In June, New York eliminated exemptions based on religious belief from the state’s requirement that children receive certain vaccinations as a condition of attendance at schools and child care facilities. An action filed on July 10, 2019 in Supreme Court, Albany County, F.F. on behalf of her minor children, Y.F., E.F. Y.F. v. State of New York, is challenging the repeal. In addition to seeking to overturn the legislation on a variety of ground, the case also seeks both temporary and permanent restraining orders to prevent enforcement.
Challenges to vaccine mandates are far from new. The United States Supreme Court first addressed the issue almost 115 years ago in Jacobson v. Massachusetts, 197 U.S. 11 (1905). Despite its vintage, Jacobson remains instructive today. The plaintiff in the case challenged a local smallpox vaccine requirement that included a penalty for noncompliance. He argued that vaccination could be harmful, and that the vaccine ingredients could be impure and dangerous. He offered mostly his own opinions on the subject, rather than reliable scientific evidence.
By that time, it was settled law that state and local governments could enact legislation to protect public health and public safety as part of the State’s police power. The Court acknowledged however that the exercise of this may not “contravene the Constitution of the United States or infringe any right granted or secured by that instrument.”
In finding the vaccine mandate constitutional, the Court referred to decisions in numerous states, including New York, holding that vaccine requirements as a condition of public school admission do not impermissibly infringe upon individual rights. In upholding the requirement, the Court noted that government is obligated “to keep in view the welfare, comfort and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few.” Although the religious freedom argument was not specifically advanced in Jacobsen, the Court seemed to consider the balance of individual liberties against public welfare and the common good. In the new challenge to New York’s elimination of non-medical exemptions to the vaccine mandate, the Court refused to issue any restraining order at this time, so the law will continue in effect. It may take months, if not years, for final decision to be rendered as the proceeding wends its way through trial and appellate courts. But the arguments to be advanced had the roots in cases going back over a century.