New York City’s Mandatory Vaccination Order: Parental Objections & Judicial Reinforcement

Written by Sean Ferrito

 

 The Outbreak

 In 2000, the United States Center for Disease Control and Prevention declared measles, a highly contagious infectious disease, eliminated. This came after decades of national vaccination efforts. Recently, however, there has been an alarming spike in the number of reported cases of measles nationwide. From January 1 to May 3, 2019, there have been 764 confirmed cases of the disease, across 23 states. The total has been increasing at a rate of 60 cases per week. This represents the highest number of cases in 25 years, since 1994.

The CDC points to travel and vaccination abstinence as principle causes of the outbreaks. Many citizens choose not to vaccinate themselves or their children for religious reasons; others for moral or scientific reasons. Due to low vaccination numbers, Rockland County and Brooklyn, New York have seen spikes in measles diagnoses that have prompted government action. In Williamsburg, Brooklyn, there have been 285 diagnoses during the current outbreak. During the entire 2016 calendar year, only 85 diagnoses were reported nationwide.

Government Action

On April 9, 2019, Dr. Oxiris Barbot, Commissioner of the New York City Department of Health and Mental Hygiene, declared a public health emergency pursuant to Section 3.01 of the New York City Mental Health Code. Along with this declaration, the Commissioner issued an order to all persons who live, work, or attend school in Williamsburg, Brooklyn, and all parents and guardians of children who live, work, or attend school in Williamsburg.  The order requires that those within the area, who are not immune to measles and do not have a medical exemption, “shall be vaccinated.”

It is not clear whether the order requires “forced vaccination.” While the order provides that failure to comply is a misdemeanor and can result in fines and imprisonment, it does not specify what shall be done in instances of repeated refusal to vaccinated. The Department of Health and Mental Hygiene has stated that it will handle such matters on a “case-by-case” basis.

In a press release, the Health Department announced that those found to be non-compliant with the order will be issued a civil summons and must appear at a hearing. If the hearing officer upholds the summons, a penalty of $1,000 will be imposed. A failure to appear at the hearing or respond to the summons will result in a $2,000 fine.

Objections to the Order

On April 15, five mothers of children within the scope of the order filed a complaint against Dr. Barbot and the NYC Department of Health and Mental Hygiene in the Supreme Court of New York, Kings County. The mothers sought vacation of the order on scientific, religious, and moral grounds. The complaint alleged that there was “insufficient evidence of a measles epidemic or a dangerous outbreak to justify the respondents’ extraordinary measures, including forced vaccination.” Further, the mothers argued that the order violates their constitutional rights to exercise their religion, as their choices not to vaccinate their children stem from religious beliefs. The complaint also asserted that the order was unlawful because “forced vaccinations” raise issues of informed consent, medical ethics, and human rights.

Judicial Response

A few days after the complaint was received, the Honorable Lawrence Knipel issued a decision on the matter, and dismissed the case. Knipel addressed each one of the objections in turn, and concluded that the petitioners had failed to show that they were entitled to injunctive relief. Regarding the petitioner’s scientific objections, Knipel asserted that the Commissioner had a rational, non-pretextual bases for declaring a public health emergency and issuing the order. Knipel pointed to scientific data that indicates that the outbreak is the most significant in years, and Williamsburg is at the epicenter. Knipel also dismissed as merely speculative opinions of doctors that the petitioners presented, that the MMR vaccines pose a risk to human health.

Knipel then dismissed the petitioners’ religious objections. He stated that the petitioners’ affidavits simply said that the MMR vaccine was against their religious beliefs. These were insufficient to raise legitimate objections, according to Knipel, as they were not supported by accompanying affidavits of religious officials. Lastly, Knipel rejected the moral objections, concluding that the order does not compel forced vaccination. The judge also explained that informed consent is not an issue under these circumstances, as “[a] fireman need not obtain the informed consent of an owner before extinguishing a house fire.”

Conclusion

What is next in this battle is uncertain at the moment. Perhaps if those affected by the order can submit more sufficient evidence, they may be able to have the constitutional issue addressed by a court. Robert Krakow, an attorney who represented one of the mothers, expressed an intent to continue pursuing the case. Krakow acknowledged the importance of public health, but stated that he wants to “make certain that public health authorities choose methods that are appropriate to the circumstances.”

