Five anonymous parents recently filed a lawsuit in Brooklyn Supreme Court against the Department of Health and Mental Hygiene and its commissioner, Dr. Oxiris Barbot. At issue is an emergency order making measles vaccinations mandatory, which opponents claim violates their religious beliefs.
Clearly, this is a highly sensitive issue, especially since the Orthodox Jewish community in Brooklyn has been hit quite hard by this latest measles outbreak. Across New York City, just shy of 300 cases have been reported, many of those in Williamsburg, Brooklyn. However, based on prior case law, the Brooklyn Supreme Court has compelling reason should it rule against the parents in this case.
In essence, the suit touches on the difficult question of when personal religious beliefs are outweighed by public safety concerns. According to the New York Post:
Mayor de Blasio on Tuesday declared a public health emergency over an outbreak of measles in Williamsburg and ordered mandatory vaccinations in the Brooklyn neighborhood under the threat of $1,000 fines — and even the possibility of forcible injections.
The unprecedented move, which covers more than 212,000 people living in an area covered by four ZIP codes, followed the diagnoses of 285 cases of measles in the city — mostly in Williamsburg — since October.
Under the order signed by Health Commissioner Oxiris Barbot, everyone who lives, works or attends school within the 11205, 11206, 11211 and 11249 ZIP codes and isn’t already immune to measles must be vaccinated within 48 hours.
Parents are responsible for getting their children vaccinated, and the only exception is for people who can prove they ‘should be medically exempt.’
Health Department inspectors will also visit Jewish religious schools to make sure that yeshiva students who haven’t been vaccinated ‘are being appropriately excluded [from school] under this order,’ Deputy Mayor of Health and Human Services Herminia Palacio said.
According to the Post, opponents to this order allege that the measles outbreak isn’t serious enough for the quick 48-hour vaccination requirement, since no deaths have been reported in the outbreak. They also allege that they are being forced to vaccinate for rubella and mumps, which they claim is risky, and that the measles, mumps, and rubella (MMR) vaccine carries risks for children under 12 months of age and young women who may become pregnant.
The lawsuit claims that “the respondents’ emergency orders unnecessarily override the petitioners’ and their children’s religious practices and the children’s lawful exemptions from vaccination to attend school, which they have obtained in full compliance with Public Health.”
This is a very difficult issue, as it pits the right to individual autonomy, informed consent, and the free exercise of religion against the city’s need to protect the public. However, Mayor Bill de Blasio’s order appears to be somewhat well-supported from a legal perspective.
In Jacobson v. Massachusetts (1905), the United States Supreme Court considered the issue of mandatory vaccinations with regard to a smallpox outbreak. In discussing the Jacobson case, the AMA Journal of Ethics explained:
There the Court ruled that the police power of a state absolutely included reasonable regulations established by legislature to protect public health and safety. Such regulations do not violate the 14th Amendment right to liberty because they fall within the many restraints to which every person is necessarily subjected for the common good. Real liberty for all cannot exist if each individual is allowed to act without regard to the injury that his or her actions might cause others; liberty is constrained by law. The Court went on to determine in Jacobson that a state may require vaccination if the board of health deems it necessary for public health or safety.
While people have varying opinions about the safety and efficacy of vaccines, the question is whether such concerns and the decision not to vaccinate should outweigh the potential public health risks. The answer to this question, based on Jacobson, appears to be no. A subsequent question is whether the decision not to vaccinate based on deeply held religious beliefs should be protected when there is a risk or threat to the public.
Interestingly, as noted by Stat News, Jacobson did not involve a religious exemption from vaccination. In other words, the argument against mandatory vaccination revolved around the harmful effects of the smallpox shot on the plaintiff and his son. It had nothing to do with Jacobson’s religious beliefs.
According to Stat News, citing Wendy Parmet, a professor of public health law at Northeastern University, “multiple cases over the years have, if indirectly, created the impression that the Constitution does not enshrine the right to object to vaccination on religious grounds. It’s pretty clear there is no constitutional right to a religious exemption.” Moreover, according to The Jewish Star, some rabbis have opined that there are no legitimate religious grounds to oppose vaccination. There are, however, clear religious grounds to make vaccination of kids obligatory.
Undoubtedly, this case will slowly work its way through the court system. Of course, by the time it reaches the end of the road from a legal standpoint, the outbreak could be over. Regardless, it will be interesting to see how the courts handle this difficult and very delicate legal issue.