By: Jessica Szuminski, Volume 104 Staff Member
What’s more important: the right to freely practice religion, or the right of children to not die from deadly but eradicable diseases? The state of New York determined that the latter was more pressing on August 23, 2019, when the state district court blocked a preliminary injunction in F.F. ex rel. Y.F. v. State that would have halted the New York State Legislatures’ recent removal of religious exemptions from school vaccine requirements.
I. THE MEASLES OUTBREAK AND MANDATORY VACCINATIONS
Following a trend of anti-vaccination narratives and lower vaccination rates in school aged children, a disease that the World Health Organization declared eliminated from the United States in 2000 resurfaced: measles. The Centers for Disease Control and Prevention confirmed that there have been 1,250 cases of measles in the United States from January 1, 2019 to October 3, 2019. Many of these individual cases are the result of outbreaks in New York, so the state legislature responded by amending New York Public Health Law § 2164, the law mandating vaccination requirements for school children. On June 13, 2019, the legislature repealed the last non-medical exemption in § 2164, which was the religious exemption that allowed children to be exempted from the vaccination requirement when the parents or guardians demonstrated that vaccines were contrary to their genuine religious beliefs. This change means that families who previously had religious exemptions will now be forced to comply with the requirements in order for their children to attend any school (public, private, or parochial) in the state of New York.
Notably, New York is not the first state to remove religious or personal belief exemptions from its vaccination requirement laws; it joins California, Maine, West Virginia, and Mississippi as the fifth state to remove all such exemptions. None of the lawsuits challenging the removal of these exemptions under the Free Exercise Clause have been successful.
II. F.F. EX REL. Y.F. V. STATE OF NEW YORK
After this amendment was passed in New York, a number of people who opposed vaccinations, commonly referred to as anti-vaxxers, were outraged. In F.F. ex rel. Y.F. v. State, a class action of sixty-four anti-vaxxer parents holding diverse religious beliefs sued the state on the grounds that their constitutional rights were being violated. These families represented their children and all those who have religious exemptions in New York, some belonging to organized religions and others having no affiliation. What the court was considering in its August 23rd decision was not a ruling on the merits of the case, but rather whether to grant a preliminary injunction while the underlying suit continued.
The standard for determining whether or not to issue a preliminary injunction requires the court to consider the potential for irreparable harm resulting from a denial of the injunction and the likelihood that the plaintiffs will succeed on the merits of their claims. In both cases, the scales tipped against the plaintiffs. The court conceded that denial of the injunction would result in irreparable harm for the plaintiffs: with the amended law in full force, the parents will be forced either to vaccinate their children contrary to their religious beliefs or to uproot their entire lives by homeschooling their children or moving to a state where religious exemptions are still permitted. Despite this, the court found that the harm to the unvaccinated public from potential exposure and infection is so great that it outweighs the harm to the plaintiffs.
In regard to the likelihood of plaintiff’s success on the merits, the court found it very improbable that their claims would be meritorious. These families alleged that the repeal of the religious exemption violates their right to freely practice religion, their rights under the Equal Protection Clause, and their protection from compelled speech. Of these arguments, the plaintiffs only thoroughly argued their freedom of religion claim, so that is also what the court spent most of its opinion addressing, providing only a brush-off explanation for its rejection of the Equal Protection and compelled speech arguments. Relying heavily on Second Circuit dicta (and an overwhelming amount of other caselaw) that establishes the constitutionality of mandatory vaccine requirements and an in-depth analysis of how a blanket removal of all non-medical exemptions reflects a neutral action in furtherance of public health goals rather than religious animus, the court concluded that the plaintiffs are unlikely to succeed on their Free Exercise Clause argument. Accordingly, in conjunction with the balance of potential public harm outweighing the plaintiff’s harm, the court denied the plaintiff’s motion for a preliminary injunction.
III. THE DECISION IN CONTEXT
Because this opinion was only deciding whether to issue a preliminary injunction, New York courts have not officially held that the amended Public Health Law § 2164 is constitutional. However, this decision, which undermines the plaintiff’s potential for success, is indicative of the ruling that is to come. If this case actually continues, it should join the other states that have already ruled in favor of these laws and upheld the repeals of religious and personal belief exemptions because the public health needs are paramount.
The courts that have ruled on vaccination laws eliminating all non-medical exemptions seem to unanimously agree that vaccination enforcement trumps religious freedom, and rightly so. When something as critical as health and safety is on the line, public safety takes precedence over religious liberties. If the free practice of your religion can result in the preventable death of another person or the contraction of an eradicable disease, then state legislators should have the power to prioritize healthcare and pass laws that achieve this goal without creating carve-outs for non-medically necessary exemptions like religious beliefs.
A. Y.F. Is Not Enough
While the decision in Y.F. was an important step in ensuring that courts recognize the significance of the health and safety concerns at risk, it is not all that is needed in order to create a lasting remedy that addresses the root of the issue: rising rates of unvaccinated people and growing rates of preventable diseases. In order to combat these problems, more states need to pass legislation to remove religious exemptions and any other non-medical exemptions that remain in their mandatory vaccination requirements. All fifty states have mandatory vaccination laws for school children. Of those fifty states, forty-five of them still allow for religious exemptions, and fifteen of these states also allow for other personal belief exemptions.
Because there are people who are not and cannot be vaccinated, they rely on herd immunity to be safe from infectious diseases. However, herd immunity is declining because too many people are choosing not to vaccinate their children. Law makers like those in the New York legislature rely on this information to pass laws that strive to increase the rates of immunizations and promote the overall health of their communities. But New York isn’t the only state where herd immunity is suffering, so other state legislatures need to pay attention to this crisis and pass laws that protect their constituents by removing all non-medical exemptions. At least six states have proposed new legislation that would repeal non-medical exemptions from their school vaccination requirements, but there are twenty states where bills propose to expand vaccination exemptions and make it easier for parents to opt their children out of mandatory vaccinations. Thankfully, these expansion proposals are rarely successful.
