Suit Challenges Repeal Of New York's Religious Exemption From Vaccination

A class action lawsuit was filed yesterday in a New York state trial court seeking to enjoin the state's recently enacted repeal of the religious exemption from requirements for vaccination of school children. The complaint (full text) in F.F. v. State of New York, (Albany Cty. Sup. Ct., filed 7/10/2019), was filed on behalf of 55 families of various religions who previously were granted religious exemptions.  A number of plaintiffs were families sending their children year-around to Orthodox Jewish yeshivas. The complaint alleges that the exemption repeal was enacted based on active hostility to freedom of religion and is not supported by empirical evidence that unvaccinated minors holding religious exemptions played any part in the recent spread of measles in the state. The complaint went on to allege:

the process by which the New York State Legislature adopted the repeal belies any sense that a public health emergency justified this action; that the repeal violates the Equal Protection Clause because the legislature has concurrently retained the medical exemption and the religious exemption for students enrolled in higher education and allowed unvaccinated staff in both public and private schools in New York .... [F]inally the Court should find ... that the repeal compels speech and acts repugnant to plaintiffs’ religious beliefs....

Plaintiffs also filed a brief (full text) in support of their request for a temporary restraining order.  Albany Times Union reports on the lawsuit. Children's Health Defense issued a press release with links to additional pleadings in the case.

Hospital Settles EEOC Suit For Failure To Accommodate Anti-Vaccine Beliefs of Employee

EEOC announced last week that Memorial Healthcare, an Owosso, Michigan hospital, has settled a suit alleging failure to reasonably accommodate an employee's religious beliefs, in violation of Title VII of the 1964 Civil Rights Act. According to the Commission:

Memorial refused to accommodate the sincerely held religious requirement of the transcriptionist, whose Christian beliefs require her to forgo inoculations. The transcriptionist offered to wear a mask during flu season. This was an acceptable alternative under hospital policy for those with medical problems with the flu shot, but Memorial refused to extend it to her. It then rescinded her offer of employment....

Under the consent decree settling the suit, Memorial confirms that it now permits those with religious objections to wear masks in lieu of having a flu vaccine. The hospital will also train managerial staff participating in the accommodation process on the religious accommodation policy. In addition, the transcriptionist will receive $34,418 in back pay, along with $20,000 in compensatory damages and $20,000 in punitive damages.

[Thanks to Tom Rutledge for the lead.]

Parents Ask Court To Bar Publication of Data On Vaccination Rates In Individual Schools

Suit was filed last week in a Connecticut state trial court to prohibit the state Department of Public Health from continuing to post information on vaccination rates in individual schools. The complaint (full text) in Festa v. State of Connecticut Department of Public Health, (CT Super. Ct., filed 6/12/2019), says that publication of the information has led to "hateful and vitriolic statements regarding nonvaccinated students and parents" appearing on the Internet, creating mental and emotional distress to plaintiffs. Plaintiffs are parents of a student in a private school for children with autism and have claimed a religious exemption from vaccination.  Connecticut Mirror reports on the lawsuit.

New York Ends Religious Exemption From Vaccination Requirements

Yesterday New York's Gov. Andrew Cuomo signed into law A2371 (full text) repealing Pub. Health Law Sec. 2164, subd. 9 which has provided a religious exemption from mandatory vaccination requirements. In a press release announcing Cuomo's signing of the bill, the Governor's office said in part:

The United States is currently experiencing the worst outbreak of measles in more than 25 years, with outbreaks in pockets of New York primarily driving the crisis. As a result of non-medical vaccination exemptions, many communities across New York have unacceptably low rates of vaccination, and those unvaccinated children can often attend school where they may spread the disease to other unvaccinated students. This new law will help protect the public amid this ongoing outbreak....

Governor Cuomo said. "While I understand and respect freedom of religion, our first job is to protect the public health and by signing this measure into law, we will help prevent further transmissions and stop this outbreak right in its tracks."

USA Herald reports on the new law.

Plaintiff Challenging Vaccination Requirements Contracts Chicken Pox

A high school senior who recently lost his attempt to enjoin enforcement of steps taken by a local Kentucky health department to control an outbreak of chicken pox at a Catholic high school has now come down with chicken pox, according to the Cincinnati Enquirer. Jerome Kunkel, who objects on religious grounds to the vaccine because it was originally produced using cells from an aborted fetus, had a religious exemption from vaccination requirements, as did most of his classmates at a conservative Catholic high school. Kunkel's lawyer said that about half of his clients have contracted the disease. He told them that contracting chicken pox, which creates immunity, was the quickest way to resolve their dispute with the county's extra-curricular and school attendance bans on student who are not immune.

