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).
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