Judge Rejects Challenge to NYC Measles Vaccination Order

BROOKLYN, N.Y. (CN) – A Brooklyn judge on Thursday swiftly tossed a lawsuit filed by anti-vaxxers who objected to an emergency vaccination order in the midst of a measles outbreak that has sickened hundreds in New York City.

“A fireman need not obtain the informed consent of the owner before extinguishing a house fire,” Judge Lawrence Knipel wrote in the seven-page ruling. “Vaccination is known to extinguish the fire of contagion.”

Robert J. Krakow, an attorney for parents opposing New York City’s mandatory measles vaccination order, speaks to reporters after oral arguments Thursday, April 18, 2019, as vaccination opponents stand in the background. (CNS Photo/Amanda Ottaway)

The order dismissed the case brought by five anonymous parents, represented by Manhattan attorney Robert J. Krakow, who filed their lawsuit Monday in Brooklyn Supreme Court claiming the city’s measures are extraordinary and unwarranted.

The vaccination order carries a possible $1,000 fine for noncompliance, and the city has already shut down several schools for lack of cooperation.

The parties appeared in court Thursday morning for oral arguments and the judge’s order came hours later. Knipel determined that the city’s decision to declare a public health emergency and issue vaccination orders in the midst of the measles outbreak was reasonable and supported by “largely uncontroverted” evidence.

As of Wednesday, city health officials had counted 329 measles cases since Sept. 30, 2018. That number was at 285 about a week ago, though the city does say the number of people getting their shots has gone up since the first public health emergency declaration and order April 9.

The city’s order requires people who live or work in four Brooklyn ZIP codes to receive the measles, mumps and rubella, or MMR, vaccine if they cannot show proof of immunity or provide medical exemptions. New York’s outbreak has been concentrated overwhelmingly in a close-knit Orthodox Jewish community.

The New York City Board of Health voted unanimously Wednesday to extend the vaccination order, which is expected to remain in place for as long as the outbreak continues.

“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,” Knipel wrote in his ruling. “It has already begun to spread to remote locations.”

The judge noted that 39 cases in Michigan had been traced to a person who’d traveled from Williamsburg.

Attorney Krakow asked Thursday morning during oral arguments for a “less restrictive remedy” for those who don’t want to vaccinate, such as quarantine.

Sherrill Kurland, who represented the city during the proceedings, objected to the suggestion. Such measures would not be effective for measles, she said, because the virus boasts a seven to 21-day incubation period — the time from exposure to illness — and can be contagious up to four days before a rash appears. And because the virus is airborne, Kurland added, it could also be transmitted within a building, such as through the air ducts.

Because Krakow did not provide specifics for what a “better, safer or more efficient alternative” solution might look like, Judge Knipel determined the anonymous parents had not proven the vaccination order was “arbitrary and capricious,” as they’d claimed.

Though Krakow insisted the virus had infected just a small percentage of the city’s population, Kurland countered that “the epidemic within those [four ZIP codes encompassed by the order] has not been contained…Those four areas remain a serious cause of concern.”

In his order, Knipel also noted that the parents’ religious objections were irrelevant in this case. Even though their children have religious exemptions to vaccination, those exemptions under the public health law apply only to whether they can attend school — not what they must do in a public health emergency.

Even if the exemptions did apply here, he said, the parents’ affidavits for them had not been backed up by any religious leaders, like rabbis. Krakow did note outside the courtroom after the hearing that two of the plaintiffs were not Jewish, and attendees in support of the parents represented a mix of religions.

The order does not include the potential for forced vaccination, and the city says it would not forcibly vaccinate, Knipel said.

The judge denied the request for an injunction and dismissed the case.

Krakow did not immediately respond Thursday afternoon to a request for comment on the order, but an appeal seems likely.

Both the Brooklyn petition and a similar but separate lawsuit upstate in Rockland County, which is also experiencing a measles outbreak, fall under the jurisdiction of the state’s Second Judicial Department’s Appellate Division.

Krakow did declare victory in the hallway after the proceedings this morning, though Knipel had not yet ruled, because the city in its latest order removed criminal penalties for non-vaccinated Brooklynites.

“I think it’s a major win,” Krakow said.

Thomas Merrill, general counsel for the city’s health department, said during arguments the Board of Health took the view that the new order would be enforced civilly.

“So you got what you wanted,” Knipel said to Krakow. “No criminal sanctions.”

Afterward, Krakow told reporters the change was good news, though he maintained the $1,000 fine is excessive.

“Part of it is resolved. No criminal penalties,” Krakow said. “To people who have a religious objection to vaccination, that is a very big thing.”

A New York City Law Department spokesperson cheered the ruling Thursday.

“We are pleased that the court recognized that measles presents a very real and present public health emergency and agreed that the emergency order is an appropriate response to the outbreak,” Nick Paolucci said in a statement.

Outside the courtroom after oral arguments this morning, anti-vaxxers wearing T-shirts and holding signs objected to what one called “forcible medical procedures at the hands of the state.” The protesters included a representative from a group called Physicians for Informed Consent.

In his order, Knipel also took the opportunity to laud the safety and importance of vaccines. He called one of the parents’ affidavits an “unsupported, bald faced opinion [that] cannot be credited by this court,” and concluded his order with a pointed quote.

“It is worthwhile to note that in enacting changes to [the public health law] in 1968 our legislature issued the following findings and declaration: ‘Among the truly great medical advances of this generation have been the development of proved methods of reducing the incidence of smallpox and measles, the once great cripplers. Public health statistics show clearly that immunization is effective and safe.’”

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