F.F. On Behalf Children v. State

65 Misc.3d 616

108 N.Y.S.3d 761

F.F. ON BEHALF OF her minor children, Y.F., E.F. Y.F.; M. & T. M. on behalf of their minor children, C.M. and B.M.; E.W., on behalf of his minor son, D.W.; Rabbi M., in behalf of his minor children I.F.M., M.M. & C.M.; M.H. on behalf of W.G.; C.O., on behalf of her minor children, C.O., M.O., Z.O. and Y.O.; Y. & M. on behalf of their minor children M.G., P.G., M.G., S.G., F.G. and C.G.; J.M. on behalf of his minor children C.D.M. & M.Y.M.; J.E., on behalf of his minor children, P.E., M.E., S.E., D.E., F.E. and E.E.; C.B. & D.B., on behalf of their minor children, M.M.B. and R.A.B.; T.F., on behalf of her minor children, E.F., H.F. and D.F.; L.C., on behalf of her minor child, M.C.; R.K., on behalf of her minor child, M.K.; R.S. & D.S. on behalf of their minor children, E.S. and S.S.; J.M. on behalf of her minor children, S.M. & A.M.; F.H., on behalf of her minor children, A.H., H.H. and A.H.; M.E. on behalf of his minor children, M.E. & P.E.; D.B., on behalf of her minor children, W.B., L.B. & L.B. ; R.B., on behalf of her minor child, J.B.; L.R., on behalf of her minor child, E.R.; G.F., on behalf of his minor children, C.F. & A.F.; D.A., on behalf of her minor children, A.A. & A.A.; T.R., on behalf of her minor children, S.R. and F.M.; B.N., on behalf of her minor children, A.N., J.N. & M.N.; M.K., on behalf of her minor child, A.K.; L.B., on behalf of her minor children, B.B., A.B. & S.B.; A.V.M., on behalf of her minor children, B.M. and G.M.; N.L., on behalf of her minor children, H.L. and G.L.; L.G., on behalf of her minor children, M.C. and C.C.; L.L., on behalf of her minor child, B.L.; C.A., on behalf of her minor children, A.A., Y.M.A., Y.A. and M.A.; K.W., on behalf of her minor child, K.W.; B.K., on behalf of her minor children, N.K., S.K., R.K. and L.K.; W.E. and C.E., on behalf of their minor Child, A.E.; R.J. & A.J., on behalf of their minor Child, A.J.; S.Y. and Y.B., on behalf of their minor children, I.B. and J.B.; T.H., on behalf of her minor child, J.H.; K.T., on behalf of her minor children, A.J.T. & A.J.T.; L.M., on behalf of her minor child, M.M., D.Y.B., on behalf of her minor child, S.B.; A.M., on behalf of her minor child, G.M.; F.M., on behalf of his three minor children, A.M.M., D.M.M. and K.M.M.; H.M., on behalf of her minor child, R.M.; M.T. & R.T., on behalf of their minor child R.T.; E.H., on behalf of her minor children M.M.S.N. and L.Y.N., Rabbi M.B. on behalf of his minor child, S.B. and S.L. & J.F. on behalf of their minor child C.L., A-M.P., on behalf of her minor child, M.P.; R.L., on behalf of her minor children, G.L., A.L. and M.L.; N.B., on behalf of her minor child, M.A.L.; B.C., on behalf of her minor child, E.H. and J.S. and W.C., on behalf of their minor children, M.C. and N.C., S.L., on behalf of his three minor children, A.L., A.L. and A.L., L. M., on behalf of her two minor children, M.M. and M.M., N.H., on behalf of his three minor children, J.H., S.H. and A.H., on their own behalves and on behalf of thousands of similarly-situated parents and children in the State of New York, Plaintiffs,

v.STATE of New York; Andrew Cuomo, Governor; Letitia James, Attorney General, Defendants.

4108-19

Supreme Court, Albany County, New York.

Decided on August 23, 2019

Sussman & Associates

Michael H. Sussman, of Counsel

Attorneys for Plaintiffs

PO Box 1005

Goshen, New York 10924

Letitia James

Attorney General of the State of New York

Helena Lynch, of Counsel

Attorneys for Defendants

The Capitol

Albany, New York 12224-0341

Denise A. Hartman, J. Plaintiffs commenced this action on or about July 10, 2019, to challenge the constitutionality and legality of legislation, enacted June 13, 2019, which repealed New York's Public Health Law provision allowing religious exemptions from mandatory vaccinations for children who attend most public and private schools in the State of New York. The named plaintiffs are parents of diverse religious beliefs who had obtained a religious exemption or who had qualified for a religious exemption from mandatory vaccinations. Seeking to litigate the case as a class action, plaintiffs claim that New York's repeal of the religious exemption was based on religious discrimination and violates their rights to free exercise of religion under the First Amendment of the United States Constitution and Article 1, § 3 of the New York Constitution. They also claim that the repeal violates the Equal Protection Clause of the United States Constitution and forces plaintiffs to engage in compelled speech or violate New York's compulsory education laws.

