On Tuesday morning, responding to a growing and serious measles outbreak in largely Haredi Jewish areas of Brooklyn, New York City mayor Bill de Blasio declared a public health emergency. He also ordered all unvaccinated individuals in those neighborhoods to receive a measles vaccine, saying in a press conference, “This is the epicenter of a measles outbreak that is very, very troubling and must be dealt with immediately.” In the midst of an ongoing series of measles outbreaks across the U.S. and a renewed wave of anti-vaccination misinformation, the response to the order is probably going to be very, very loud.
As of April, there have been 285 confirmed cases of measles in Brooklyn and Queens, most of them, the city says, involving people in the Orthodox community. A huge concentration of those cases are in Williamsburg, and the mandatory vaccination order covers the four zip-codes in that area. (The order is not just confined to Orthodox Jews.) Earlier this month, responding to a similar measles outbreak in Orthodox communities in Rockland County, New York, the county commissioner there issued an emergency order barring unvaccinated children from schools and other public areas for 30 days; that order was halted on Friday by a temporary court ruling.
The New York City health commissioner, Dr. Oxiris Barbot, told Stat News the outbreaks are being fueled by “a small group of anti-vaxxers in these neighborhoods. They have been spreading dangerous misinformation based on fake science.”
Requiring vaccines in an emergency situation is a highly unusual but not unheard-of step, says Dorit Reiss, a professor at UC Hastings and an expert on vaccines, law and policy. In an interview with Jezebel, she said that while it’s well within their legal rights as a city, New York City’s order is one of the broadest she’s seen in years.
“This is a very, very broad measure,” Reiss said, “and it might be seen as going too far.”
New York state law has long had religious exemptions for the vaccines that are usually required to attend public schools or daycare. Reiss says that the emergency provisions under state law aren’t subject to the same religious exemptions. City law says that the Department of Health has the power to declare a state of emergency and to “establish procedures to be followed, issue necessary orders and take such actions as may be necessary for the health or the safety of the City and its residents.”
The state also has the power to require some specific vaccines, a law that was solidified in a 2018 New York State Court of Appeals decision, Garcia v New York City Dept. of Health & Mental Hygiene. The city was sued in 2015 by a group of parents who objected to a requirement that their children under the age of 5 be given a flu shot to attend daycare or childcare program. But the appeals court ruled that the city is allowed to require flu shots for those young children, saying “the “promulgation of the flu vaccine falls squarely within the powers specifically delegated to the department.”
The concern in the case of the New York City order, Reiss says, “is really constitutional.” A 1905 Supreme Court decision, Jacobson v. Massachusetts, gave the state the right to impose mandatory vaccination laws to protect public health. (In an echo of today’s controversies, the case was brought by a Swedish pastor who objected to having his children vaccinated for smallpox and claimed that one of them had suffered an injury from vaccines.)
“Under Jacobson you need a public health necessity” to require a vaccination, Reiss explains. “We’ve had 25 cases of measles recently, over 150 in total, and children in the ICU. But the question is, is this measure reasonable and proportional given the extent of the problem?”
The last time a vaccination order this broad was issue was in Pennsylvania in 1991, Reiss says, an outbreak that centered on the Faith Tabernacle Congregation. The city’s health department won a court order to vaccinate Faith Tabernacle’s children after many families refused, but by the time the legal battle was over, it was arguably too late: only nine children were ultimately vaccinated, NPR reports. Nine more died, including six from Faith Tabernacle.
The same discussions about personal beliefs versus public health will ensue as a result of de Blasio’s orders, Reiss says. She has a complex view on the subject, despite being a strong public advocate for vaccines (to the point that she’s been viciously harassed by the anti-vaccination movement for years and falsely accused of being a paid shill for Big Pharma).
“I think there’s room for measures limiting individual liberties to protect others in the interest of public health,” Reiss says, “But this might be too far.”
Reiss spends enough time studying and responding to anti-vaccine propaganda to know that anti-vax groups and websites will use de Blasio’s order as ammunition—proof that a tyrannical government really will crack down on anyone who opposes vaccines.
“They’re certainly going to try to use this that way,” she says. The best response, she says, is to point out what the order actually says, and how public health and law experts like herself feel about it. “Probably the best things we can do are, first of all, point out that we’re not sure we agree with it as a first step,” Reiss says, noting that building trust in doctors and public health officials, the way a group of Orthodox nurses are trying to do in Brooklyn, is often more helpful in the long term. Second, she says, it’s important to clarify what the order actually says. De Blasio stated that there will be a potential $1000 fine for unvaccinated people. “Nobody’s going to round up people,” she says, “and forcibly vaccinate them.”
That said, Reiss adds, “Public health authorities are not immune to overreacting from fear. We need to support them when they use reasonable public heath measures and remind them when they overstep.”