BROOKLYN, N.Y. (CN) — Faced with $1,000 fines if they do not inoculate their children for measles, five parents in an Orthodox Jewish enclave of Brooklyn brought a lawsuit Monday over New York City's mandatory vaccination order.
Filed anonymously in Brooklyn Supreme Court, the petition was widely anticipated after the order issued last week by New York City Health Commissioner Oxiris Barbot, responding to an outbreak that has sickened hundreds since October.
“There is insufficient evidence of a measles epidemic or dangerous outbreak to justify the respondents’ extraordinary measures, including forced vaccination,” says the petition, which is signed by Manhattan attorney Robert J. Krakow.
Among other problems, the parents say the city caused “confusion, anxiety and fear” by releasing three different versions of the April 9 vaccination order, each directing residents of a slightly different set of ZIP codes to vaccinate their children or face a fine without otherwise providing proof of immunity.
As of this afternoon, city officials have not clarified which of the three orders is the proper version. They also have not responded to inquiries about whether the ZIP code discrepancies were intentional or the result of a glitch or clerical error.
The parents behind Monday’s petition say their children have been granted religious exemptions so they can attend school without getting vaccinated.
In addition to contending that the city has a duty to balance public health concerns against “the rights to individual autonomy, informed consent and free exercise of religion,” Krakow says the vaccination orders are otherwise arbitrary and capricious.
Krakow also says the city failed to use the “least restrictive measures” to end the outbreak — the seriousness of which he says is still in doubt.
Meanwhile the U.S. Centers for Diseases Control and Prevention reported Monday that measles cases are on the rise nearly 20 years after the vaccine and other measures had succeeded in eliminating the disease from the U.S.
Confirmed measles cases have risen to 555 across the country, almost 100 more cases than last week. Two-thirds of the new cases, including 85 percent in the last week, are in New York, mostly in Orthodox Jewish communities.
As for the petition in New York, however, attorney Krakow says the city failed to specify how many measles cases were caused by the vaccine itself.
The measles-mumps-rubella (MMR) vaccine is highly effective, but relies on herd immunity, or vaccinating as many people as possible, to keep the diseases at bay. The CDC maintains the 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.
The petitioners claim the vaccination can cause harm, and take issue with the fact that the measles vaccine is combined with vaccines for mumps and rubella, and that the city’s requirement to vaccinate for measles cannot be separated from these other inoculations to which they also object.
The petitioners challenged the Health Department’s count of active measles cases, suggesting the real number of infected individuals could be much lower. Even if Barbot’s count is correct, they say it would not be enough cases to justify such a drastic order.
It is true that measles is rarely fatal, but children under age 5 and people over age 20 are most at risk to suffer serious complications including pneumonia, encephalitis and ear infections.
Mayor Bill de Blasio’s office has counted 285 confirmed cases of measles in the tight-knit community of Orthodox Jews in Williamsburg, Brooklyn, since October. Nearly 250 of those cases were children under 18. There have been no deaths associated with the outbreak, though people have suffered complications.
The petitioners also noted that while over 400,000 people live in the six ZIP codes named in the three vaccination orders, it’s not clear how many active measles cases exist in those zip codes and the orders provided no data.
Governor Andrew Cuomo last week called measles vaccination a “First Amendment issue” that raises legal questions. His office did not immediately respond to a request for comment Monday.
The suit also called the 48-hour period during which parents were supposed to vaccinate their children “recklessly short.”
Some fear the measles outbreak will stoke anti-Semitic backlash, something that has already happened farther upstate in Rockland, where unvaccinated children were barred from public places.
Krakow wrote that New York state law points to keeping kids home from school or issuing quarantines to stop the spread of the disease. On April 5, however, in upstate Rockland County, Judge Rolf Thorsen struck down a quarantine-like order that required unvaccinated children to stay out of public spaces.
An Amish community in Ohio and the Somali-American community in Minnesota have both faced measles outbreaks in recent years after newcomers or outsiders introduced the virus to the small, close, unvaccinated communities.
A spokesperson for de Blasio did not immediately respond to requests for comment Monday.
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