Somebody has to be the responsible adult - The Anti-Vaxxers Just Suffered A Major Legal Defeat 41,253

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Three New York families fought against a policy barring non-immunized children from public schools during a disease outbreak, and lost. This is a major setback for the anti-vaccine cause, and an important precedent for public health.

New York state law requires kids to receive vaccinations before attending schools. Exemptions are available for "children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary." And, although similar exemptions exist in other states, New York's approach is among the most rigorous — it requires documentation to support parental claims of "genuine and sincere" anti-vaccination beliefs, and school officials have the final say on whether to reject, accept or withdraw this exemption.

Keeping a Distance

Current NY regulations, known as "social distancing," state that:

In the event of an outbreak of diphtheria, polio, measles, rubella, mumps in a school, the commissioner, may order the appropriate school officials to exclude from attendance all students without documentation of immunity… including those who have been excused from immunization.

The objective of the regulation is not only to protect the health of the non-immunized children, but to reduce the risk that they could become carriers, spreading the diseases further. Among the 25 people who contracted measles in New York City between February and April this year, two were school-age children who weren't vaccinated because of parental refusal.  

The students can return to school when an outbreak subsides. But two of the families who filed the lawsuit claim the regulation — which has kept their children at home for as long as a month at a time — is a violation of both their First Amendment right to religious freedom and their Fourteenth Amendment to equal protection under the law.

According to the New York Times, the third plaintiff, Dina Check, sued on slightly different grounds, claiming that the city had improperly denied her 7-year-old daughter a religious exemption:

She said the city rejected her religious exemption after it had denied her a medical exemption, sowing doubts among administrators about the authenticity of her religious opposition. But Ms. Check said the request for a medical exemption had been mistakenly submitted by a school nurse without her consent.

Ms. Check said she rejected vaccination after her daughter was "intoxicated" by a few shots during infancy, which she said caused an onslaught of food and milk allergies, rashes and infections. Combined with a religious revelation she had during the difficult pregnancy, she said, the experience

turned her away from medicine. Now she uses holistic treatments.

"Disease is pestilence," Ms. Check said, "and pestilence is from the devil. The devil is germs and disease, which is cancer and any of those things that can take you down. But if you trust in the Lord, these things cannot come near you."

Laying Down the Law

Federal Judge William F. Kuntz II ruled against the families, citing legal precedents that include a 1905 Supreme Court ruling that permitted the state of Massachusetts to impose a $5 fine on a man named Henning Jacobson, who had refused to receive the smallpox vaccine, claiming that vaccinations had made him and his children ill.

As Kuntz wrote in his decision:

Plaintiffs argue that the vaccination program at issue denies their children the constitutional right to free exercise of religion, but not only has the Supreme Court strongly suggested that religious objectors are not constitutionally exempt from vaccinations... courts in this Eastern District have resolutely found there is no such constitutional exemption. In Caviezel v. Great Neck Public Schools, under nearly identical facts and citing Jacobson, the court held that "the free exercise clause of the First Amendment does not provide a right for religious objectors to be exempt from New York's compulsory inoculation law."

Plaintiffs also claim that Defendants are violating their rights accruing under the Fourteenth Amendment's Equal Protection Clause. However, Plaintiffs have not asserted any facts tending to show that Defendants favored any religion over another, or that Plaintiffs are part of any protected class. In short, Plaintiffs fail to allege the facts necessary to state a claim upon which relief can be granted under the Equal Protection Clause, and thus their claims alleged thereunder are dismissed.

Since variations of this regulation exist in 47 other states, it is likely that we'll see similar court cases in the near future. However, as one legal expert notes: "This case affirms the long-held doctrine that the state can draw upon its police powers in ways that may override individual religious and/or parental choices, and may somewhat burden individuals, to uphold our responsibility as a society (not as a collection of individuals) to use reasonable measures to protect against infectious disease outbreaks."

Anti Vaxxers Lose New York Court Battle

June 25, 2014 | by Janet Fang

Photo credit: A 1962 photograph of a boy in Atlanta receiving a measles vaccination / Centers for Disease Control and Prevention (CDC)

 

Three families in New York claimed that their right to free exercise of religion was violated when their unimmunized kids were barred from school because of the state’s vaccination practices. Their case was brought before the Federal District Court in Brooklyn. They lost. 

According to New York state law, children must be vaccinated before attending school. There are exemptions: if immunization is detrimental to the child’s health or if the guardian holds “genuine and sincere religious beliefs which are contrary.” Supporting documentation is required, and in the latter case, the school can decide to reject the request. 

However, in the event of an outbreak of a vaccine-preventable disease -- we’re talking diphtheria, polio, measles, mumps, rubella -- in a school, city officials may exclude the attendance of unimmunized students, regardless of whether they’re in the process of being vaccinated or if they’re exempt. It’s the responsibility of the school to maintain a list of susceptible students, who can return when the risk abates. This is called “social distancing,” and effective July 1st, new school attendance regulations will expand vaccine-preventable illnesses to include chickenpox, whooping cough, tetanus, Hib, pneumococcal disease, and hepatitis B. 

So, that brings us back to Phillips v. City of New York. Earlier this month, Judge William F. Kuntz II cited a 109-year-old Supreme Court ruling that gives states broad power in public health matters when he ruled against the three families, the New York Times reports. In 1905, a Massachusetts man disobeyed an order to be vaccinated during a smallpox outbreak and was fined $5. Here’s an excerpt from the judge's ruling (which is a fascinating read): 

Plaintiffs argue that the vaccination program at issue denies their children the constitutional right to free exercise of religion, but not only has the Supreme Court strongly suggested that religious objectors are not constitutionally exempt from vaccinations, Jacobson v. Commonw. of Mass., 197 U.S. 11, 35-39 (1905), courts in this Eastern District have resolutely found there is no such constitutional exemption.

Two of the families in the lawsuit (who have received religious exemptions) said the city’s policy amounted to a violation of their First Amendment right to religious freedom, among other claims. Their children had been kept from school, sometimes for a month at a time, when other students had, for instance, chickenpox. 

The third plaintiff said the city denied her child a religious exemption, after her medical exemption was (apparently mistakenly submitted and hence) denied. Her daughter was then home-schooled and later accepted into a private school without being vaccinated. (While the policies cover both public and private schools, the latter have more autonomy with exclusions.)

In New York state, the average religious exemption rate rose over the last decade, the Times reports, from 0.23 percent to 0.45 percent. City schools granted 3,535 religious exemptions in the 2012-2013 school year. Among the 25 measles cases in the city between February and April this year, two of them were school-age children whose parents refused vaccinations. One of children was home-schooled, but had a sibling who was granted a religious exemption. When the child contracted measles, the city barred the sibling from school.