A baby getting vaccinated by a doctor wearing gloves.

The Rockland Ban: The Next Step in the Battle Against Measles

Rockland County, New York’s Executive, Ed Day, issued an emergency declaration last month, banning unvaccinated children from public places. Although this seems like a drastic step, it is the culmination of extensive efforts to stem a large outbreak created by anti-vaccine misinformation. It is also in line with principles of public health.

For months, Rockland county in New York has been battling a large measles outbreak. As of April 2, 2019, the outbreak reached 158 cases. The vast majority of cases – 86 percent – were in minors under the age of 18, and over 50 percent are under six years old. Only 3.8 percent of the victims are fully vaccinated (3.8 percent received two doses of the Measles, Mumps, Rubella vaccine, MMR). And 82.8 percent of cases are known to be unvaccinated. Many of the cases are concentrated in Orthodox Jewish neighborhoods.

In part, the problem is the result of extensive efforts by an anti-vaccine group to scare parents in the Jewish Orthodox community into not vaccinating their children. The group created an anti-vaccine pamphlet full of misinformation, and participated in conference calls where parents were provided incorrect information about vaccines.

County officials took a number of steps to combat the outbreak (as did local nurses and local religious leaders). They provided education campaigns, offered free and accessible vaccination clinics, vaccinating thousands of people, and excluded unvaccinated children from schools. When some schools failed to comply and did not exclude unvaccinated children, the county fined them.

But the outbreak continued.

In a press conference announcing the new step, County Executive Day praised the cooperation of most of the community. He pointed out, however, that the resistance of a minority of residents led to the outbreak continuing. Because of that, he issued a Declaration of Emergency, under s. 24 to New York’s Executive Law, which, in the relevant part, allows an Executive, in a “public emergency,” to declare a local state of emergency for 30 days, which can then be extended. Among other things, the statute empowers the Executive to provide for: “e. the prohibition and control of the presence of persons on public streets and places;”

The emergency declaration stated, in the relevant part:

“From 12:01 am, March 27, 2019 to 11:59 PM, April 25, 2019, no parent or guardian of a minor under the age of 18 shall cause, allow, permit or suffer a minor or infant under their supervision to enter any place of public assembly in Rockland county, if that minor or infant is not vaccinated against measles for any reason other than being serologically immune to measles as documented by a physician, or prevented from receiving the measles vaccination for a medical reason as documented by a physician, or because the infant is under the age of 6 months.”

The order did not cover hospital or medical visits, though unvaccinated people were required to call ahead and warn the medical facility of their visit. Vaccinating a child would end the ban for the child.

In a statement accompanying the emergency order, the County announced that “law enforcement will not be patrolling or asking for vaccination records, but those found to be in violation will be referred to the Rockland County District Attorney’s Office.”

Naturally, there was criticism of the decision, especially from anti-vaccine circles. They claimed the order was oppressive, discriminatory on religious grounds, and unreasonable.

However, public health law often has to balance protecting the public from disease with individual autonomy, and there are several reasons to see this measure as well within what is permissible under it.

First, this order was a late step after efforts to use less coercive measures to control the outbreak failed. The county attempted persuasion and education first, followed by the less restrictive measure of keeping unvaccinated children out of school, to protect them and the protection of others. This measure was challenged in court in one case, on the grounds that the school in question – a Waldorf school – did not have any active cases; a judge denied a preliminary injunction, suggesting that the chances of success of the court challenge were low, and at any rate, allowing the measure to stand at present. In other words, the emergency declaration was not a first step, and not a substitute to less coercive means.

Second, the measure can protect both the unvaccinated children themselves and others. Measles is extremely contagious – and dangerous.

Nine out of ten unvaccinated children exposed to it will get it – and it is contagious before it is identifiable. In other words, if any of the active cases infected others – and the period of incubation is up to 21 days – people may be walking around infected and unknowing, and they can infect unvaccinated children. A ban on attending public places directly reduces that risk.

The measure is not discriminatory on its face. While most of those affected will be Orthodox Jews, because that appears to be the majority of the unvaccinated individuals in the affected communities, there are other unvaccinated individuals there – for example, the students in the Waldorf school mentioned above. The order targets the unvaccinated, not Orthodox Jews. Most Orthodox Jewish families won’t be affected by it – the majority of them are vaccinated (and anyone can get their children vaccinated and avoid the ban). Non-Jews who are unvaccinated will also be affected.

While the proximity to Passover may cause hardship to some Jewish families with unvaccinated children, measles just before Passover would also be a hardship. Infecting others with measles – especially those at risk, like young infants or pregnant women – imposes hardship on others, and if the unvaccinated cause another family to have a member hospitalized with measles, that family’s holiday would suffer. People observing Passover deserve to do it as free of the risk of measles as possible.

The order distinguishes between those under 18 and those over it. In the press conference, Executive Day explained that distinction was because they wanted to let people get to work. That reason can be challenged; it is reasonable to suggest that unvaccinated adults are also at risk of getting and spreading the disease, and therefore, the distinction is inappropriate. But adults and children are different in meaningful way, and this distinction does not step on protected categories: all the county needs to show is a rational basis, and the Executive’s words suggested one.

One potential question is the use of the Emergency Declaration under the Executive Law rather than regular quarantine powers. But there is a good argument that a risk to public health is a risk to public safety. The ban – if enforced as described, after the fact, rather than by active patrolling – is not an extreme measure. It penalizes people who ignore it and pose a risk if, and only if, circumstances arise that draw attention to their violations – for example, if they actually infect others. Executive Day described it as mostly a statement that the county is serious about its actions, and it’s likely to have more of a declaratory effect than lead to any extensive enforcement.

The declaration seems like a statement by a county facing a lengthy public health crisis, and faced with lack of cooperation, aimed at drawing attention to the seriousness of the situation and impressing the recalcitrant minority that it means business. It’s not a substitute to education efforts, but it might provide backing to them, and maybe help stop an outbreak and protect people, especially children.

UPDATE: On April 5, 2019 a judge granted a temporary injunction halting the implementation of the ban. The Judge, apparently, was not convinced that the outbreak is an “emergency” under the Executive Act (see above), or at least, not convinced enough to let the ban stand while the case is litigated.

Dorit Reiss

Dorit Reiss

Dorit Rubinstein Reiss is a professor of law at the University of California, Hastings College of the Law. Increasingly, her research and activities are focused on legal issues related to vaccines, including exemption laws and tort liability related to non-vaccination. She published law review and peer reviewed articles and many blog posts on legal issues related to vaccines. She received an undergraduate degree in Law and Political Science (1999, Magna cum Laude) from the Faculty of Law in the Hebrew University of Jerusalem. She received her Ph.D. from the Jurisprudence and Social Policy program in UC Berkeley. She is a member of the Parents Advisory Board of Voices for Vaccines, and active in vaccine advocacy in other ways.

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