Mark Carpenter is a kidney transplant recipient who thought the COVID-19 vaccine would work for him and also thought the health care providers treating him would be vaccinated.
But his body hasn’t developed much immunity with the vaccine, and COVID-19 could seriously affect his heart, lungs and one functioning kidney, he said.
He has had horrific medical experiences because of his condition, he said. He said his lungs filled with fluid, he coughed up blood, and his wife had to rush him to the emergency room.
When he visits a health care provider, he expects to be safe.
“It never occurred to me that they wouldn’t be vaccinated, that it wouldn’t be a job requirement,” said Carpenter, a Missoula and Seely Lake area man.
On Monday, Carpenter was among the witnesses who took the stand in a trial against House Bill 702, which would ban 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 Labor and Industry Commissioner Laurie Esau. The Montana Nurses Association also intervened in this case.
The plaintiffs argue that HB 702, which was passed by the Legislature in 2021 at the height of the pandemic, is unconstitutional and unlawfully restricts the ability of doctors’ offices and hospitals to determine work conditions based on immunity status. The defendants, on the other hand, argue that the state has the power to protect citizens from discrimination and they should not have to disclose private health information in order to get a job.
In testimony in Russell Smith Federal Court in Missoula, the plaintiffs’ medical experts generally testified that health care employers need to know the status of their employees to know where best to place them to keep staff and patients safe .
In his opening statement on behalf of the plaintiffs and intervenors, attorney Raf Graybill said the trial was unusual because doctors and nurses, workers and management stood 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 of Montana and the Western Montana Clinic.
Graybill argues that healthcare organizations need to know an employee’s immunity status to reduce the risk of death and serious illness from a vaccine-preventable disease in healthcare settings. But he said HB 702’s bans put people at risk.
“We will show that HB 702 sabotages public health and is a clear and present danger to individual health as well, especially to those who are immunocompromised,” Graybill said.
However, Deputy Attorney General Brent Mead, on behalf of the defendants, argued that the bill was not about public health or vaccinations at all. Rather, he said, another branch of the state is on trial in the case.
“This is not public health,” Mead said. “These are not vaccines. The question is whether the state can choose to protect its citizens from discrimination based on their medical choices.
He also said the record shows the plaintiffs already have on file vaccination records for employees — the very records they claim HB 702 denies them. He further argued that the exemptions made by the state in HB 702 for various health care facilities are nearly the same distinctions made by CMS, the Centers for Medicare and Medicaid Services, indicating that the state made a rational choice.
“The state has an unquestioned police power to protect citizens who are discriminated against,” Mead said.
The defense is expected to present witnesses on Tuesday.
Judge Donald Molloy heard the case, and before the lawyers made their opening statements, he reminded them that state resources were being used and they should use their time wisely.
(If lawyers raised an objection, for example, he told them to cite the rule on which they based it, but to refrain from argument.)
“Mind you, we’re not going to waste any time,” Molloy said.
Witnesses have submitted written statements for the record, and lawyers are questioning them. On several occasions, the judge told Michael Russell, a lawyer for the defendant, that he had made his point while questioning a witness for the plaintiffs – or that the matter was irrelevant – and asked the lawyer to continue.
“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 servant of Satan” about vaccine advances, 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 completely unpredictable and therefore our most dangerous, most wanted medical criminal,” said King, who works in Bozeman and Belgrade and said he himself has lived with an autoimmune disease his entire life.
However, King, who has practiced medicine for 40 years, also said that HB 702, passed by the Montana Legislature in 2021, does not actually allow medical professionals to prevent harm to their patients.
For example, he said, hospitals should be able to keep babies safe by not allowing workers who are not immune to whooping cough or whooping cough to end up in the neonatal intensive care unit. These babies are usually premature, he said, and a highly contagious respiratory infection would be fatal for them.
King said the volatility of COVID-19 makes it particularly dangerous, but he testified to the role that politics also plays. He said he fears HB 702 will spawn other regulations contrary to medical science, particularly ones that harm children.
Despite the medical community’s broad support for vaccinations, he said he’s seen a “militant disrespect” for vaccines, fueled in part by state lawmakers, and fears it will breed more “dysfunctional regulation.”
He himself has lost family members to COVID-19, including his mother, 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 eventually starved to death.
“Medicine is united in its support of vaccination, and when a state legislature decides that they will go against the advice of doctors and medical organizations, that disrespect is contagious, to use a word we talk about so much,” King said.
Former state medical officer Greg Holtzman also weighed in and said knowing who is immune can help public health officials act quickly when time is of the essence in an outbreak. Holtzman, who said he now works as a consultant in Helena, also argued that the decision to require vaccines should be up to each health care facility and its specific needs.
“I would like the hospital or the clinic or the dialysis center to be able to make those decisions knowing their own risk/benefit in those communities and the type of patients they care for,” Holtzman said.
The case will continue on Tuesday and is expected to last another day.