Montana Vaccination Mandate Ban Judged

MISSOULA — A controversial Montana law barring most businesses and other employers from mandating vaccinations went to trial Monday, with multiple medical experts testifying that it interferes with health care providers’ ability to keep patients safe.

The lawsuit, overseen by U.S. District Court Judge Donald W. Molloy in Missoula, is the culmination of a year-long case by medical providers and patients seeking to stop the state from enforcing the law against doctors and hospitals in Montana. The law also allows hospitals to ask staff about their vaccination status, but it protects employees who refuse to provide this information.

Molloy earlier this year blocked part of the law, allowing all health care facilities that receive reimbursements from Medicare or Medicaid to require vaccinations, in accordance with federal funding requirements from the Centers for Medicaid and Medicare. As drafted, the law provided this exemption only for long-term care facilities.

People also read…

Montana Attorney General Austin Knudsen and Commissioner of Labor and Industry Laurie Esau are defending the law. Deputy Solicitor General Brent Mead, of Knudsen’s office, argued in his opening statement that the Vaccine Act is designed to ensure the privacy of individuals is protected.

“It’s not public health, it’s not vaccines — it’s whether the state can choose to protect its citizens from discrimination,” he said.

This characterization echoed the arguments Republican lawmakers used to frame the vaccine bill last year, amid concerns about the emergence of “vaccine passports” and other potential regulations that could exclude those who remained skeptical of the coronavirus vaccine.

It passed a GOP-majority legislature despite near-unanimous Democratic opposition and was signed into law by Republican Gov. Greg Gianforte.

The Montana Medical Association, private medical practices, an immunocompromised patient group and the Montana Nurses Association are the plaintiffs. They allege the law is inconsistent with federal requirements that ensure protection for Americans with disabilities and the hazards workers face on the job site.

The law denies medical providers “the most important tool to reduce the risk of vaccine-preventable disease,” said Raph Graybill, plaintiffs’ attorney.

Testimony on the first day of the trial focused heavily on the plaintiffs’ argument that unvaccinated medical workers are more likely to spread infectious diseases.

Dr. David King, a family physician practicing in Bozeman and Belgrade, testified that staff vaccination is a widely understood best practice in the medical industry. This includes everything from measles, mumps and rubella to hepatitis, polio and whooping cough. Despite the focus on COVID when House Bill 702 was passed, it broadly applies to all types of vaccines.

In cross-examination, he acknowledged that immunity to COVID-19 vaccines has been relatively short-lived, given how quickly the coronavirus mutates. But he also noted that the vaccines are safe and effective, and said the rise in vaccine hesitancy has been fueled in part by government actions such as Montana’s Vaccine Discrimination Act.

“Medicine is united in support of vaccination, and when the state decides, it will contradict the doctors…this disrespect is contagious,” he said.

Lawyers also interviewed Mark Carpenter, a Missoula resident who needed a transplant after his kidneys failed and has since had to take drugs that suppress his immune system so his body won’t reject the new organ. .

Carpenter testified that before the COVID vaccine became available, he limited his exposure to other people, including doctors’ offices. As someone with only one functioning kidney who is also immunocompromised, he said contracting COVID could be fatal for him.

“My life’s experience has been that when I go to a health care provider for preventive care or because I have a medical condition that requires that care, I go there assuming it will be a place sure,” he said.

The Vaccine Act includes a specific exemption for nursing homes and other long-term care facilities to require vaccines, but does not apply that language to other medical providers. The plaintiffs say this violates their rights to equal protection under the state and federal constitutions.

Mead, in his opening statement, noted that the state is only required to prove that it has a “rational basis” for differentiating how these two groups are treated.

“Health care is a regulated industry,” he said, adding that “the state has always made a distinction” between different types of establishments.

In a separate concession to healthcare facilities, lawmakers included an exemption allowing them to make “reasonable accommodations” for employees who refuse to be vaccinated or disclose their vaccination status.

Greg Holzman, Montana’s 2015-2021 state medical officer, said the provision misunderstands how staff vaccinations fit into the strategy to prevent a communicable disease outbreak. If that accommodation was that employees could just wear masks instead, he proposed, that doesn’t necessarily make up for the lack of other protections for patients.

“It increases the possibilities for human error and other aspects, which could reduce their effectiveness,” Holzman said. “…They tend to put PPE (personal protective equipment) downstairs. It’s still important, but it’s not as strong as getting rid of the disease completely.

With about half a dozen witnesses remaining to testify, Molloy said the trial could end as early as Tuesday.

Elna M. Lemons