HELENA — A federal appeals court panel has reversed a lower court’s decision, upholding Montana’s “vaccine discrimination” law, as it applies to health care facilities.
Three judges on the 9th Circuit Court of Appeals handed down their decision last week.
In 2021, during the COVID-19 pandemic, the Montana Legislature approved House Bill 702, which prohibits denying someone access to goods, services or opportunities based on whether or not they’ve been vaccinated. It also prevents employers from requiring their employees be vaccinated.
The law has several exceptions, added through amendments proposed by Gov. Greg Gianforte. One of them says that specified health care facilities can implement “reasonable accommodations” to protect the health and safety of patients, employees and visitors, and that those facilities can ask workers whether they’ve been vaccinated and treat them as unvaccinated if they decline to answer.
A group of plaintiffs led by the Montana Medical Association sued, saying HB 702 jeopardized their ability to protect patients and employees, especially those with disabilities who have weakened immune systems. They argued, despite the law’s exceptions, HB 702 conflicted with federal law on accommodating people with disabilities and on eliminating hazards in the workplace.
In 2022, U.S. District Court Judge Donald Molloy sided with plaintiffs, saying the law “removed an essential tool from the health care provider’s toolbox” to stop the spread of diseases. He ruled it unconstitutional as applied to health care settings.
However, in an opinion signed by two of the three judges, Circuit Judge Daniel Bress wrote that Molloy’s ruling was “overbroad” and that his findings showed only “a hypothetical or potential conflict” between HB 702 and federal law.
“In the absence of a record more particularized to specific plaintiffs and specific medical facilities, it cannot be said that a health care employer’s inability to discriminate based on employees’ lack of vaccination would lead to ADA violations in any or all cases, so as to warrant facially invalidating HB 702 in health care settings,” he wrote.
Bress wrote that this decision doesn’t prevent future challenges to HB 702’s enforcement “based upon a proper showing.”
In a concurring opinion, Senior Circuit Judge M. Margaret McKeown disagreed with the standard the other judges had used in deciding the case, but agreed the plaintiffs had not shown enough to justify preempting the law at this time.
“To be sure, HB 702 is likely preempted in some circumstances, but it is Montana Medical’s burden to justify the scope of the remedy sought,” she wrote.
Montana Attorney General Austin Knudsen’s office defended HB 702 in court and praised the panel’s decision in a statement.
“This is great news for Montanans,” a spokesperson said. “No one should be subject to discrimination because of their vaccination status. We’re glad the Ninth Circuit corrected Molloy’s erroneous decision.”
Dr. Ernest "Joe" Gray, president of the Montana Medical Association, also released a statement.
"Physicians and healthcare providers want patients to know that our policies are set to protect them when they seek treatment; this decision makes that more difficult," he said. "We are currently reviewing the decision of the 9th Circuit and weighing our future legal options."
EDITOR'S NOTE: This story has been updated to include a statement from the Montana Medical Association.