Sources

Amanda Robert, Judge blocks parents’ move to quash measles vaccination order, ABA Journal (Apr. 22, 2019).

C.F. v. New York Cty Dep’t of Health and Mental Hygiene, No. 508356 (N.Y. Sup. Ct. Kings Cty. 2019)

Complaint for Petitioners, C.F., et al., No. 508356 (N.Y. Sup. Ct. Kings Cty. 2019)

Donald G. McNeil Jr., New York City is Requiring Vaccinations Against Measles. Can Officials Do That?, The New York Times (Apr. 9, 2019).

Order of the Commissioner, New York City Dep’t of Health and Mental Hygiene (Apr. 9, 2019)

Press Release, New York City Dep’t of Health and Mental Hygiene, Health Department Issuing Civil Summonses to Three People for Failing to Comply with Commissioner’s Emergency Vaccination Order During Measles Outbreak (Apr. 18, 2019).

U.S. Dep’t of Health & Human Services, Centers for Disease Control and Prevention, Measles Cases and Outbreaks (May 6, 2019).

Photo courtesy of Medical News Today

“He is Terrified of You”: The Legal Implications and Questions Surrounding the Tyreek Hill Audio

Written by Richard H. Miller III

Introduction

On April 25, 2019, just a day after Johnson County District Attorney Steve Howe declined to criminally charge Kansas City Chiefs Star Tyreek Hill, the Office re-opened their investigation into possible domestic abuse following the release of an audio tape detailing a conversation between Hill and his fiancée, Crystal Espinal. Hill, a three-time pro bowl wide receiver, has been under investigation by the Johnson County District Attorney’s Office for domestic violence related to a March-incident at his residence involving Espinal and his three-year-old son.

The Accusations

The Johnson County DA’s Office has been investigating Hill and Espinal for child abuse-related offenses involving their three-year-old son. When responding to a 911 call in March, investigators found the boy with a broken arm at the Hill residence; this prompted a full investigation into potential abuse of the child. While Hill and Espinal have publicly denied allegations of physically abusing their son, calling his broken arm “an accident,” Child Protective Services have removed the child from Hill and Espinal’s custody.

On April 24, 2019, District Attorney Steve Howe ended the investigation into possible child abuse, saying that “we believe a crime has occurred, however, the evidence in this case does not conclusively establish who committed this crime.” However, on April 25, 2019, after KCTV5 aired exclusive new audio of Tyreek Hill discussing the allegations, the District Attorney’s Office re-opened the child abuse investigation.

The Recording

The recording is over eleven minutes long and was obtained by KCTV5 in early April. The conversation was allegedly recorded by Espinal while the couple was vacationing in Dubai, India as an “insurance policy” incase Hill tried to accuse Espinal of abusing their son or otherwise incriminating her.

The recording revolves around the domestic abuse allegations surrounding the couple’s three-year-old son and the investigation into the couples’ role in his broken arm. In it, Espinal states how their son tells her how “daddy did it” and how the child is “terrified” of Hill due to being frequently punched in the chest by Hill and being hit with belt as a form of discipline. Hill then responds to Espinal, saying “[y]ou need to be terrified of me, too, [expletive]” and subsequently denies any role in breaking the boy’s arm.

The Recording’s Legal Implications and Questions

The recording could be used as a basis to prosecute Crystal Espinal for unlawful dissemination. Section 21-6101 of the Kansas Penal Code makes it a misdemeanor for anyone to surreptitiously record or disseminate a surreptitious recording, obtained without the consent of both parties to the conversation. The Breach of Privacy Law allows for a few enumerated exceptions to the requirement of two-party consent, but these exceptions only apply to wireless service providers and those acting with a “bona fide and lawful scientific, educational, governmental, news or other similar public purpose.” Absent an exception to the Law, it is illegal for a person to record another without their consent or to disseminate a recording of another obtained without their consent.

Espinal allegedly recorded Hill without his consent and used this recording as a form of insurance policy against Hill. While it is unclear whether it was Ms. Espinal who sent this information to KCTV5, by knowingly divulging the content of a message or conversation with another person recorded without their consent, Espinal may be in violation of the Breach of Privacy Law, and subject to criminal prosecution.

