Montana doctors, nurses argue for public health; state argues for power to protect citizens

House Bill 702 on trial in U.S. District Court in Missoula

By: - October 24, 2022 8:56 pm

The Russell Smith Federal Courthouse. (Tommy Martino, for the Daily Montanan)

Mark Carpenter is a kidney transplant recipient who thought the COVID-19 vaccine would work for him, and he also figured health care providers who treat him would be vaccinated.

But his body didn’t develop much immunity with the vaccine, and COVID-19 could severely affect his heart, lungs and one functioning kidney, he said.

He’s had horrific medical experiences because of his condition, he said. He said he’s had his lungs fill with fluid, he’s coughed blood, and his wife has had to rush him to the emergency room.

When he visits a health care provider, he expects to be safe.

“It just never occurred to me that they wouldn’t be vaccinated, that that wouldn’t be a requirement of employment,” said Carpenter, a Missoula and Seeley Lake area man.

Monday, Carpenter was among the witnesses who took the stand in a trial over House Bill 702, which prohibits employment discrimination based on vaccination status or possession of an immunity passport.

The Montana Medical Association is the lead plaintiff in the lawsuit filed against Attorney General Austin Knudsen and Commissioner of Labor and Industry Laurie Esau. The Montana Nurses Association has also intervened in the case.

The plaintiffs argue HB 702, which was passed by the 2021 Legislature in the midst of the pandemic, is unconstitutional and illegally restricts the ability of physician offices and hospitals to set conditions of employment based on immunity status. The defendants, on the other hand, argue the state has the power to protect citizens against discrimination, and they should not have to divulge private health care information to get a job.

In testimony at the Russell Smith Federal Courthouse in Missoula, medical experts for the plaintiffs generally testified that health care employers need to know the status of their employees to know where to best deploy them to keep staff and patients safe.

In his opening statement on behalf of plaintiffs and intervenors, lawyer Raph Graybill said the trial was unusual in that doctors and nurses, labor and management were standing together to deliver a unified message.

“HB 702 is antithetical to public health,” Graybill said.

Other plaintiffs include individuals along with Five Valleys Urology, Providence Health and Services in Montana, and Western Montana Clinic.

Graybill argued health care entities must know an employee’s immunity status in order to reduce the risk of death and serious illness of vaccine-preventable disease in facilities. But he said the prohibitions of HB 702 put people in harm’s way.

“We will show that HB 702 sabotages public health and is a clear and present danger to individual health as well, particularly to those who are immunocompromised,” Graybill said.

However, Deputy Solicitor General Brent Mead, on behalf of the defendants, argued the bill wasn’t about public health or vaccinations at all. Rather, he said another power of the state was on trial in the case.

“It’s not public health,” Mead said. “It’s not vaccines. It’s whether the state can choose to protect its citizens from discrimination based on their medical choices.”

He also said the record shows plaintiffs already have vaccination records on file for employees – the very records they claim HB 702 denies them. Additionally, he argued the exemptions the state made in HB 702 for different health care settings were nearly the same distinctions CMS, the Centers for Medicare and Medicaid Services, made, showing the state made a rational choice.

“The state has unquestioned police power to protect citizens who are targets of discrimination,” Mead said.

The defense is expected to bring witnesses to the stand Tuesday.

Judge Donald Molloy is hearing the case, and before the lawyers presented opening statements, he reminded them government resources were in use and they should use time judiciously.

(If the lawyers raised an objection, for example, he told them to cite the rule on which they based it, but to refrain from making an argument.)

“Keep in mind that we’re not going to waste time,” Molloy said.

The witnesses had submitted written testimony for the record, and the lawyers cross-examined them. On several occasions, the judge told Michael Russell, a lawyer for the defendant, he had made his point while questioning a witness for the plaintiffs — or that the point was irrelevant — and requested the attorney move on.

“I think we’re beating a dead horse here,” Molloy said at one point.

Family physician David King, who said he has been called an “ignorant minion of Satan” for advancing vaccines, was first on the witness stand and among the medical experts who testified for the plaintiffs. He said vaccination is the most effective measure against COVID-19.

“I think COVID remains entirely unpredictable, and therefore, our most dangerous, wanted at-large medical criminal,” said King, who works in Bozeman and Belgrade and said he himself has lived with an autoimmune disorder all his life.

However, King, who has practiced medicine for 40 years, also said HB 702, passed by the 2021 Montana Legislature, actually keeps medical professionals from preventing harm to their patients.

For example, he said hospitals should be able to keep babies safe by preventing workers who aren’t immunized against Pertussis, or whooping cough, from going into a neonatal intensive care unit. Those babies are generally premature, he said, and the highly contagious respiratory infection would be lethal to them.

King said the mutability of COVID-19 makes it particularly dangerous, but he testified to the role politics plays as well. He said he fears HB 702 will spawn other regulations contrary to medical science, especially ones that hurt children.

Despite widespread support of the medical community for vaccinations, he said he’s seen a “militant disrespect” for vaccines, in part fueled by state legislators, and fears it will breed more “dysfunctional regulation.”

He himself has lost family members to COVID-19, including his mom after infected staff entered her facility, he said. His uncle was elderly and lost his sense of taste and smell from COVID, he said, and he just stopped eating and finally starved to death.

“Medicine is unified in supporting vaccination, and when a state legislature determines that they will contradict the advice of physicians and physician organizations, that disrespect is contagious, to use a word that we are talking about so much,” King said.

Former state medical officer Greg Holzman also took the stand and said knowing who is immunized can help those in public health move quickly when time is of the essence in an outbreak. Holzman, who said he is now working as a consultant in Helena, also argued a decision to require vaccines should be up to each health care setting and its particular needs.

“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 those communities and the type of patients that they’re taking care of,” Holzman said.

The trial will continue Tuesday and is expected to last one more day.

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Keila Szpaller
Keila Szpaller

Keila Szpaller is deputy editor of the Daily Montanan and covers education. Before joining States Newsroom Montana, she served as city editor of the Missoulian, the largest news outlet in western Montana.