In a case with possible implications for the coronavirus vaccine program now underway in New York and just about everywhere else, a state appeals court has upheld a ruling against a group of Orthodox Jewish parents who had challenged an April 2019 mandatory MMR vaccination mandate targeting certain Williamsburg zip codes during the measles outbreak then alarming the city.
In C.F. v. New York City Dept. of Health & Mental Hygiene (the plaintiffs’ names have not been made public), the Appellate Division of the Second Department determined that the order was within the Board of Health’s authority and discretion to impose, and that because of the severe measles outbreak at the time, “the imposition of a temporary mandatory immunization requirement in the affected area was a response to a dire necessity, reasonably calculated to alleviate the crisis condition.”
The plaintiffs had claimed a religious exemption under a state provision which was repealed shortly thereafter in June 2019, and they had also provided medical affidavits opining that the MMR vaccine carries risks greater than the disease itself and that recently vaccinated people pose a greater threat to public health because they shed the virus. The city’s health department had opposed these claims with their own expert medical affidavits assuring the safety and benefit of widespread measles vaccination.
The Court likewise rejected the plaintiffs’ constitutional arguments, finding the vaccination requirement in this instance a neutral law of general applicability. Significantly, the Court noted that even if analyzed under the “strict scrutiny” standard applied in certain religious freedom contexts, the order would pass muster because it “was supported by a compelling state interest and was narrowly tailored to apply only to a specific, confined geographical area with a high incidence of disease and only applied for a limited period of time.” In addition, the Court dismissed the plaintiffs’ claims that the mandate interfered with their parental rights.
The potential relevance of C.F. v. New York City Dept. of Health & Mental Hygiene to future and indeed currently developing policy regarding coronavirus vaccines is not merely theoretical. By the time this lawsuit case had come to trial, the Board of Health’s original order – which included criminal penalties for violations – had expired, and the New York State Supreme Court therefore dismissed the complaint as moot. Appellate courts do not generally entertain disputes which have become moot, but here the Second Department determined that an exception to the mootness doctrine applied: Namely, that the case presented “a significant issue which is likely to recur and evade review.”
“As we consider this case, we are very much aware of the COVID-19 pandemic which has caused so much death, severe illness, and economic dislocation in our State and nation,” the Court wrote. “We are aware too of the public discourse on the development and approval of a vaccine and the concerns expressed as to the willingness of the public to accept the vaccine voluntarily. Second, where a public health crisis leads the public health authorities to mandate the administration of a vaccine, effective appellate review may be evaded where the crisis is abated within a short time.” The Court framed as “different and novel” the issue of whether the Board of Health, in the midst of a growing contagion, may mandate the vaccination of those who live, work, or attend school within the affected area. As noted above, it answered this question strongly in the affirmative.
The particular local, state, and national policies that will accompany the Covid vaccination campaign have yet to unfold, but this challenge to an MMR vaccine mandate makes clear that, at least within the Second Department (which hears appeals from Kings, Richmond, Queens, Nassau and Suffolk, Westchester, Rockland, and other counties with large Orthodox populations), authorities could impose a compulsory framework that could survive legal challenge. What recourse would then remain for skeptics, fence-sitters, and conscientious objectors? The Court in C.F. offered this answer, which may or may not obtain in the corona era: “Individuals within the affected area could accept the vaccine, pay a fine, seek a medical exemption, or temporarily relocate out of the narrowly drawn impacted area.”