More than a dozen medical professionals and other witnesses took the stand in federal court this week to urge a judge to overturn portions of House Bill 702, the Montana law that broadly prohibits workplace vaccine mandates and discrimination based on vaccine status.
The bench trial, held in Missoula before U.S. District Judge Donald W. Molloy, is intended to decide whether the high-profile law can be enforced in hospitals, physician offices and other health care settings. The legal challenge has been working its way through the court system for over a year.
Plaintiffs include the Montana Medical Association, the Montana Nurses Association, Providence St. Patrick Hospital, doctors’ offices and immunocompromised patients. In court filings and testimony, they have argued HB 702 conflicts with federal requirements and health care providers’ duty to generally provide safe environments for patients and staff.
Additionally, plaintiffs say the law violates the equal protection clause of the U.S. and Montana constitutions by arbitrarily providing long-term care, assisted living and nursing homes more leniency than other health care settings treating similar patients. The elderly and immunocompromised patients who reside in the exempted facilities, plaintiffs argue, also routinely seek treatment in hospitals, outpatient clinics and private physicians’ offices.
In his opening statement on Monday, attorney Raph Graybill summarized HB 702 as a law that “sabotages public health” and constitutes a “clear and present danger” by interfering with plaintiffs’ ability to use best-practice disease prevention techniques in health care settings.
Although they filed expert testimony and depositions in the case, the attorneys representing the state and the Department of Labor and Industry did not put any witnesses on the stand during court proceedings this week. In oral arguments and briefings, state attorneys have rejected the idea that the law is causing serious hardship for health care providers or patients. Rather, Assistant Solicitor General Brent Mead cast the case as a dispute over the state’s ability to regulate society and protect residents from discrimination “based on their medical choices.”
“The purpose of HB 702 is to prevent discrimination,” Mead said. “It’s not a public health law.”
Sponsored by Republicans during the 2021 Legislature and signed by Gov. Greg Gianforte as part of a wave of backlash against COVID-19-driven public health measures, HB 702 prohibits discrimination based on vaccination status for people seeking public accommodations and employment. The law also prohibits workplaces from recording their employees’ vaccination status, although employers are allowed to ask staff to supply that information voluntarily. The law applies to vaccines and immunizations generally, appearing to conflict with workplace vaccination requirements for other contagious diseases that predate the pandemic.
HB 702 provides some exceptions, mainly by allowing vaccine requirements to continue in K-12 public schools and daycares. As a result of an amendment proposed by Gianforte, nursing homes, assisted-living facilities and long-term care facilities are also exempted to avoid conflicts with federal health authorities and protect the high-risk elderly residents.
As it relates to COVID-19 vaccinations, the law has been blocked since March for all health care facilities that are required to comply with pandemic-era vaccination requirements set by the federal Centers for Medicaid and Medicare, a list that includes hospitals and other health providers. In that decision, Molloy ruled that forcing health care facilities to comply with the state law could cause them irreparable harm by jeopardizing their funding from the federal Medicaid and Medicare programs.
On Friday, U.S. District Court Judge Donald Molloy blocked Montana from enforcing its vaccination non-discrimination law for health care facilities. The injunction, part of a legal challenge against House Bill 702, will remain in effect for the duration of a federal vaccine mandate for health care workers.
While acknowledging the importance of COVID-19 vaccines in combating the virus, attorneys for plaintiffs have focused in court on how HB 702 preempts existing vaccine requirements in health care settings for other communicable diseases, such as measles, mumps, rubella, varicella, tuberculosis, diphtheria, pertussis and hepatitis B. On Tuesday, Providence St. Patrick chief operating officer Kirk Bodlovic testified that the Missoula hospital and St. Joseph Medical Center in Polson have long required those vaccinations as a condition of employment for their staff and maintain that policy in order to protect their clients and comply with federal guidelines.
Dr. Bonnie Stephens, a pediatric and neonatal physician and the Chief Medical Officer at Community Medical Center in Missoula, filed expert testimony stating that it is a “standard of care” for providers in a neonatal intensive care unit to be current on a range of vaccines to avoid outbreaks, such as whooping cough, among patients and staff.
“They themselves are at a higher risk of getting a communicable disease or infectious disease,” Stephens said. “And if they then were to get it, they would place their patient at higher risk.”
In court, plaintiffs also said HB 702 prevents health care employers from recording the specific vaccinations of their employees, a tool witnesses said helps medical facilities respond to disease outbreaks and keep vulnerable patients safe from additional exposure. Because of the new law, plaintiffs said facilities like St. Patrick and Western Montana Clinic, a private physician office, can’t know for sure which of their employees are up to date on vaccines for flu and other contagions. That, for example, means they can’t reliably accommodate a patient who requests to be treated only by vaccinated staff.
Medical practitioners and researchers, including former Montana State Medical Officer Greg Holzman and Dr. David N. Taylor, the director of clinical research at Bozeman Health, said vaccination is critical in allowing providers to protect against infectious diseases and reduce the spread of viruses. Holzman said vaccines rank higher than personal protective equipment such as masks in the “hierarchy of control,” a concept for responding to contagious disease outbreaks.
