Potential discrimination in NYC's measles public health emergency order

On April 9, 2019, New York City Health Commissioner Oxiris Barbot — backed by Mayor Bill de Blasio — declared a public health emergency requiring measles vaccinations for all residents living in four specific zip codes in Brooklyn.

Persons with valid medical reasons would be exempt from the order. Just days earlier, on April 5, a state judge invalidated a Rockland County declaration that banned unvaccinated children from public places.

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Emergency declarations in New York and other jurisdictions are responding to the worst series of outbreaks of highly-contagious measles in the United States in decades. Within the past six months, New York has reported several hundred measles cases mostly among unvaccinated individuals. Reaching “herd immunity” for measles requires a 95 percent vaccination rate.

The surge in measles, and other childhood diseases, is directly attributable to low vaccination rates often clustered in particular communities that are hesitant to have children vaccinated. Measles was eliminated from the United States in 2000.

False and misleading messaging emanating from organized anti-vaccination campaigns and social media platforms heightens unwarranted fears about the MMR and other childhood vaccines. A few religious communities, including Orthodox Jews, have resisted outside interference, exhibiting distrust of government.

New York City’s health department declared a public health emergency to protect children from a serious infectious disease. Vulnerable children, such as young infants and immune-compromised individuals are most at risk.

Every state requires vaccines as a condition of school entry, but many grant religious and philosophical exemptions. When existing public health measures fall short and outbreaks are out of control, health agencies are authorized to invoke emergency powers. NYC’s order imposes a $1,000 fine for failure to be vaccinated.  

Fining individuals for vaccine refusals is rare in modern America. Yet, mandatory vaccinations were common in the early 20th century. In 1905, the U.S. Supreme Court in Jacobson v. Massachusetts upheld a Cambridge (MA) smallpox vaccination mandate enforced by a small fine. Since that time, federal and state courts have repeatedly upheld the Court’s reasoning in Jacobson. In 1991, Philadelphia experienced a measles outbreak within an insular religious community. Health authorities obtained a court order requiring parents to vaccinate their children.  

Importantly, NYC’s order does not require vaccination through physical force. Restraining and vaccinating autonomous persons violate personal autonomy and are arguably unconstitutional. However, imposing a fine is clearly lawful under the Jacobson doctrine.

NYC’s order also aligns with inherent limitations of religious freedoms. All religions are required to abide by generally-applicable public health rules. In fact, courts have upheld state laws that entirely remove religious exemptions. An inherent part of our social compact is that everyone must contribute to the common good by not jeopardizing the health of others.

Requiring safe, effective vaccinations is well within the power and duty of government. Vaccines are so effective that many people cannot recall the devastating impacts of measles, mumps and other childhood diseases. Vaccine risks are extraordinarily low, but the infectious diseases they prevent can cause substantial harm, or deaths in rare cases.

We do have concerns with the ethics and constitutionality of NYC’s decision to apply its mandate solely within four zip codes. Targeting specific populations opens the city to the claim of unfair discrimination. At first glance, it might make sense to target only specific geographic areas at the epicenter of measles cases. Over-reaching in relation to public health mandates in some instances can be legally problematic.

However, it is impossible to localize a fast spreading infectious disease likes measles in dense urban areas. It takes under 30 minutes on the subway for someone to travel from Queens to Manhattan, where they may play in a park surrounded by other children. Why apply a mandatory public health power only in certain “hot zones” that have arisen where thousands more may be at risk? The logic of higher vaccination rates applies equally throughout the City.

Orthodox Jewish communities within these zip codes may well feel they are being blamed and targeted, provoking an unnecessary backlash against vaccination. In a 1900 case, Jew Ho v. Williamson, a federal district court struck down a quarantine order encircling several blocks in Chinatown, San Francisco. Famously, the court observed that singling out persons of Chinese descent for quarantine was “with an evil eye and unequal hand.”

We do not doubt the sincerity of the NYC health commissioner attempting to tamp down measles, but the order may be challenged as unequal and arguably unfair. Attorneys are already purportedly preparing to file a complaint contesting NYC’s order. The commissioner could have lawfully applied the order to all city residents fairly and equally without limiting it to specific geographic areas or religious communities.

Lawrence O. Gostin is the Founding O’Neill Chair and University professor and director of the World Health Organization Center on global health law, Georgetown University Law Center, Washington, DC. James G. Hodge, Jr., is professor and director, center for public health law and policy, Sandra Day O’Connor College of Law, Arizona State University, Phoenix, Ariz.