New York vaccine mandate – judge rejects anti-vaxxer challenge

On April 18, 2019, a New York Supreme Court Judge (see Note 1) rejected a challenge to the New York vaccine mandate (pdf) brought by three lawyers (attorneys Robert Krakow, Patti Finn, and Robert F. Kennedy Jr., all of which have litigated cases on vaccines issues in the past). The litigation involved New York City’s order for an MMR vaccine mandate in certain zip codes.

The decision will likely be appealed but is well-reasoned and at this point, leaves the mandate in place. This article will take a look at the case.

New York Vaccine mandate
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Background of the New York vaccine mandate

On April 9, 2019, the New York City commissioner of health issued an emergency order that people residing in certain areas of New York – the heart of the ongoing, large measles outbreak in the city – be vaccinated or face penalties. Initially, the penalties were criminal and civil fines of $1000.  

Unsurprisingly, anti-vaccine activists brought a court challenge against the order. The challenge made three general claims (pdf):

  1. The order is arbitrary and capricious because the outbreak it is responding to is not a big enough problem to justify such a strong measure, and because the city failed to use less aggressive means it had available to combat the outbreak.
  2. The order is inappropriate because MMR carries a risk of death or serious injury and because MMR includes vaccines against mumps and rubella, and there is no outbreak of those in NYC.
  3. The order violates the petitioners’ religious beliefs supported by legal religious exemptions from school immunization mandate under New York law, and that’s illegal.

The petitioners presented, among other things, an affirmation from attorney Robert Krakow and affidavits from five people in support of the claims that unvaccinated children are not a danger, that MMR is dangerous, and that there is no point for the measure. Tina Kimmel appears to be an “independent researcher,” and I have not been able to find any publications by her on PubMed.

Jane Orient, from the American Association of Physicians and Surgeons, has expressed anti-vaccine views in the past and appears not to have real scientific publications related to vaccines. Shira Miller, who runs the anti-vaccine organization Physicians for Informed Consent, has no expertise or publications in infectious diseases, virology, immunology, or other related fields.

Dr. Hendrieka Fitzpatrick is someone I have not encountered before, a family practitioner, and, at least from her practice website, someone who comes in with a less-than-supportive approach to vaccines. She has no publications on PubMed.

Dr. Richard Moskowitz has published with the anti-vaccine blog Age of Autism before and, apparently, published his own book about vaccines with the publishing house of Skyhorse, which has published clearly antivaccine books in the past. He has published other anti-vaccine articles. A mini-biography at the end of this article does not mention publication, and a link saying it is to a full CV does not lead to one. A PubMed search for Richard Moskowitz turned out one article, but I cannot be sure it is the correct Dr. Moskowitz. It is not about vaccines. It is a comment in support of homeopathy.

In short, none of the affidavits are from people with relevant professional credentials related to vaccines. Several have anti-vaccine links.

New York vaccine mandate
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The case

Before the hearing, two additional relevant things happened. First, the day before the hearing the Board of Health issued a resolution removing the criminal penalties from the order but leaving the civil ones (this is mentioned in the court’s decision). Second, on the day of the hearing, the city issued fines to three unvaccinated people

The procedure was, apparently, handled under a special streamlined procedure allowing for examination of the abuse of authority. In the words of the judge, the question was whether “the body or officer exceeded their authority or acted irrationally in an arbitrary, capricious or abusive manner.” The judge found that this was not the case, and dismissed the complaint completely, not just refusing to grant a preliminary injunction and setting up a time for hearings on the full case, but finding the complaint baseless.

The decision, correctly, focused mostly on the reasonableness of the measure. And the judge found it reasonable, because:

  1. The measles outbreak was serious, in spite of petitioners’ efforts to downplay it. The Judge explained: “…these diagnoses represent the most significant spike in incidences of measles in the United States in many years and that the Williamsburg section of Brooklyn is at its epicenter… through April 8, 2019, there have been 285 diagnoses during the current outbreak in the affected area, as compared to 85 diagnoses nationwide during all calendar year 2016. Adjusting for time and geography, this appears to constitute a dramatic spike, demanding immediate attention.”
  2. There is no good alternative. Petitioners in their complaint tried to argue that the City did not use a lesser measure like excluding children from school or quarantine. The decision did not go into that, but I would point out that the city did exclude unvaccinated children from school, and in fact, penalized several schools that did not comply with the exclusion. I would also be surprised if there has been no use of quarantine, though this information is not always made public. At any rate, the judge pointed out that when asked at oral argument what would be better and less restrictive petitioners’ counsel could not suggest a “demonstrably better, safer, or more efficient alternative.” So the judge dismissed it. I would add that it is completely unclear that quarantining families is less restrictive than attaching a $1,000 fine to not vaccinating. Quarantining is a step with a very severe impact on personal liberty.
  3. The judge rejected the claims of petitioners’ experts about MMR safety and effectiveness as “completely unsupported by studies, medical literature or other acceptable evidence.” Generally, the judge saw the affidavits as unsupported opinions. He described them as “little more than speculation.”
  4. Similarly, the judge rejected the argument that petitioners had religious objections to vaccinating as not supported, first and foremost – and correctly, in my view – because they were relevant to school attendance requirements in regular times, not to the public health emergency declaration and resulting orders. Further, even there they were problematic because they were “unsupported by an affidavit of a religious official … or other doctrinal documentation tending to support their opinion.” While requiring the support of an official is problematic, since the question is whether the person’s religious belief is sincere, not whether their official religion agrees with them,  the sentence in whole suggests that the judge’s point was that a general “taking the vaccine is against my religion” is not enough to demonstrate the sincerity needed under state law.
  5. Finally, the judge addressed petitioners’ criticism of “forced vaccination” by pointing out that the order does not require forced vaccination. It just attaches a fine to non-vaccinating. In response to petitioners’ claim that the order violates informed consent, the judge said “A fireman need not obtain the informed consent of the owner before extinguishing a house fire. Vaccination is known to extinguish the fire of contagion.” I do not think this was a good enough answer. I think the judge wanted to suggest that public health authorities can override informed consent to stop an emergency, and to some degree, that is longstanding doctrine. But in this case, at least arguably, the far-from-excessive fine imposed as a consequence for not vaccinating does not remove the need for consent – we are still not talking about forced vaccines. States can prevent a patient with epilepsy from driving if the person refuses to take seizure controlling medicine, even though driving can be a precondition to working and shopping in many areas in the United States, because choices come with consequences, and not all consequences negate consent. Arguably here, the consequence does not reach the level of removing consent.

In short, the judge found that there was a real public health emergency, that the measure was not excessive, and that petitioners failed to demonstrate unreasonableness or constitutional or legal violation.

The suit will no doubt be appealed. But the decision rests on fairly solid legal grounds, and the chances of an appeal, in my view, are not very good.

Update – 02 May 2019

The New York State Appellate Division upheld the mandate, pending additional procedures. Further information about this appeal will be posted as information becomes available. 

Notes

  1. In New York, the Supreme Court is the trial court – where many cases start; it is not the highest court in the state. 
Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law. 

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.

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