For example, Holzman said, a neonatal intensive care unit might require a pertussis vaccine for anyone who enters the facility, or an oncology department treating cancer patients could require vaccines as a precaution for anyone who is working with immunosuppressed patients.
“I would want the hospital or the clinic or the dialysis center to be able to make those decisions knowing their own risk benefits in that community, knowing the type of patients they’re taking care of,” Holzman said.
At times during the trial, state attorneys sought to poke holes in witness testimony and raise doubts about how well COVID-19 vaccinations specifically work to reduce infection. During one line of questioning, state attorney Michael Russell scrutinized a study cited in Taylor’s written testimony, suggesting that research could not definitively calculate that millions of COVID-19 infections had been averted because of vaccines.
“You can’t prove a negative, can you?” Russell posed.
“What we can prove,” Taylor replied, is that the approved vaccine regimes against COVID-19 had shown “over 90% protective efficacy” and been proven to decrease the spread and serious illness from the coronavirus, particularly in earlier strains.
“That’s data. That’s solid. That’s not conjecture,” Taylor said.
In court filings and closing statements, state attorneys also tried to undercut plaintiffs’ arguments that HB 702 interfered with providers’ ability to accomodate disabled patients and staff under the Americans with Disabilities Act. Defense attorneys argued that plaintiffs had not adequately proved that HB 702 runs afoul of the ADA by offering specific evidence.
“You don’t have that documented accommodation request in front of you,” Mead said in closing arguments to Molloy Wednesday morning. “The plaintiffs did not present you with the information necessary to prove preemption.”
In testimony this week, plaintiff attorneys presented three immune-suppressed patients who have taken special precautions to protect their health during the pandemic. All three said they had tried to inquire about the vaccination status of their health care providers but were not provided with that information.
Mark Carpenter, a Missoula County resident, took the stand Monday to explain his experience of seeking medical care for chronic kidney disease during the pandemic. After six total doses of COVID-19 vaccines and more than one treatment of monoclonal antibodies, Carpenter said he has built up minimal antibodies. Until the passage of HB 702, Carpenter said, it “never occurred” to him to question the staff’s vaccination against dangerous diseases.
In cross-examination, state attorney Russell asked Carpenter if he had ever been denied a request to be treated by vaccinated staff because of his illness. Carpenter, briefly overcome with emotion, said the “horrific experiences” he’s had since receiving his diagnosis haven’t always allowed for that kind of advanced planning. He recounted one instance when his wife rushed him to the hospital because he was having trouble breathing.
“There’s no time in those circumstances to file a written document,” Carpenter said through tears. “You expect to get care in a health care setting.”
Two more witnesses, Wallace and Diana Jo Page who testified via Zoom from Kalispell, spoke about their health vulnerability because of cancer treatments that suppressed their immune systems. During the pandemic, Diana Jo Page said the couple, both in their 80s, remained distanced from friends and family until vaccines became available. Even then, Diana said, she avoided being taken to the hospital emergency room when she suffered an asthma attack shortly after the Fourth of July because she was nervous about increased exposure to viruses.
While she was acutely worried about encountering other sick patients, Diana said she was also concerned about the vaccination status of her providers.
“They take an oath to do no harm,” Page testified on Tuesday. “I just can’t imagine that a medical facility that is treating people who are vulnerable would not take every precaution that they can to keep their patients safe.”
Monday is the deadline when medical facilities that receive federal funding must be in compliance with COVID-19 vaccine requirements from the Centers for Medicaid and Medicare. The rule punches a major hole in Montana’s sweeping ban on vaccine mandates.
Citing those concerns, plaintiffs have asked Molloy to permanently block the law in most health care settings — places where, plaintiff attorney Justin Cole said Wednesday, “knowledge of immunity status matters the most.” Cole noted that doesn’t mean overturning the law in its entirety.
In his final remarks, Mead attempted to dispel specific arguments listed in the plaintiffs’ case, including that the state was wrong to pass distinct regulations for different types of licensed health care settings. Above all, Mead told Molloy that advancing anti-discrimination laws is an inherent part of the state’s ability to regulate how society functions. The state’s prerogative as expressed through HB 702, he said, should not be overruled because of plaintiffs’ nods to federal regulations.
Mead acknowledged that HB 702’s focus on vaccines and vaccine requirements is a “hotly contested issue.” But the plaintiff’s disagreement over the contents of the bill, he said, doesn’t mean they have a sufficient legal case.
“The Montana Legislature made a choice to protect Montanans from discrimination based on vaccination status,” Mead said. Plaintiffs, he continued, “do have a form and remedy for their preferred choice. It’s just not here and it’s just not this case. It’s two months from now in Helena when the Legislature reconvenes.”
Noting the volume of filings and evidence presented in testimony, Molloy said would provide a ruling on the merits of the case at a later date.
“It’s likely to be not a great deal of time, but it’s not going to happen tomorrow,” he said.
Until then, Molloy said the preliminary injunction allowing health care facilities to require COVID-19 vaccines for their staff remains in place.
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