ALBANY — Despite Gov. Andrew M. Cuomo's concerns, state and federal courts repeatedly have upheld laws requiring children to be vaccinated before they can attend school, saying compulsory vaccinations don’t violate constitutional rights, a review of records shows.
Public health concerns historically have been found to “trump” freedom of speech and religion claims when it comes to vaccines, experts said — even though Cuomo has predicted it will be "a constitutional-legal question."
"There has never been a state [mandatory vaccination] law struck down because of the freedom of religion aspect of the First Amendment," said Kathleen Hoke, a University of Maryland law professor and regional director of the Network for Public Health Law.
"A century of jurisprudence continues to support mandatory vaccines in a variety of contexts," Hoke said.
At issue are measles outbreaks in Brooklyn and Rockland County and in 19 other states besides New York that have prompted public health emergency declarations. The outbreaks, occurring 19 years after measles was declared eliminated in the United States, are fueled by an anti-vaccination movement.
The federal Centers for Disease Control and Prevention has said 555 measles cases have been confirmed in 20 states this year — the second-highest number since the disease was declared eliminated in the U.S. in 2000.
In Albany, the issue has sparked a new push by New York state legislators to end all nonmedical exemptions to vaccination requirements. Sen. Brad Hoylman (D-Manhattan) and others said a provision in state law that allows exemptions based on religious beliefs is a “loophole that is being abused,” contributing to the outbreaks.
But Cuomo said in a radio interview April 9, “look, it’s a serious public health concern, but it’s also a serious First Amendment issue. It is going to be a constitutional-legal question.”
As Cuomo phrased the question: Does "government have the right to say you must vaccinate your child because I’m afraid your child can infect my child, even if you don’t want it done and even if it violates your religious beliefs?"
The answer appears to be yes, if your children want to attend school, according to a series of court decisions dating back more than 100 years.
In the 1905 case Jacobson v. Massachusetts, the U.S. Supreme Court upheld compulsory vaccinations for smallpox.
Seventeen years later, the Supreme Court affirmed a Texas statute requiring children to be immunized before entering school. The court determined it was, "within the police power of a state to provide for compulsory vaccination" and that such laws didn't violate Equal Protection guarantees under the U.S. Constitution.
Further, the court rejected the argument that guarantees of individual liberty in the Constitution take precedence over a state's judgment that mandatory vaccination was in the interest of the population as a whole.
In 1944, in Prince v. Massachusetts, the Supreme Court tackled the issues of religious or philosophical exemptions to vaccine mandates. It concluded religious freedom, “does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”
In 2015, the U.S. Second Circuit Court of Appeals in Manhattan affirmed New York public health law requiring children to be vaccinated, finding it did not violate the religious rights of parents whose unvaccinated children were barred from school.
The Second Circuit cited the Jacobson ruling as the guide in such cases, even more than a century after it was rendered, and said it had determined immunizations were “in the interest of the population as a whole.”
The Second Circuit also cited the Prince case in ruling the “right to practice religion freely does not include liberty to expose the community or the child to communicable disease.”
“In New York, the public health concerns have trumped these other concerns,” said Candace Gomez, a Garden City attorney who represents school districts.
“The courts have been generally more concerned about public health … primarily how it affects schools,” Gomez said.
“We don’t have the right to force anyone to vaccinate. But we do have the right to determine who goes to school,” said Assemb. Jeff Dinowitz (D-Bronx), who, with Hoylman, is sponsoring the bill that would eliminate nonmedical exemptions.
Asked to expand on its constitutional concerns given court history on immunizations, the Cuomo administration sent a statement by Chief Counsel Alphonso David.
"Government action mandating immunizations must balance health risks vs. constitutional freedoms. Courts are currently reviewing the legality of several municipal immunization orders, with one order recently struck down by a court,” David said.
David was referring to an emergency immunization order in Rockland County that wasn't actually struck down but put on hold by a local judge.
In Brooklyn, a judge refused to put on hold a public health emergency declared by Mayor Bill de Blasio April 9. The declaration requires unvaccinated individuals in Williamsburg, Brooklyn, home to a large Orthodox Jewish community, to receive the measles vaccine or face violations and possibly fines of $1,000.
David also noted, "nine pieces of legislation have been introduced in the New York State Legislature addressing immunizations, which we are currently reviewing,”
Almost all states allow a religious exemption to vaccine mandates, according to the National Conference of State Legislatures. California eliminated religious exemptions in 2015 — joining only West Virginia and Mississippi in restricting religious exemptions.
West Virginia's restriction has been challenged in court and upheld, Hoke said.
Time and again, lower courts reached back to the Jacobson and Prince rulings as the guiding cases.
"There actually aren’t a lot of SCOTUS cases in public health law, because the law is so well settled," said Hoke, using an acronym for Supreme Court of the United States.