Additionally, the Johnson County District Attorney’s Office may use this recording in any potential prosecution of Tyreek Hill. While the recording and its dissemination may itself be a basis for criminal charges, it does not appear that the DA’s Office would be prohibited from using the recording against Hill in a criminal case. The Kansas Rules of Evidence allow for a judge, at their discretion, to exclude evidence “if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.” However, with Tyreek Hill and his attorney now being aware of the contents of the audio tape, there would not be the “undue surprise” which is prohibited by the rule.

Conclusion

Although it is uncertain what charges, if any, the Johnson County District Attorney will bring against Tyreek Hill or Crystal Espinal, there is sure to be a legal fight as to the admissibility of the eleven-minute audio tape obtained by KCTV5. Whether the tape will be used to prosecute Crystal Espinal, whether it can or will be used in potential prosecution of Tyreek Hill, or whether the tape could lead to any civil liability for Hill are all questions for another day. In the words of NFL Commissioner Roger Goodell, absent more facts or a formal indictment, “you don’t rush to judgment and you don’t make a decision without having [the] facts.”

Sources

Associated Press, Chiefs owner ‘deeply disturbed’ by Tyreek Hill allegations, KWCH12 (Apr. 26, 2019, 12:15pm).

Dave Skretta, DA declines to charge Chiefs’ Hill in domestic violence case, KWCH12 (Apr. 24, 2019, 3:32pm).

Kan. Law & Prac., Guide Kan. Evid. § 5:1

Kan. Stat. Ann. § 21-6101(4)

Kansas Judicial Council, 61.020 Breach of Privacy—Divulging Message (Mar. 2018).

KCTV5 obtains recording of Tyreek Hill and Crystal Espinal discussing their son’s broken arm, youtube.com (April 25, 2019).

Lorenzo Reyes, Chiefs’ Tyreek Hill accused of hitting son, threatening fiancee in audio, USA Today (Apr. 25, 2019, 9:02pm).

Mara Rose Williams, Reporter knew of Tyreek Hill audio ‘for weeks’ before source finally OK’d its release, The Kansas City Star (Apr. 26, 2019, 2:01pm).

Tyler Conway, Lawyer: Tyreek Hill ‘Categorically Denies’ Crystal Espinal’s Child Abuse Claims, Bleacher Report (May 2, 2019).

Photo Courtesy of KCTV5 Kansas City

Federal Court Grants Nationwide Preliminary Injunction Blocking New Title X “Gag Rule” from Taking Effect

Written By Lesley M. Harlem

Introduction

On Thursday, April 25, United States District Court Judge Stanley A. Bastian granted a nationwide preliminary injunction temporarily blocking the imposition of a “gag rule” that would bar health care providers from performing abortions or referring patients for abortions if the providers are recipients of Title X funding. The rule was scheduled to take effect on May 3.

Title X

Title X, also known as the Family Planning program, was enacted in 1970 under President Nixon as part of the Public Health Service Act. Its purpose is to provide individuals with comprehensive family planning and preventive health services by fostering access to contraceptive services, supplies, and information. Last year Title X provided $286 million in funding to organizations that offer services such as birth control, screening for breast cancer and cervical cancer, and screening and treatments for sexually transmitted diseases. These organizations serve roughly four million low-income, uninsured patients each year at more than 4,000 clinics across the country. Planned Parenthood receives nearly $60 million in Title X funding and operates roughly 40% of the 4,000 clinics.

The tension surrounding Title X is due to its treatment of abortion. Since its enactment, funds appropriated for Title X have been explicitly prohibited from being used for abortion services. On March 4, the Trump Administration published a final rule to Title X in the Federal Register further restricting abortion. Most notably, the final rule requires complete financial and physical separation between a Title X program and any service that falls outside of the program’s scope—i.e. abortion. Effectively, this provision would require clinics to have “separate entrances and exits, treatment facilities, and personnel as well as duplicate health care records.”

Additionally, the final rule revokes part of the regulations implemented in 2000 which required Title X programs to provide an abortion referral if requested by a patient. The final rule expressly prohibits recipients of Title X funds from supporting, performing, promoting or referring for abortion—commonly referred to as the “gag rule.” Health care providers may, however, mention abortion in a “nondirective” way, that is “not suggesting or advising one option over another.” Lastly, the rule requires Title X providers to refer pregnant patients to prenatal care programs, regardless of the patient’s wishes or the provider’s professional medical judgment. The final rule was scheduled to take effect on May 3.