Latest NYC Emergency Measles Order Upheld

In C.F. v. New York City Department of Health and Mental Hygiene, 2019 NYLJ LEXIS 1419 (Kings Cty. Sup. Ct., April 3, 2019), a New York state trial court judge has upheld the latest version of New York City's declaration of a public health emergency to combat the measles outbreak.  The court said in part:

The pivotal question posed for this court's determination is whether Respondent Commissioner has a rational, non-pretextual basis for declaring a public health emergency and issuing the attendant orders challenged herein. The evidence in this regard is largely uncontroverted. The unvarnished truth is that 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. It has already begun to spread to remote locations....

The court went on to reject petitioner's scientific, religious and moral objections to the orders issued by the Department of Health:

Petitioners' medical experts opine, variously, that the MMR vaccine is ineffective, is of greater risk than non-vaccination and that the MMR vaccine itself propagates the very disease it was designed to prevent. These contentions are completely unsupported by studies, medical literature or other acceptable evidence....

The religious objection exemption contained in Public Health Law 2164(a) applies only to the certificate of immunization required to admit a child to school, not to remedies attendant upon declaration of a public health emergency. Even if it did apply, the affidavits ... are entirely unsupported by an affidavit of a religious official (priest, rabbi, etc.) or other doctrinal documentation tending to support their opinion....

Petitioners have raised various moral objections seemingly centered around a claim that the order(s) would compel forced vaccination. An examination of the orders indicates, and respondents concede that they do not require forcible vaccination. Accordingly, this court need not address the issue of forcible vaccination....

Emergency Order Requiring Measels Vaccination Upheld

In C.F. v. New York City Department of Health, (Kings Cty. Sup. Ct., April 18, 2019), a New York state trial court judge rejected challenges to the recent emergency order by the New York City Health Department requiring everyone living or working in zip codes comprising the Williamsburg section of Brooklyn to be vaccinated against measles unless they already have immunity or are medically exempt. The court said in part:

The pivotal question posed for this court's determination is whether Respondent Commissioner has a rational, non-pretextual basis for declaring a public health emergency.... The unvamished truth is that 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....

The religious objection exemption contained in Public Health Law $2 164(a) applies only to the certificate of immunization required to admit a child to school, not to remedies attendant upon declaration of a public health emergency....

Petitioner raise the issue of informed consent.... 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.

Rockland County Issues New Orders To Combat Measles Spread

Rockland County, New York health authorities are taking new steps to combat the spread of measles in the county.  As previously reported, on April 5 a New York state trial court judge held that the health department's declaration of a state of emergency was invalid. That decision is being appealed. Yesterday the County announced two new Orders by the Commissioner of Health, relying on different legal authority than the basis of the Order that was struck down.

The first new Order (full text) provides that anyone diagnosed with measles, or exposed to someone diagnosed with measles, must be excluded as a public health nuisance from places of public assembly for up to 21 days. Places of public assembly are defined broadly and include the homes of other persons.

The second new order requires schools in two zip code areas to file a notarized statement identifying unvaccinated students who, as required, have been excluded from school. Orangetown Daily Voice reports on these developments.

Parents Sue Over NY Vaccination Order; One Child Care Facility Ordered Closed

Yesterday five mothers of children who claim religious exemptions from vaccination requirements filed suit in a New York state trial court challenging last week's emergency order by the New York City Health Department requiring everyone living or working in zip codes comprising the Williamsburg section of Brooklyn to be vaccinated against measles unless they already have immunity or are medically exempt. (See prior posting.)  The complaint (full text) in C.F. v. New York City Department of Health and Mental Hygiene, (Kings Cty. Sup. Ct., filed 4/15/2019) contends:

There is insufficient evidence of a measles epidemic or dangerous outbreak to justify the respondents’ extraordinary measures, including forced vaccination. The Orders are, therefore, arbitrary, capricious, contrary to law and in violation of petitioners’ rights under the United States Constitution and New York State law.

The complaint also contends that the Order ignores the risk of harm from compulsory vaccination.  Courthouse News Service reports on the lawsuit.

Meanwhile yesterday New York officials ordered a child care center in Williamsburg closed for failing to provide the Health Department access to medical and attendance records showing that the school is excluding unvaccinated children. (New York Times; Yeshiva World News).

