vaccination status of employees to offer protection and reduce the risk of exposure through other possible methods such as using specialized personal protecting equipment or requiring physical distancing.”

“House Bill 702 and this case were never about just COVID.  Hospitals and doctors’ offices should be able to make their own decisions about whether to require something like the MMR or hepatitis vaccine,” said Raph Graybill of Graybill Law Firm, who was the lead counsel for MNA.  “The court’s decision ensures that Montanans can obtain safe, quality healthcare without arbitrary government interference.”

Molloy’s ruling only applies to certain sectors of employers in Montana, though. In it, Molloy said the ruling applies only to healthcare settings from doctor’s offices through nursing care facilities because of the unique set of circumstances of treating immunocompromised and vulnerable patients. It did not extend to other more general settings.

“Workplace risks of exposure to vaccine preventable diseases experienced by employees in health care settings are distinct from those experienced by agricultural workers or the public,” Molloy ruled. “While the risk of exposure is not necessarily unique to health care settings, it is different from the public exposure because the risk is an inherent and immutable aspect of a health care worker’s job.”

The order permanently strikes down portions of Montana’s controversial law for healthcare which says employers cannot discriminate or differentiate between employees who are vaccinated and those or not. Framing it as a matter of shielding employees against discrimination for their religious or medical beliefs, the state said it had a duty and the police power to pass the law as an anti-discrimination measure.

House Bill 702 was passed in the midst of the COVID-19 pandemic, and aimed at the coronavirus’ vaccine, but went farther and said that employers, including some healthcare settings, could not require any vaccine including polio, measles and other long standing vaccine requirements.

In Molloy’s ruling, he said that federal law was clear that states and other government could pass laws like HB702, but there must be a logical and narrowly tailored rule to achieve that purpose. And Molloy said that HB702 failed to meet that purpose.

“Essentially the statute places an individual’s vaccination choice on an elevated dais of importance compared to the public health and safety concerns normally linked to the exercise of the state’s police power,” Molloy said. “The purpose here is not to protect the public health. This distinction is paramount.

“Because there is no rational relationship between the state privacy objective and the disparate treatment of the providers governed by (HB702), this statutory scheme is unconstitutional.”

In his 41-page ruling, Molloy also pointed out the irony of Montana passing such an extreme anti-vaccine law when the father of one of the most successful vaccines which has saved millions of lives was developed by a Montana man and a graduate of Montana public education institutions.

“In this case, as with many cases in litigation, there are ironies,” Molloy said. ‘The striking irony for the court here stems from an acknowledgement of the role of Dr. Maurice Hilleman in the history of the development as well as the efficacy of vaccines. Dr. Hilleman is known as the ‘Father of Modern Vaccines.’ The irony is that Dr. Hilleman was born in Miles City, Montana, graduated from Montana State College in 1957 and was the most prolific vaccine scientist of the 20th century. He is estimated to have saved more lives through vaccines he invented than any other medical scientist.”