Nationwide Response

A series of three lawsuits were filed in federal district courts in California, Washington, and Oregon opposing the final rule. The first lawsuit was filed by California Attorney General Xavier Becerra in U.S. District Court in San Francisco on March 4, the same day the final rule was published in the Federal Register. On March 5, Washington Attorney General Bob Ferguson along with the National Family Planning & Reproductive Health Association filed a lawsuit in the Eastern District of Washington. Shortly after, a lawsuit joined by 20 states, the District of Columbia, the American Medical Association and Planned Parenthood affiliates was filed in U.S. District Court in Eugene, Oregon.

The consensus among the petitioners in each case is that the final rule is “arbitrary and capricious,” unlawful, and in violation of the Affordable Care Act. The Affordable Care Act prohibits the federal government from imposing a rule restricting “the ability of health care providers to provide full disclosure of all relevant information to patients making health care decisions.” The “gag rule” arguably violates this provision because it prevents providers from disclosing and referring patients to abortion, even if the patient requests such information. The Affordable Care Act also prohibits the federal government from imposing a rule that creates “any unreasonable barriers to the ability of individuals to obtain appropriate medical care.” The physical separation requirement allegedly violates this provision because of the unreasonable burden of separation imposed by the provision. The main concern, however, is that millions of women would either be left without health care services because of federal defunding, or, that they would be under-informed in their decision-making.

In order to grant a preliminary injunction, each judge had to find that the respective lawsuit against the Trump Administration “was likely to succeed and that the rule, if not blocked, would cause irreparable harm to the [respective state] and its residents.” California issued a statewide preliminary injunction against both the physical separation requirement and “gag rule,” and Oregon Judge Michael J. McShane has stated that he plans on granting a statewide injunction similar to California’s. Judge Bastian’s injunction is the most far-reaching of the three, as it prevents the rule from taking effect across the entire nation.

Conclusion

The nationwide preliminary injunction is subject to appeal, and if overturned on appeal, the final rule will go into effect. Because federal courts in both Oregon and California have, or will have, statewide injunctions, a reversal of the nationwide injunction will not affect either statewide injunction. Nevertheless, the statewide injunctions are subject to appeal. However, absent a challenge, all preliminary injunctions  are in effect until the respective case is formally decided by the District Court where the case was filed.

Citations

Ariana Eunjung Cha, 21 States To File Suit To Block Trump Administration’s Abortion ‘Gag Rule’ In Family Planning Program, The Wash. Post (Mar. 4, 2019).

Compliance With Statutory Program Integrity Requirements, 84 Fed. Reg. 7714 (Mar. 4, 2019) (to be codified at 42 C.F.R. pt. 59).

Kate Smith, Trump Administration “Gag Rule” That Would Have Stripped Planned Parenthood Funding Was Just Blocked, CBS News (Apr. 25, 2019, 7:50 p.m.).

Media Release, Oregon Department of Justice, Oregon Leads National Lawsuit Challenging New Title X “Gag Rule” (Mar. 4, 2019).

Mike LaSusa, Trump’s Abortion ‘Gag Rule’ Blocked By Courts, Law 360 (Apr. 26, 2019 11:30 p.m. EDT).

News Release, Washington State Office of the Attorney General, AG Ferguson Files Lawsuit In Yakima Over Trump’s Family Planning “Gag Rule” (Mar. 5, 2019).

News Release, Washington State Office of the Attorney General, Federal Judge Blocks Trump Admin Family Planning “Gag Rule” Nationwide (Apr. 25, 2019).

Pam Belluck, Judge Temporarily Blocks Trump Rule on Abortion Referrals, N.Y. Times (Apr. 25, 2019) .

Press Release, State of California Department of Justice, Attorney General Becerra Obtains Preliminary Injunction Protecting California’s Title X Program (Apr. 26, 2019).

S. Department of Health and Human Services, Office of Population Affairs, Fiscal Year 2019 Program Priorities, (last visited April 30, 2019).

State of Washington’s Motion For Preliminary Injunction, Mar. 22, 2019.

Photo courtesy of The Washington Post