A delivery man takes vaccine doses to Oregon Health & Science University on Marquam Hill in Southwest Portland in 2021. A new federal appeals court ruling dealt with the issue of vaccination mandates in Oregon. (Photo by Oregon Health & Science University)
An Oregon woman failed to convince a federal appeals court to reinstate her lawsuit alleging a health care employer discriminated against her Christian faith in its enforcement of the state’s COVID-19 vaccine mandate for health care workers.
The 2-1 Tuesday decision from the 9th Circuit Court of Appeals affirms a November 2023 ruling from U.S. District Court Judge Karin Immergut, who dismissed the claims of Sherry Detwiler, a former privacy officer and director of health information for the nonprofit hospital Mid-Columbia Medical Center located in The Dalles.
Chief District Judge Richard Seeborg wrote that Detwiler’s claims were personal and based on her own understanding of medicine, not her religious beliefs. Detwiler brought her lawsuit against the medical center on the grounds of Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on factors such as religion, race, national origin, color and sex. Seeborg and Judge John B. Owens, both Obama appointees, made up the majority opinion, while Trump appointee Judge Lawrence VanDyke dissented.
“Ultimately, Detwiler’s objection to testing is grounded in the secular belief that the nasal swabs in antigen tests are carcinogenic. She failed to plead facts demonstrating her belief in the harmfulness of the swabs was related to her Christian faith,” the 40-page ruling reads. “Detwiler’s references to prayer and a broad belief that her body is a temple do not render her medical evaluation of the swabs religious.”
The dispute traces back to a 2021 Oregon Health Authority rule requiring health care workers to vaccinate against COVID-19 unless they received an approved exemption. Detwiler argued her Christian faith left her with a duty to avoid substances the Bible condemns or “which could potentially cause physical harm to her body.”
The medical center she worked for opted to allow Detwiler to wear protective equipment and submit to weekly nasal swab testing instead, but she was not satisfied. Relying on online sources, she claimed that the swab’s sterilizing chemicals would expose her to carcinogens and sought weekly saliva testing instead. The sterilized ethylene oxide Detwiler claimed was dangerous is commonly used to clean swabs and medical equipment, which medical experts compare to safely using bleach for cleaning, not ingesting.
Detwiler’s employer disagreed with her proposed solution, finding that it would be impractical given how often she was needed in-person, according to the ruling, which also notes that complaints about her remote performance had been growing since the pandemic. The center terminated Detwiler in December 2021 after placing her on unpaid leave for failing to comply with the state’s rule or accept an alternative job assignment.
A year later, Detwiler sued with the backing of a California-based conservative Christian legal advocacy group, the Pacific Justice Institute. Matt McReynolds, deputy chief counsel for the Pacific Justice Institute, told the Capital Chronicle that the organization plans “to seek further review.”
“While we’re disappointed with the Ninth Circuit’s split decision in the Detwiler case, we remain undaunted,” McReynolds said in a statement. “The decision adopts a narrowed view of religion which we believe is at odds with past decisions of the Ninth Circuit, the Supreme Court and most other Circuits.”
The case could still be appealed to a broader panel of circuit judges or make its way to the U.S. Supreme Court, which ruled in January 2022 against considering COVID-19 a workplace hazard that could justify requiring the vaccine for businesses with more than 100 employers. That case came alongside another decision upholding the vaccination mandate for health care personnel in Medicare and Medicaid-funded settings. Legal experts have speculated that the Supreme Court could take up a landmark case involving similar vaccine mandates by this fall.
The Oregon Health Authority, which is not a defendant in the case, began its repeal of the COVID-19 vaccine mandate for health care employers in May 2023 on the grounds that there was no longer “a significant public health need” for the rule. State health officials ended a similar rule requiring masking earlier that same year.
In his dissent, VanDyke wrote that the majority’s approach would further drag courts into “intractable” questions over the line between religious objections and personal judgement. He warned that judges could operate with too much leeway to define what counts as a truly religious belief or principle.
“Detwiler pled that her religion teaches that her body is a temple and that a nasal swab would violate the religious principles that govern how she treats that temple. Her objection is grounded in Scripture, prayer, and religious experience,” VanDyke wrote. “Those grounds directly connect Detwiler’s rejection of the nasal swab to religious principles and support a plausible inference of religious beliefs protected under Title VII — the only conclusion consistent with the published decisions of other federal courts of appeals.”
Since Detwiler brought her suit against the health care provider, the mid-Columbia Medical Center has undergone a name and leadership change. The faith-based nonprofit health system Adventist Health announced the center would come under its purview in June 2023, renaming the location as Adventist Health Columbia Gorge.
“While Adventist Health does not comment on active litigation, we believe the 9th Circuit reached the correct decision in this matter,” said Laurel Rogers, a spokesperson for Adventist Health, in a statement.
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