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Ninth Circuit renews San Francisco employees’ lawsuit over vaccine mandates

The city employees say that the use of aborted fetal cells in the development of the Covid-19 vaccine conflict with their religious beliefs, which the city and county of San Francisco refused to accommodate.

(CN) — A federal appeals court ruled Monday that former government employees who refused the Covid-19 vaccine because of concerns over the use of fetal stem cells during development can pursue a religious discrimination lawsuit against San Francisco.

The Ninth Circuit overruled a Northern District of California court decision to deny accommodations for city employees seeking religious exemption from a 2021 mandate that all 35,000 city and county of San Francisco employees must receive a Covid-19 vaccination.

According to a suit first filed in March 2022, Selina Keene, Melody Fountila, and Mark McClure had all been employees of the city and county of San Francisco but were forced to take leave from their positions when the city denied their requests for religious exemption from the mandate. The vaccines, according to the suit, used cells harvested from aborted fetuses during the development process and therefore contradict with their Christian beliefs against abortion.

The plaintiffs also said in the lawsuit that the vaccine mandates should have accounted for alternate forms of protection against Covid-19 and could have allowed them to safely work from home or with other safety measures, like masking and frequent testing. Attorneys for the plaintiffs did not respond to requests for comment by press time.

U.S. District Judge Jeffrey White, a George W. Bush appointee, rejected the employees' assertions in September 2022, saying that the plaintiffs’ claims were not based on religious grounds but on “personal preference” and that they disregarded scientific consensus about the efficacy of the vaccines versus supposed natural immunity from contracting the virus. He also determined based on previous court rulings that the plaintiffs did not face irreparable harm from having to choose between the vaccine and their employment status.

Keene and Fountila appealed.

The panel of judges — consisting of U.S. Circuit Judges Consuelo Callahan and Patrick Bumatay and U.S. District Judge Susan Bolton, sitting by designation from the District of Arizona — found White made factual errors in his dismissal and did not properly weigh their individual rights against public interest.

“The district court considered the public interest in increased vaccination against the Covid-19 virus, but there is no indication that the district court considered the public interest in enforcement of civil rights statutes,” they wrote.

Callahan and Bumatay, George W. Bush and Donald Trump appointees. respectively, and Bill Clinton appointee Bolton also challenged White’s determination of the scientific merits of the employee’s claims, writing, “the record reflects that the Covid-19 vaccines are, albeit remotely, ‘derived’ from aborted fetal cell lines. This directly contradicts the district court’s conclusion.”

According to UCLA Health, Pfizer, Moderna and Johnson & Johnson did use fetal cell lines grown in a laboratory from decades-old elective abortions during early development stages and for testing purposes. However, none of the coronavirus vaccines produced by either of the three companies actually contain aborted fetal cells or fetal tissue.

White had also commented on the sincerity of the employee’s beliefs. The panel pushed back on that, finding San Francisco “offered no argument or evidence that appellants’ beliefs are insincere. Absent any indication otherwise, it seems that the district court erroneously held that appellants had not asserted sincere religious beliefs because their beliefs were not scientifically accurate.”

San Francisco's vaccination requirements remain in place despite both the state of California and the CDC ending emergency Covid-19 pandemic declarations.

Categories:Appeals, Government, Health, Religion

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