B. Abuse of the Religious Exemption
Another major critique of allowing religious exemptions is that anti-vaxxers will fabricate religious beliefs in order to keep their children unvaccinated. A new study supports this fear by comparing the rates of religious exemptions claimed in states that do not have a separate personal belief exemption versus states that do. The results demonstrated that states with only religious exemptions were four times more likely to have religiously exempted kindergarteners than states that also allow for personal belief exemptions. While this does not necessarily mean that a majority of religious exemptions are falsified, there is clearly potential for people to take advantage of the exemption for legitimate religious beliefs. This threat poses a danger to public health, and it also influences some law makers in their decisions to repeal such exemptions altogether.
New York’s removal of religious exemptions from their law mandating immunizations for school children reflects their understanding of the serious public health issues surrounding declining herd immunity and increasing outbreaks. However, the decline in vaccination rates is a national issue that requires proactive legislation from more states. All religious and personal belief exemptions need to be repealed entirely in order to appropriately prioritize public health.
 F.F. ex rel. Y.F. v. State, 108 N.Y.S.3d 761 (Sup. Ct. 2019).
 Roni Caryn Rabin, Eager to Limit Exemptions to Vaccination, States Face Staunch Resistance, N.Y. Times (June 14, 2019), https://www.nytimes.com/2019/06/14/health/vaccine-exemption-health.html.
 Id. Since measles was eliminated from the United States, these outbreaks result from travelers bringing measles into the states from other countries where the disease has not been eliminated. Id. When communities in the United States remain unvaccinated, the chance of an outbreak increases. See id.
 Y.F., 108 N.Y.S.3d at 765.
 Id. at 766.
 See id.
 Id. at 771.
 See id. (citing Workman v. Mingo Cty. Bd. of Educ., 419 Fed. Appx. 348, 354 (4th Cir. 2011); Whitlow v. California, 203 F. Supp. 3d 1079, 1085–87 (S.D. Cal. 2016); McCarthy v. Boozman, 212 F. Supp. 2d 945, 948 (W.D. Ark. 2002).
 Anti-vaxxer, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/anti-vaxxer.
 Y.F., 108 N.Y.S.3d at 765.
 Id. at 767.
 Id. at 765.
 Id. at 769–70.
 Id. at 770.
 Id. at 771–77.
 Id. at 777.
 Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir. 2015) (“New York could constitutionally require that all children be vaccinated in order to attend public school.”).
 Y.F., 108 N.Y.S.3d at 771–76.
 Id. at 777.
 Id. at 771.
 States with Religious and Philosophical Exemptions from School Immunization Requirements, National Conference of State Legislatures (June 14, 2019), http://www.ncsl.org/research/health/school-immunization-exemption-state-laws.aspx.
 Id. (noting that while the Minnesota and Louisiana laws do not explicitly include a religious exemption category, their personal belief exemption encompasses religious exemptions).
 Herd immunity, or community immunity, is “[a] situation in which a sufficient proportion of a population is immune to an infectious disease (through vaccination and/or prior illness) to make its spread from person to person unlikely. Even individuals not vaccinated (such as newborns and those with chronic illnesses) are offered some protection because the disease has little opportunity to spread within the community.” Vaccines & Immunizations: Glossary, Centers for Disease Control and Prevention (May 31, 2016), https://www.cdc.gov/vaccines/terms/glossary.html#c.
 See Dorit Rubinstein Reiss & Lois A. Weithorn, Responding to the Childhood Vaccination Crisis: Legal Frameworks and Tools in the Context of Parental Vaccine Refusal, 63 Buffalo L. Rev. 881, 883–85 (2015).
 See Y.F., 108 N.Y.S.3d at 766–67.
 See Aimee Cunningham, How Holes in Herd Immunity Led to a 25-Year High in U.S. Measles Cases, ScienceNews (Apr. 29, 2019), https://www.sciencenews.org/article/holes-herd-immunity-led-25-year-high-us-measles-cases.
 States Move to Eliminate Non-Medical Exemptions for Vaccinations, ASTHO (Feb. 21, 2019), https://www.astho.org/StatePublicHealth/States-Move-to-Eliminate-Non-Medical-Exemptions-for-Vaccinations/02-21-19/.
 Michelle Lou & Brandon Griggs, Even with Measles Outbreaks Across the US, At Least 20 States Have Proposed Anti-Vaccination Bills, CNN (Mar. 6, 2019), https://www.cnn.com/2019/03/06/health/vaccine-exemption-bills-across-us-trnd/index.html.
 Parents Fake Religion to Avoid Vaccines, CBS News (Oct. 17, 2007), https://www.cbsnews.com/news/parents-fake-religion-to-avoid-vaccines/.
 Joshua T.B. Williams et al., Religious Vaccine Exemptions in Kindergartners: 2011–2018, 144 Pediatrics, Dec. 2019, at 1.
 Id.; see also Helen Branswell, Rise in Religious Vaccine Exemptions Suggests Some Parents Are Making False Claims, Study Suggests, STAT (Nov. 4, 2019), https://www.statnews.com/2019/11/04/rise-in-religious-vaccine-exemptions-suggests-some-parents-are-making-false-claims-study-suggests/ (noting how religious exemption claims are rising despite the decreasing number of Americans who report being part of an organized religion).
 See F.F. ex rel. Y.F. v. State, 108 N.Y.S.3d 761, 775 (Sup. Ct. 2019) (clarifying that even if some New York legislators criticized those who falsify religious beliefs to claim an exemption, it does not mean that the legislature is discriminating against those with legitimate religious beliefs).