Disabled Kids Opposing NY Vaccine Mandate Served Defeat

BROOKLYN, N.Y. (CN) – Anti-vax parents who tried to circumvent New York’s vaccine mandate by alleging disability discrimination failed Monday to secure a federal injunction.

Girls play in the schoolyard of a Williamsburg yeshiva on April 9, 2019. Responding to a massive measles outbreak a day earlier, New York City’s health department ordered all ultra-Orthodox Jewish schools in the Brooklyn enclave to exclude unvaccinated students from classes. The health department said any yeshiva that does not comply will face fines and possible closure. (AP Photo/Mark Lennihan)

New York already offers a medical exemption to children whose physicians will certify that immunization may harm their health, but the children in this case have been foregoing vaccinations by citing unspecified religious beliefs.

Last month their parents invoked the Individuals with Disabilities Education Act, a federal law that says children with disabilities must have access to the “least restrictive” education environment possible, after the state repealed the religious exemption to crack down on what has been the biggest U.S. measles outbreak in nearly two decades. 

While the merits of the case are still unsettled, U.S. District Judge Allyne Ross on Monday turned down the parents’ demand for an injunction that would let their children return to the school of their choice in September.

“Plaintiffs have made the affirmative choice not to vaccinate their children for non-medical reasons, thus opting out of public, private, and parochial schools in New York state,” Ross wrote. 

Kim Mack Rosenberg, an attorney for the families, said injunctive relief would have been a boon to “New York’s most vulnerable students with disabilities.”

In the lawsuit, Rosenberg noted that his clients’ children have a range of disabilities and learning challenges including autism, Down syndrome and speech impairments. Such students are afforded special education services in traditional schools, and their parents say are not equipped to replicate those resources if forced to home-school.

“We are carefully analyzing the court’s decision and assessing next steps,” Rosenberg said.

New York Attorney General Letitia James applauded Monday’s ruling.

“Vaccines ensure the health and safety of our children, our families, and our communities,” she said. “This law will help protect New Yorkers from experiencing any additional public health crises, which is why we vigorously defended it. We are pleased with yesterday’s decision, and look forward to hearing favorable decisions on the other pending cases.”

Monday’s ruling by Ross notes that none of the plaintiffs said their children had, needed or would qualify for a medical vaccine exemption.

“Though plaintiffs disagree with the legislature’s judgment, New York was entitled to determine that the religious exemption was endangering all students, and that the elimination of the exemption was the best way to protect the needs of all children — including children with disabilities,” Ross wrote.

Earlier in a heading of her 26-page ruling, Ross said “mandatory vaccination laws are a permissible use of state police power, and states are free to pass laws that mandate compliance with immunization requirements.”

Ross also cited Supreme Court precedent that says states “may impose certain requirements on its constituents without offending the Constitution” if a disease is believed to threaten residents’ safety.

“The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death,” the Supreme Court ruled in the 1944 decision Prince v. Massachusetts.

Another challenge to New York’s new vaccine requirements is pending in state court. While the federal case alleges disability discrimination, the state case says hinges on religious freedoms. Albany County Supreme Court Justice Denise Hartman is expected to rule on this challenge before on the first day of school on Sept. 5.

Ross in her ruling noted that the U.S. Court of Appeals for the Second Circuit upheld New York’s vaccination mandate for children going to school in 2015. 

Science shows vaccines are safe and effective. The CDC maintains the measles-mumps-rubella vaccine is “very safe” with only a “very small risk” of unusual, non-life-threatening side effects and “extremely rare” cases of serious allergic reactions.

Judges have largely swatted legal challenges to New York’s vaccination crackdown this year.  

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