MANHATTAN (CN) — Parents took to the Second Circuit on Tuesday to argue that an order that kept their unvaccinated kids out of school for nearly a month amid a measles outbreak violated their religious freedoms.
Before Covid-19 hit New York, a measles outbreak ripped through the state in 2018 and 2019, resulting in the state repealing medical and religious exemptions for vaccines in schools.
Following an uptick in cases in 2018, Rockland County issued an exclusion order to schools to prohibit unvaccinated students, unless given a proper medical exemption, from attending school for 21 days in an effort to slow the spread.
Parents of students at one of the affected schools, Green Meadow Waldorf School, sued Rockland County in 2019, alleging their First Amendment rights were being violated because their unvaccinated kids had a valid religious exemption to vaccines.
A federal judge denied a request from the parents in March 2019 to let their kids go back to school, and last February the judge dismissed the parents' case entirely, finding that the exclusion was in the interest of public health.
However, on appeal at the Manhattan-based Second Circuit, U.S. Circuit Judge Michael Park on Tuesday appeared to have a hard time understanding which unvaccinated students were kept out of school. The judge pressed Rockland County attorney Larraine Feiden about why religious exemptions did not apply, but medical exemptions did.
“Are they less likely to spread disease through a medical exemption than through a religious exemption?” Park asked, referring to unvaccinated students with medical exemptions not being ordered to stay home.
Feiden acknowledged that there was no difference in the spread of measles for exemptions, but did stress that there was a difference between a child who medically could not be vaccinated because of a threat of injury versus a child not vaccinated due to their parents' “so-called religious beliefs."
“The people who could have been vaccinated, should have been vaccinated,” Feiden said.
Park, a Donald Trump appointee, still seemed perplexed.
“I guess I don’t understand how that is consistent with stopping the spread of measles,” the judge said.
Feiden added that it was important for all those who could be vaccinated to do so to help achieve herd immunity.
Michael Sussman, an attorney for the parents, took issue with that point, noting that herd immunity is reached for measles when about 95% of the population is vaccinated. Notably, however, the school had less than 50% of students, who are mostly Orthodox and Hasidic Jews, vaccinated for measles. The health department found over 150 cases of measles in the county when the order went into effect in late March 2019.
U.S. Circuit Judge Eunice Lee, a Joe Biden appointee, questioned Sussman on if he thinks the fact that the New York Legislature eliminated the religious exemption holds any weight in this case.
Sussman argued it did not, because his clients already had a proper religious exemption from the state prior to its elimination.
U.S. Circuit Judges Rosemary Pooler, a Bill Clinton appointee, rounded out the panel.
Neither Sussman nor Feiden immediately responded to email seeking comment.
This is not the first case the Second Circuit has heard regarding measles vaccines and Rockland County. In a case argued last November parents sued the county over its new mandate for what qualified as a medical exemption, and a rule that the school also needed to sign off on an exemption from the child’s doctor. That case is still pending.
While the order has since expired, the parents are seeking damages for the alleged violations of their rights.