Extracted from Law360
Until a few months ago, “measles” was not a word we heard often. That’s because measles was essentially eliminated in 2000. But it’s making a comeback: From Jan. 1 to April 11, 2019, there have been a staggering number of cases (555) confirmed in 20 states, stoking fears and prompting government action.
New York City is the U.S. hub of this latest outbreak. Between October 2018 and April 18, 2019, there were 359 confirmed measles cases in Brooklyn and Queens. On April 9, 2019, New York City Health Commissioner Oxiris Barbot ordered people who live or work in certain parts of Brooklyn to (1) get the measles-mumps-rubella vaccine if they have not already been vaccinated; and (2) vaccinate their children older than six months who have not already been vaccinated.
Alternatively, they can demonstrate either a medical exemption from the vaccine or immunity to measles. Failure to comply with the order is a misdemeanor punishable by a $1,000 fine (and possibly imprisonment). Lawyers began mounting legal challenges to the order within days of its issuance.
These days, with the rise of the anti-vaccination movement, mandatory vaccinations might seem archaic. But they have been an important part of our public health infrastructure for over a hundred years.
Mandatory vaccinations first took hold in the United States to confront the growing threat of smallpox. In Jacobson v. Massachusetts, the U.S. Supreme Court upheld states’ power to require vaccinations. Jacobson involved a state law that empowered local health boards to require vaccinations when “necessary for the public health or the public safety.” Facing an epidemic, the city of Cambridge, Massachusetts, invoked that law to require smallpox vaccinations.
The court rejected a challenge under the Fourteenth Amendment, proclaiming that “the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” The court recognized that the constitutional right to “liberty” has limits and that there “are manifold restraints to which every person is necessarily subject for the common good,” including mandatory vaccinations.
In the 100-plus years since Jacobson, state and local laws around the country have continued to mandate vaccinations in certain situations, such as before a child can attend public school. And although all states provide medical exemptions, only some offer exemptions for religious or philosophical reasons. Because of those exemptions, the contours of imposing mandatory vaccinations (particularly in the First Amendment context) have not been fully litigated. But cases so far suggest that parents’ philosophical or religious objections would not outweigh a state’s compelling interest in protecting the public from contagious disease.
In 2011, the Fourth Circuit addressed a parent’s challenge to a West Virginia school’s denial of her child’s medical exemption under a mandatory vaccination law in Workman v. Mingo County Board of Education. The plaintiff claimed that West Virginia’s mandatory vaccination program violated her First Amendment rights and denied her due process and equal protection. The Fourth Circuit found that, even if strict scrutiny review applied to the First Amendment challenge, West Virginia’s law would withstand it because the state had a compelling interest in preventing the spread of communicable diseases by mandatory vaccinations.
The court invoked the Supreme Court’s dictum in Prince v. Massachusetts, discussing how “[t]he 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 court also rejected the plaintiff’s equal protection challenge because West Virginia’s law was not facially discriminatory. Finally, the plaintiff’s due process arguments were foreclosed by the Supreme Court’s opinions in Jacobson and other cases. As the court noted, “[T]he Supreme Court has consistently recognized that a state may constitutionally require school children to be immunized.”
The Second Circuit followed suit in 2015, rejecting a challenge to a New York law requiring certain vaccinations for public school attendance unless a medical or religious beliefs exemption applied. The court first found that Jacobson barred the parents’ substantive-due-process challenge. The Second Circuit then joined the Fourth Circuit in rejecting a mandatory vaccination challenge based on religious freedom, relying on the “persuasive dictum” in Prince.
The holding was consistent with Second Circuit precedent that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” The Second Circuit didn’t address what level of scrutiny applied or whether the state’s interest was “compelling.”
More recently, in Brown v. Smith, the California Court of Appeal faced the question of whether a state could eliminate an existing “personal beliefs” exemption from a mandatory vaccination law. California’s mandatory vaccination law had allowed exemptions for medical and personal beliefs reasons until the state legislature passed a 2015 amendment to the law eliminating the personal beliefs exemption.
Parents with “sincerely held philosophic, conscientious, and religious objections to state-mandated immunization” challenged the change. The court rejected the plaintiffs’ arguments based on various provisions of California’s Constitution, including clauses guaranteeing the free exercise of religion, a right to attend school, equal protection and due process. The court invoked the Fourth Circuit’s Workman opinion and found the state’s interest in preventing the spread of communicable diseases by mandatory vaccinations “compelling.”
Mandatory vaccinations remain an important tool in the fight against contagious disease. New York is deploying it to battle this new measles outbreak, exercising powers that the Supreme Court recognized more than a century ago in Jacobson. Indeed, Brooklyn Judge Lawrence Knipel has already rejected a challenge to the Brooklyn mandatory vaccination order. Judge Knipel explained: “A fireman need not obtain the informed consent of the owner before extinguishing a house fire. Vaccination is known to extinguish the fire of contagion.”
Other cities and states will likely follow New York’s lead with mandated vaccines if the measles outbreak spreads. Challenges to those orders are inevitable, but — whether they’re based on religion, philosophy or other concerns — they are likely to fail.
 Measles Cases and Outbreaks, CDC, https://www.cdc.gov/measles/cases-outbreaks.html (last visited Apr. 21, 2019).
 Measles, New York City Department of Health, https://www1.nyc.gov/site/doh/health/health-topics/measles.page (last visited Apr. 21, 2019).
 Order of the Commissioner, New York City Department of Health and Mental Hygiene (Apr. 9, 2019), https://www1.nyc.gov/assets/doh/downloads/pdf/press/2019/emergency-orders-measles (last visited Apr. 11, 2019).
 Jacobson v. Massachusetts , 197 U.S. 11 (1905).
 Workman v. Mingo Cty. Bd. of Educ. , No. 09-2352, 419 Fed. App’x 348 (4th Cir. Mar. 22, 2011).
 Prince v. Massachusetts , 321 U.S. 158 (1944).
 Phillips v. City of N.Y. , 775 F.3d 538 (2d Cir. 2015).
 The court also rejected challenges on equal protection and Ninth Amendment grounds for reasons that are not relevant here.
 Brown v. Smith , 24 Cal. App. 5th 1135 (Cal. Ct. App. 2018).
 C.F. v. New York City Dep’t of Health & Mental Hygiene, No. 508356/19, accessible at https://www.courthousenews.com/wp-content/uploads/2019/04/brooklyn-measles.pdf (last visited Apr. 21, 2019).