Like Rockland county, New York City has been combatting a large measles outbreak for several months. As of April 9, 285 people were sick with measles. 246 were children, 21 were hospitalized, and five ended in the intensive care unit. New York City has taken a number of steps to combat the outbreak, including closing schools.
On April 9, 2019 Oxiris Barbot, M.D., Commissioner of Health of New York issued an emergency order under section 3.01 of the New York City Health Code – a code of regulations – that any unvaccinated adult who “lives, works or resides” in four zip codes within the area of the outbreak, and their unvaccinated children, need to be vaccinated against measles within 48 hours or face a $1,000 fine.
The officials made it clear they won’t be going to houses and checking immunization records, but will enforce the order retroactively:
“Officials said it will be enforced primarily by tracing the contacts of everyone diagnosed. The health department will investigate where each person went while contagious and all the people they may have interacted with. If investigators find an unvaccinated child who could have been exposed to measles, that child’s parents could face a violation and be subject to fines, officials said.”
An anti-vaccine group has already announced that it will bring a legal challenge, and called for donations to fund it.
The question is whether this will withstand a legal challenge. Unlike the Rockland ban, this order is very likely to withstand a challenge based on statutory interpretation. The provisions of the New York City Health Code relied on are extremely broad. While challengers may try to claim that the order contradicts the New York State provisions for school immunization requirements, a previous case – Garcia v. New York City Department of Health and Mental Hygiene (2015) – likely forecloses that: in that case, the highest court in New York state, New York Court of Appeals, found a city requirement that children in city daycares be vaccinated against influenza each year to be within the city’s powers, and not pre-empted by the school immunization requirements, because the Court found that the state has broad powers to prevent infectious disease.
The question is likely to stand or fall on the constitutional claims (the Rockland temporary injunction was completely based on statutory interpretation, not constitutional grounds). And here, some things are unclear.
There are two potential constitutional questions. The first is whether the measure is constitutional under Jacobson v. Massachusetts(1905), where the Supreme Court upheld a vaccine mandate on the grounds that individual rights do not give one a right to infect others. Jacobson stands for the idea that individual rights can be limited to protect public health. However, Jacobson, even on its terms, is not a blank check to do everything in the name of public health. A classic public health law textbook explains that “compulsory powers [are] constitutionally permissible only if they are exercised in conformity with five standards, which we shall call public health necessity, reasonable means, proportionality, harm avoidance, and fairness.” (p. 124).
There is a strong argument for public health necessity: there is a growing measles outbreak that is causing harm to over a hundred people, mostly children, in several cases severe harm, and has spread rather than stopped over the past months. The question is whether the means are reasonable and proportional – and fair.
Supporting reasonableness and proportionality is the fact that the mandate is accompanied by a fairly low fine – $1,000 – and the fine will be enforced retroactively, not by going and checking papers. The order is also limited to the areas where the outbreak is most expansive, and is general – it does not target a specific population. It also focuses on people who are completely unvaccinated, and exempts those with medical contra-indications or immunity. Measles is highly contagious, carries real risks of severe complications, and the vaccine – which is both very effective and extremely safe – can prevent it, and is the appropriate means to do so.
Against finding the order reasonable and proportionate is the fact that this order is unusual: it has been decades since any jurisdiction ordered a vaccine mandate. The last time such an order was given is in Philadelphia in 1991, and that happened after repeated children’s deaths. Before that, to my knowledge, no such order was given since at least the 1920s. That said, the Philadelphia order was not limited to a fine after the fact – police actually went to houses and vaccinated, making the New York City order less extreme. But – again to compare – the Philadelphia order was limited to a small number of families while the New York City order covers several zip codes with large populations, and people who work in them in addition. It’s a broad group of people and their children. Such a broad vaccine mandate has not happened for decades, maybe a century, and when it has, it was in the context of smallpox – which is a disease with higher fatality rates than measles.