Anti-Vax Movement Targets Ultra Orthodox Jews In New York

The New York Times in an article posted yesterday reports on the ways in which the anti-vaccination movement, particularly an organization known as Parents Educating and Advocating for Children's Health ("Peach"), is targeting ultra-Orthodox Jews in New York:

Peach’s handbook — with letters signed by rabbis and sections like “Halachic Points of Interest” — has become one of the main vehicles for misinformation among ultra-Orthodox groups, including Hasidim. Its message is being shared on hotlines and in group text messages.....

The majority of ultra-Orthodox rabbis said they ... urged vaccination, citing religious scripture about protecting one’s health and the health of others.

But all of that has not been enough to persuade vaccine skeptics....

Some Hasidim have said that longstanding tension between members of the ultra-Orthodox community and the government have made them wary of officials’ efforts to contain the outbreak.

The past persecution of the Jewish people is still a factor, they said. And more recently, quarrels with secular leaders over a circumcision ritual that has transmitted fatal herpes infections to infants and the government’s oversight of ultra-Orthodox Jewish private schools known as yeshivas have only soured relations.

Mandatory Measles Vaccinations Ordered In Brooklyn Neighborhood

The New York City Commissioner of Health yesterday declared a public health emergency and ordered everyone who lives, works or resides in zip codes comprising the Williamsburg section of Brooklyn to be vaccinated against measles unless they already have immunity or are medically exempt (full text of order).  NBC News reports on the order.  The epicenter of the measles outbreak is in the ultra-Orthodox community of Williamsburg. Mayor Bill DeBlasio announced the order. According to a health department release:

Under the mandatory vaccinations, members of the City’s Department of Health and Mental Hygiene will check the vaccination records of any individual who may have been in contact with infected patients. Those who have not received the MMR vaccine or do not have evidence of immunity may be given a violation and could be fined $1,000.

This emergency declaration comes a day after the city health department ordered yeshivas in Brooklyn to exclude all unvaccinated students from classes, or else face possible closure.

State of Emergency To Combat Measles Ended By Court

As previously reported, in late March Rockland County, New York declared a state of emergency to combat a growing measles outbreak.  It banned any person under 18 who has not been vaccinated for measles from all places of public assembly. On April 3, a suit was filed in state court challenging the State of Emergency Declaration. The complaint (full text) in Doe v. Day, (Rockland Cty Sup. Ct., filed 4/3/2019), contended among other things that the Declaration will bar those with religious exemptions from vaccination requirements from celebrating Passover or Easter at their houses of worship. On Friday, a trial court judge agreed with plaintiffs.  Rockland/ Westchester Journal News reports in part:

A judge Friday halted Rockland County Executive Ed Day's emergency declaration barring children who are unvaccinated against measles from schools, places of worship and other public areas.

Acting state Supreme Court Judge Rolf Thorsen's injunction stated that the 166 cases cited by the county since the measles outbreak began last October did not rise to the level of an epidemic or constitute a disaster. Day's reliance on executive law in issuing the emergency declaration "may have been misplaced," the decision stated.

UPDATE: Here is the full text of the opinion in W.D. v. Rockland County,   (Rockland Cty. Sup. Ct., April 5, 2019) issuing a preliminary injunction against the emergency declaration. [Thanks to Eugene Volokh for the opinion.]

Parents Failed To Show Sincere Religious Anti-Vaccine Belief

In an administrative decision handed down last month, the New York State Education Department affirmed the denial of a religious exemption from state immunization requirements because parents seeking the exemption failed to show they had a sincerely-held religious belief in opposition to immunization. In In re Appeal of M.W., (NYSED, March 20, 2019), the Commissioner held that the general statements submitted by petitioners regarding their religious beliefs were insufficient to show a sincerely-held religious belief. The students and their family were members of the Temple of the Inner Flame. They argued:

Due to the spiritual beliefs of my families [sic] religion, [the students] cannot receive any medical vaccines.  They are a foreign substance that is not naturally found in the body.  We consider our bodies a temple of God that should be treated as such.

WKBW News reports on the decision.

Court Refuses To Enjoin Activity Ban Imposed On Non-Vaccinated Students

In Kunkel v. NKY Independent Health Department, (KY Cir. Ct., April 2, 2019), a Kentucky state trial court refused to grant a preliminary injunction, thereby upholding the steps taken by a local health department to control an outbreak of chicken pox at a Catholic high school.  The health department first imposed an extra-curricular activity ban, and subsequently an attendance ban for students who were not vaccinated or otherwise immune.  Jerome Kunkel objected on religious grounds to being vaccinated for chicken pox because the vaccine originated from aborted fetal cells. The court noted that the state is not requiring Kunkel to take the vaccination, but is merely excluding him from school as a means of controlling the outbreak. Fox 19 News reports on the decision.

