Measles, emergency powers, and the allure of the ‘old’ public health

As measles cases continue to proliferate, so too does litigation over public health officials’ efforts to stem the contagion. Although the outcome of this litigation is uncertain, one point is already apparent: Although public health officials wield extraordinary legal powers, they need new tools to fight 21st-century outbreaks.

Health officials in New York City and Rockland County, N.Y., are facing difficult situations. Between September 2018 and April 8, 2019, more than 250 cases of measles were confirmed in four ZIP codes in Brooklyn. Between October 2018 and March 26, 2019, there were 153 confirmed cases in Rockland County. As of last week, 626 cases of measles have been confirmed in 22 states. In 2016, only 86 cases were reported in the entire U.S.

The current outbreaks, like those before them, have centered in communities with a large number of unvaccinated individuals. The New York cases have mostly affected Hasidic Jews, but other recent outbreaks have occurred in other populations. In all instances, the problem is that many parents choose not to vaccinate their children, undermining herd immunity and allowing the highly-contagious measles virus to spread.

In response to the current outbreaks, Rockland County and New York City officials banned unvaccinated students from attending school and worked to educate parents about the safety and benefits of vaccinations. Officials have also tried to engage with community leaders. So far, these efforts have failed to convince enough parents to vaccinate their children so as to quash the outbreaks. False information about both vaccination and measles have continued to spread even more prolifically than the virus.

So officials in both Rockland County and New York City have reached for their emergency powers. Like most states, New York grants health officials the authority to employ highly coercive measures that limit individual liberty upon the declaration of a public health emergency. In Rockland County, officials attempted to use emergency powers to bar unvaccinated minors (except those who are immune or medically unable to be vaccinated) from appearing in public places. In New York City, officials ordered all individuals in the affected ZIP codes to be vaccinated unless they can document they are immune or medically exempt.

Not surprisingly, these orders were promptly challenged in court by parents who reject vaccination for their children. These parents have argued that the vaccine is unsafe, and that health officials have acted arbitrarily and capriciously in violation of the parents’ constitutional rights. As of April 20, one trial court has halted the Rockland Country order, finding that the county had failed to establish that an emergency existed, while another trial court rejected a challenge to the New York City order. Litigation over both orders continues.

In asserting the constitutionality of vaccination mandates and coercive public health orders, public health lawyers generally look back to the Supreme Court’s 1905 case of Jacobson v. Massachusetts. In that case, the Supreme Court upheld a law mandating smallpox vaccination stating, “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

The Jacobson case is still the starting point for any discussion of the constitutionality of public health emergency powers, and courts in the modern era have continued to cite it in upholding state vaccine mandates.

That said, it’s worth noting that Jacobson comes from a very different legal era. It was decided less than 10 years after the court endorsed segregation in its infamous Plessy v. Ferguson decision, and only a few weeks before the court struck down a maximum hours labor law. During the epidemic at issue in Jacobson, health officials forcibly vaccinated African Americans and immigrants, and paid little regard to the rights or interests of those communities. Only a few years earlier, San Francisco had mandated that residents of Chinese ancestry be inoculated with an experimental vaccine against the plague.

The reason Jacobson endures, while other cases and public health practices from its era have been cast aside, is that its central message — “there are manifold restraints to which every person is necessarily subject for the common good” — remains as relevant today as it was in 1905. Public health still requires some limitations on individual freedom. Still, exactly what limitations Jacobson countenances, and how its reasoning should be applied in our own, very different era, are deeply contested and will assuredly be debated as the New York litigation continues.

Even if the courts conclude, as they might, that Jacobson supports the Rockland County and New York City orders, that doesn’t mean Jacobson provides the most effective model for stopping contemporary outbreaks. After all, in what other areas do public officials rely upon approaches that were used in 1905?

In asking that question it is important to keep in mind that not only has constitutional law changed dramatically since Jacobson, so too has the nature of opposition to vaccines. Although resistance today echoes earlier anti-vaccination movements, health officials now face new and far more daunting challenges. These include the rapid spread of misinformation across social media (some of it disseminated by malicious bots designed to stoke discord), increasing levels of political polarization, declining trust in government and science, and heightened tribalism.

In the face of these new challenges, public health officials may understandably conclude that they have little choice but to use their emergency powers. Unfortunately, rampant misinformation and increased hostility toward science and government heighten the risk that the use of such powers will backfire, as people opposed to vaccination harden their positions and feel affirmed in believing that health officials are the enemy.

I believe it is imperative that public health officials resist the allure of Jacobson and look for new approaches to improving vaccination rates. While eliminating personal belief and religious exemptions, as California did after the 2014 Disneyland outbreak, may help, other approaches should also be considered. Some, such as requiring parents to undergo education prior to receiving exemptions have already been adopted in some states. Others, such as providing parents with tax credits or reductions in their health insurance rates for vaccinating their children, have yet to be tested.

Vaccine supporters and health professionals may also want to consider new ways of employing social media in their efforts to educate communities about the safety of vaccines and the dangers of vaccine-preventable diseases. In the era of bots, public health pamphlets may no longer do the trick.

More controversially, public health advocates should consider opening a dialogue with vaccination opponents, searching for areas of possible compromise, such as modifying the National Childhood Vaccine Injury Act. Officials may even want to consider limiting mandates to the most dangerous diseases (which may well include measles).

No compromise is likely to be perfect, or fully effective. Many will likely fail. But the return of measles suggests that our old, tried-and-true methods of mandates and emergency orders don’t seem to be solving the problem of vaccine resistance. New tools are needed before more dangerous outbreaks of even more lethal diseases occur.

Wendy E. Parmet, J.D., is professor of law and director of the Center for Health Policy and Law at Northeastern University School of Law and professor of public policy and urban affairs at Northeastern’s School of Public Policy and Urban Affairs.