When New York’s health department announced this week that it would mandate vaccinations in parts of Brooklyn to quell a ballooning measles outbreak, it was not the first to take such a step. In fact, its legal basis for the rare effort may be predicated on the actions of Massachusetts authorities who tried — and succeeded — in doing so over a century ago.
In 1902, a Massachusetts man defied an order to be vaccinated against smallpox despite the fact the dangerous disease — since eradicated, thanks to vaccine — was spreading in Cambridge. The fight that ensued between the Rev. Henning Jacobson and public health authorities became a pillar on which public health powers have relied since the Supreme Court handed down its ruling in the state’s favor three years later.
Whether that legal precedent will actually convince 21st century courts that New York’s actions are justifiable today likely will be tested. But one thing is clear: The question of whether mandating vaccinations is the right way to try to end the spread of measles among Orthodox Jews in Williamsburg is already a source of debate in the public health law community.
“I could see it going either way,” said Lindsay Wiley, a law professor at American University Washington College of Law, when asked whether New York had the legal authority to require vaccination of all people in four specific Williamsburg zip codes. “The Supreme Court precedent is long-standing but also from a time period when constitutional law was not understood in the terms and through the frameworks that the courts now use.”
In Jacobson’s case — the reverend was fined $5 for failing to comply with a vaccination order — the Supreme Court ruled that individual rights must at times give way to the common good.
“On any other basis, organized society could not exist with safety to its members,” the court decreed. “Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.”
That argument should hold in the modern era in a case in which a state faces a public health threat from measles, said Donna Levin, national director of the Network for Public Law Health and former general counsel for the Massachusetts Department of Health.
“It’s a seminal public health law case where you are balancing the common good against the autonomy of the individual and the court lays out the principles of how you have to balance that,” said Levin.
The outbreak in Williamsburg is the largest of several measles epidemics underway across the country; so far this year 465 cases have been recorded nationally. Just four months into 2019, that is already the second biggest tally in a single year in at least two decades.
The Williamsburg outbreak stretches back to last October, when an unvaccinated child contracted the virus during a visit to Israel and returned home while still infectious. As of Monday, there had been 285 cases in affected parts of Brooklyn and Queens. In 2017, the city recorded two cases of measles, New York City Mayor Bill de Blasio noted on Tuesday.
Earlier this week, the city warned it could fine or even close yeshivas — Jewish religious schools — that do not follow the health department’s order to exclude unvaccinated children from school while the outbreak is underway.
The mandatory vaccination order — part of a broader order declaring the outbreak a public health emergency — applies to adults and children. That in itself is unusual, Wiley said, noting most mandatory vaccination policies apply only to children. The exceptions are members of the military, health workers during medical emergencies, and sometimes college students, she said.
Dr. Oxiris Barbot, New York’s health commissioner, said violation of the order could result in a fine of $1,000. When asked what would happen if someone persistently refused to be vaccinated, she sidestepped the question, saying the department would consult with its lawyers. The order, however, warns that the penalty for violations could include imprisonment.
The health department will attempt to identify violators by tracing people who have been in contact with others infected with measles. Unvaccinated contacts will be told they must get vaccinated with the measles, mumps and rubella vaccine — known as MMR — or face penalties.
Although people who cannot be vaccinated for medical reasons are exempted from the mandate, the order makes no such provision for people who say vaccination is against their religious beliefs — even though New York State is one of 47 that allow parents to cite religious or philosophical objections as a reason not to vaccinate their children.
Court challenges to the mandatory vaccination order may cite that discrepancy, said Wendy Parmet, a professor of public health law at Northeastern University.
“The state has an exemption, but the city is in a sense saying, ‘In our emergency powers, we’re going to fine people who have taken advantage of the exemption the state has provided,’” Parmet noted. “And how those potential incompatibilities play out here I think is an interesting question.”
Though Henning Jacobson was a clergyman, his argument against vaccination didn’t rely on religious objection to vaccine. He argued that he and his son had had bad reactions to earlier smallpox shots and he did not want to be revaccinated.
At the time, constitutional rights protecting freedom of religion did not apply to state or local government laws — so a religious claim could not have been brought, Parmet said.
That has since changed. Still, multiple cases over the years have, if indirectly, created the impression that the Constitution does not enshrine the right to object to vaccination on religious grounds, she said: “It’s pretty clear there is no constitutional right to a religious exemption.”
While court challenges are likely inevitable, Wiley said the limits New York has placed on its order — it only applies in affected neighborhoods, and is in place until April 17 (though it could be extended) — may work in its favor. By the time courts, especially appeal courts, hear the case, the outbreak could be contained and the mandatory vaccination order lifted.
“Courts generally are reluctant to weigh in on a question like this if they don’t have to,” she said. “So if the situation has sort of played itself out by the time it made it to an appellate court, we may not get new pronouncements on the validity of Jacobson out of this case because of the limited duration of this order.”
That said, a move by Rockland County — north of Manhattan — to bar unvaccinated children from enclosed public places was already put on hold by a judge who questioned the necessity for an emergency declaration in that county, which has recorded 168 measles cases, also primarily among Orthodox Jewish families.
Even if the Jacobson precedent holds, New York’s extraordinary decision could have another legacy — on relations between health authorities and the community that has resisted vaccination of its children.
Susan Kim, executive director of Georgetown University’s Center for Global Health Practice and Impact, loves Jacobson v. Massachusetts — “it’s my favorite case” — and thinks New York’s decision to mandate vaccination in this situation is “a valid step.” But she acknowledged it is one that is not going to win hearts and minds among vaccine resisters and the vaccine hesitant.
Parmet is worried about public health wielding such a heavy hammer.
“We’re living in a time where significant numbers of people — definitely a minority, but significant numbers of people — don’t trust authorities, don’t trust expertise, don’t believe in science,” she said. “And in the long run the question’s going to be: How do we figure out how to reknit that trust? And you can’t keep just threatening tougher and tougher things.”
“This is not a long-term solution,” Parmet said. “And we need to be thinking about long-term solutions.”