On July 12, 2019, Supreme Court (Mackey, J.) denied plaintiffs' request for a temporary restraining order. Plaintiffs now seek a preliminary injunction enjoining enforcement of the legislative repeal of the religious exemption. Because plaintiffs have not demonstrated a likelihood of success on the merits, the Court denies the request for a preliminary injunction; the legislative repeal of the religious exemption remains in effect.

Background

New York's Public Health Law mandates that every parent or guardian of a child "shall have administered to such child an adequate dose or doses of an immunizing agent against poliomyelitis, mumps, measles, diptheria, rubella, varicella, Haemophilus influenzae type b (Hib), pertussis, tetanus, pneumococcal disease, and hepatitis B," which meet federal and state standards and specifications (Public Health § 2164 [2] [a] ). The statute provides generally that a child may not be admitted or attend a "school" in this State without a certificate from a health care provider or other proof that the child has received the mandated vaccines (Public Health § 2164 [5], [7] ). For purposes of the mandatory vaccination statute, "school" is defined broadly to mean "any public, private or parochial child caring center, day nursery, day care agency, nursery school, kindergarten, elementary, intermediate or secondary school" ( Public Health Law § 2164 [1 ] [a] ). Before June 13, 2019, New York's Public Health Law provided for two types of exemptions: a medical exemption, where a physician certifies that immunization "may be detrimental to a child's health" ( Public Health Law § 2164 [8 ] ); and a non-medical, religious exemption, where parents or guardians "hold genuine and sincere religious beliefs which are contrary" to the required vaccinations ( Public Health Law § 2164 [9 ] ).

On June 13, 2019, the Legislature repealed the provision authorizing non-medical, religious exemptions (L 2019, ch 35, § 1). The Introducer's Memorandum in Support of Senate Bill 2994A explained the public health concerns underlying the legislation:

The United States is currently experiencing the worst outbreak of measles since 1994, a disease that, in a major health victory, officials declared eliminated from the United States in 2000. 880 cases of measles have been confirmed nationwide so far in 2019.

Outbreaks in New York have been the primary driver of this epidemic. As of May 20, 2019, there have been at least 810 confirmed cases of measles in New York State since October 2018. The outbreaks have largely been concentrated in communities in Brooklyn and Rockland County with precipitously low immunization rates, some as low as 70 percent.

The Introducer's Memorandum cited California's recent experience when it repealed all non-medical exemptions to that State's vaccination requirements after an outbreak of measles at Disneyland in 2014. After the repeal, vaccination rates improved particularly in schools with the lowest rates of compliance, and overall vaccination rates "improved demonstrably," up nearly five percentage points to just over 95% from 2014-2015 to 2017-2018. While acknowledging that "freedom of religion is a founding tenet of this nation," the Introducer's Memorandum noted "longstanding precedent establishing that one's right to free religious expression does not include the right to endanger the health of the community, one's children, or the children of others."

Similarly, the Memorandum in Support of A2371A, the parallel Assembly bill, described the legislation's public health objective:

According to the Centers for Disease Control, sustaining a high vaccination rate among school children is vital to the prevention of disease outbreaks, including the reestablishment of diseases that have been largely eradicated in the United States, such as measles. According to State data from 2013-2014, there are at least 285 schools in New York with an immunization rate below 85%, including 170 schools below 70%, far below the CDC's goal of at least a 95% vaccination rate to maintain herd immunity.

After floor debates in both the Senate and the Assembly, the respective legislative bodies voted to repeal the religious exemption in subdivision 9 of Public Health Law. On June 13, 2019, Governor Cuomo signed the repeal into law. He explained in a press release, "While I understand and respect freedom of religion, our first job is to protect the public health and by signing this measure into law, we will help prevent further transmissions and stop this [measles ] outbreak right in its tracks."

Under the current statute and Department of Health guidance, children entering or attending school this fall who do not have required immunizations (or valid medical exemptions) must receive their first dose of mandated vaccinations, or overdue follow-up doses, within 14 days after their first day of school. Within 30 days after the first day of school, parents or guardians of such children must show that they have scheduled appointments for their children's next required doses in accordance with the Advisory Committee on Immunization Practice schedule (see Public Health Law § 2164 [7 ] [a] ).

Procedural History

Plaintiffs commenced this nominal class action on or about July 10, 2019 claiming that the repeal of the religious exemption violates their constitutional rights. On or about the same date, plaintiffs sought a...