UPDATE: On June 26, 2019, according to the NKY Health Department, the Kentucky Court of Appeals upheld the trial court's decision.

Rockland County Declares State of Emergency In Measles Outbreak

Rockland County, New York, which is battling a measles outbreak, has issued a 30-day county-wide Sate of Emergency Declaration (full text) banning any person under 18 who has not been vaccinated for measles from all places of public assembly. The Declaration defines the scope of the ban:

A place of public assembly shall be a place where more than 10 persons are intended to congregate for purposes such as civic, governmental, social, or religious functions, or for recreation or shopping, or for food or drink consumption, or awaiting transportation, or for daycare or educational purposes, or for medical treatment. A place of public assembly shall also include public transportation vehicles, including but not limited to, publicly or privately owned buses or trains, but does not include taxi or livery vehicles.

The county previously excluded all unvaccinated minors for schools.  (See prior posting.) Yesterday Rockland County issued a press release announcing the action. Gizmodo reporting on the ban says in part:

In the case of the Rockland outbreak, it’s thought the original carriers caught measles while visiting Israel. According to health officials, more than 80 percent of local cases have occurred among the unvaccinated. These cases have been concentrated among segments of the Orthodox Jewish community.

Catholic Student Who Objects To Chicken Pox Vaccination Requirement Sues

ABC News reports on a state court lawsuit filed last week against the Northern Kentucky Health Department by a high school student who has religious objections to receiving the chicken pox vaccine. There have been 32 cases of chicken pox since February at Our Lady of the Sacred Heart Elementary School.  To stop the spread, health officials have, among other things, ordered the related Assumption Academy to bar all students who are not vaccinated or otherwise immune from the disease from participating in extra-curricular activities.  Subsequently health officials ordered the schools to exclude all non-immune students entirely from school until the spread ends, and to end other outside activities until then.  Eighteen year old Jerome Kunkel and his family, who are conservative Catholics, object to the vaccine because it was originally developed in the 1960's using cell lines from two aborted fetuses.

Suit Challenges Vaccination Order

The Rockland Westchester Journal News reports that a federal court lawsuit has been filed by parents of 44 students who attend Green Meadow Waldorf School in Chestnut Ridge, New York challenging the Rockland County Health Commissioner's order excluding unvaccinated children from schools. According to the paper:

The lawsuit states that Commissioner Dr. Patricia Schnabel Ruppert's order, imposed during the county's continuing measles outbreak, violates the families' religious objections to vaccinations and is unnecessary because the cases have been largely confined to insular Hasidic Jewish communities.

UPDATE: On March 12, a federal judge denied a temporary injunction that would have allowed the 44 students to return to classes. (Rockland Westchester Journal News).

Immunization Order Did Not Violate Mother's Free Exercise Rights

In In re Julie C.and Anthony Price, 2019 Cal. App. Unpub. LEXIS 935 (CA App., Feb. 6, 2019), a California state appellate court held that a wife's free exercise rights were not violated by a court order in a divorce proceeding requiring immunization of her children.  In 2016, California repealed the personal belief exemption from immunization requirements for school children. The court ordered the immunizations on motion of the husband, finding that immunization was in the best interest of the children. (Corrected. Earlier version referred to wrong court).

Objection To Immunization Was Not A Religious Belief

In Potter v. St. Joseph's Medical Center, (MN App., , Dec. 24, 2018), a Minnesota appellate court held, in a case involving the denial of unemployment benefits, that a claimant's refusal to obtain an influenza shot "was driven by a personal, secular belief," not a religious one.  The court said in part:

Potter's assertion that her faith requires that she not inject herself with impurities is undercut by her own rationale. Potter stated that if the flu shot was scientifically proven to be effective she "probably would" receive it. It follows that Potter is unwilling to inject what she considers scientifically ineffective impurities but is willing to inject what she considers scientifically effective impurities. This supports the respondents' assertion that Potter's beliefs are not sincerely held religious beliefs, but, rather, "her objection was based on her medical and scientific views, cloaked under the guise of religion."

California Appeals Court OK's Repeal of Belief Exemption To Immunization Requirements

In Love v. Department of Education, (CA App., Nov. 20, 2018), a California state appellate court rejected state constitutional challenges to a California law that repealed the personal belief exemption to the state's immunization requirements for school children.  Saying that "Plaintiffs’ arguments are strong on hyperbole and scant on authority," the court rejected claims that the repeal violates the constitutional right to attend school, substantive due process, or rights of privacy or free exercise of religion.