By Dorit Reiss
On June 13, 2019 New York repealed the religious exemption from its school immunization mandates. While the actual repeal went fast – the bill passed the Assembly health committee, the Assembly floor, the Senate floor and the Governor’s office on the same day – the bill has been in the process since January, and activists on both sides were active in the lead up to the vote. The bill was a response to a large measles outbreak in New York that sickened hundreds of people and hospitalized over a hundred, sending tens to the ICU.
Not surprisingly, opponents filed lawsuits against the new law. Two of these lawsuits were led by the Children’s Health Defense organization, an anti-vaccine group led by Robert F. Kennedy, Jr., though with two different lead lawyers. Eight additional ones were recently filed by two unassociated lawyers in eight different counties.
All these lawsuits face the same major obstacle: for over a hundred years, courts have consistently upheld school immunization mandates as constitutional. New York’s courts have upheld an immunization mandate in 1904. The Supreme Court of the United States upheld such mandates in 1922. Courts have repeatedly stated that a religious exemption is not required – the federal Second Court of Appeals said that in 2015, in relation to New York’s mandate. There are powerful reasons for this jurisprudence: school mandates protect children, the community, and fit with our basic public health principles.
The different lawsuits tried different ways to get around that. In the first lawsuit filed, led by civil rights Attorney Michael Sussman, Mr. Sussman argued that the legislators expressed hostility to religion. Mr. Sussman, in this argument, was drawing on Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case in which the Supreme Court overturned a finding of discrimination by a Civil Rights Commission against a baker who refused to make a wedding cake for a same sex couple because the Commission’s statements demonstrated hostility to religion.
In a detailed decision Judge Denise A. Hartman from the New York Supreme Court rejected the argument, on the grounds that while plaintiffs made a case that they will be irreparably harmed by the change in law, they did not show that the balance of equities was in their favor, since a stay could create a risk of measles to children with medical conditions that prevent vaccinating (among others). The judge also concluded that the chances of success on the merits were low, given the extensive jurisprudence upholding school mandates without religious exemptions. The judge found that there are clear indications that the purpose of the law is public health, and little indication of hostility to religion.
Further, the judge pointed out that courts have consistently found school mandates constitutional even under strict scrutiny.
Plaintiffs appealed the decision.
The second case focused on the fact that the new law did not exempt children with individual education programs – disabled children covered under the IDEA Act. They claimed that the act preempted New York’s change of law. Echoing the views of public health law scholars Silverman and Hensel, Judge Ross from the federal district court of the Eastern District of New York refused to issue a preliminary injunction since she found that the plaintiff did not show a reasonable chance for success on the merits. The judge found that it was the parents’ choice – not any specific discrimination against disabled students – that prevented the children from accessing school and services in it.
Following the denial of the request for preliminary injunction, plaintiffs voluntarily withdrew the lawsuit.
The final set included eight lawsuits using identical claims but different plaintiffs. This reads as an effort for judge shopping, and it would be reasonable for the state to aim to consolidate the different claims, if possible.
The lawsuits open by supporting a claim of sincere religious beliefs by pointing to several vaccine ingredients, including the use of cell lines in vaccines, and animal-related ingredients. While these claims might be relevant to establishing sincerity when there is a religious exemption, they are not directly relevant to whether the state is required to provide a religious exemption. The lawsuit claim that New York’s protection of religious freedom is more demanding than that required under the federal jurisprudence. While there is something to that, the lawsuit overstates the case. As demonstrated by the strongest case it cited – Rourke Correctional Serv. (1994) – New York uses a balancing test, and the appellate decision in the case applied a standard that appears lower than strict scrutiny, looking for a “legitimate State interest that outweighs petitioner’s right to practice his religion.”
A later case that the lawsuits cite – Catholic Charities of Diocese of Albany v. Serio – actually goes against their claim. In that case, the highest court of the land – New York’s Court of Appeals – stated that in applying the balancine test:
… substantial deference is due the Legislature, and that the party claiming an exemption bears the burden of showing that the challenged legislation, as applied to that party, is an unreasonable interference with religious freedom. This test, while more protective of religious exercise than the rule of Smith, is less so than the rule stated (though not always applied) in a number of other federal and state cases.
This authoritative pronouncement from the highest court in New York makes it clear that the legislature has substantial leeway in passing laws that affect religion. In the case of vaccine mandates, other courts have upheld them even when held to a strict scrutiny, let alone this lower standard. The state has a very strong claim that tightening school mandates in the middle of a measles outbreak is a reasonable measure, even if it interferes with religious practice.
In short, while the litigation in New York will likely continue for a while, the state has strong arguments against those seeking to invalidate the bill.