Another potential concern about the order is that while it focuses on unvaccinated individuals, the majority of the population in the affected area is Orthodox-Jewish, and the measles outbreak is centered on Orthodox Jews. Racially targeted orders would fail the test as unfair (and racist). However, the area does include people who are not part of the ultra-orthodox Jewish community, and the order is clearly focused on non-vaccinating. Non-vaccinating in that community is not religiously motivated: for the most part, it stems from misguided concerns about safety promoted by small anti-vaccine groups. The measles outbreak is not a religious, or Jewish, problem, and there are good grounds not to see the order as religiously motivated.
Less legitimately, opponents will argue that MMR risks go against the order. The reason this argument is less likely to carry the day is that the risks of MMR are minuscule, especially in comparison to the risks of measles, and especially in the middle of the outbreak, it is unconvincing to argue that mandating the less risky choice for the people affected – people without medical reasons not to vaccinate (those with medical reasons are exempt) – negates the order.
Challengers may also try to attack Jacobson’svalidity in 2019. Much ink has been spilled on that question, but for the purpose of this post I will say that a court is unlikely to find that public health cannot limit individual rights to stop an ongoing infectious disease outbreak, though it may, as in Jacobson, require reasonableness and proportionality. This situation is probably not ideal for an effort to overturn Jacobson’s basic tenet, which is that individual rights can be limited to protect the public health.
Another potential attack on the order will be an argument that the order violates the First Amendment. There are two forms this argument may take. First, the argument will go, because New York only allows religious exemptions from school immunization mandates, and the children involved, at least, likely have religious exemptions, the state has found that they are unvaccinated on sincere religious grounds and the mandate is in tension with the First Amendment. Second, some adults may argue that their opposition to vaccines is religious, and therefore requiring them to vaccinate is a violation of their religious freedom.
The argument should be rejected on two grounds. First, there is every reason to doubt that the main reason behind the opposition is religious. Very few religions oppose vaccines, and Judaism is not one of them. This outbreak has, in fact, seen multiple Jewish religious leaders call for vaccinating. That alone would not be determinative: under our jurisprudence, the standard is whether an individual has personal religious objections to vaccines; the state would not police their compliance with organized religion. However, the evidence of anti-vaccine activism in these communities, the materials distributed – which focus on incorrect anti-vaccine claims – calls and other tools used to mislead and the statements from the very few anti-vaccine Rabbis also suggest their arguments are (problematic) anti-vaccine claims..
This suggests that the majority of non-vaccinating is due to anti-vaccine claims. The assessment of religious exemptions generally starts with schools, and schools in New York vary in how strictly they enforce the sincerity requirement. Maybe one lesson from the outbreak should be that the religious exemption should be reconsidered, and at the least, that school discretion in sincerity assessment should be tightened. A bill to remove the religious exemption is currently on the legislature’s floor.
Second, even if we accepted the claim that the opposition to vaccines is largely religious, that would not lead to the mandate being in tension with the First Amendment. As late as 2015, the Second Circuit in Phillips v. New York found that states do not have to offer a religious exemption from vaccines. The argument against a religious exemption is based on two different constitutional lines of cases: first, generally, under Employment Division v. Smith (1991), states do not have to offer religious exemptions from generally applicable, neutral on their face laws – and the mandate is generally applicable and, again, very likely motivated by concerns about the spreading outbreak, not hostility to a particular religion. Second, for over a century courts have refused to find that religious freedom preempts vaccines requires for children. Under Prince v. Massachusetts (1944), the court pointed out that religious freedom (or parental rights) do not support allowing parents to endanger their children and the community by refusing to vaccinate against a preventable disease:
“[a parent] cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.
Courts have consistently found that school mandates are not in violation of the First Amendment even if they do not offer a religious exemption, and there is every reason to apply that general conclusion to this mandate.
Basically, there is no absolute right to force a risk of disease on the community because of one’s religious beliefs. Nor is there an absolute right to sacrifice children too young to choose to such a disease; the ringing language in Prince is applicable:
“Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” Prince v. Massachusetts, 321 U.S. 158, 170 (1944).
If there is an argument against the mandate, it should stand or fall on the reasonableness of the measure – and not on religion. And there, too, New York City has at least a colorable argument.