Last month in the case of Phillips v. New York, a federal judge upheld a New York City policy barring unvaccinated children from schools where a vaccine-preventable illness has been diagnosed. The case received a lot of attention from the media, including the New York Times and Slate. But these articles don’t say much about what really happened in the case. Since the case dealt with the same kinds of arguments many anti-vax parents make, I went through it to acquaint myself with the law. Since I was reading up on it anyway it might be useful or interesting to other people to see how a case like that works. Bear in mind that this is a broad-strokes explanation, and I’m going to oversimplify some of the legal principles. But if you’re curious how the sausage is made, read on.
New York State requires that schoolchildren be vaccinated. Like almost every state, though, there is an exception for parents who say that vaccination is against their religion. The plaintiffs in this case are three parents, of three separate kids, who asked for those exemptions: Nicole Phillips, Fabian Mendoza-Vaca, and Dina Check. But even if you have an exemption, a New York school can exclude an unvaccinated kid if a vaccine-preventable disease shows up among its students. If a school sees a case of measles, for example, the Daily News reports that it can exclude unvaccinated kids from class for 18 days or more.
Phillips and Mendoza-Vaca both had lawful religious exemptions for their kids, and they certainly talk the talk. The Daily News quoted Phillips as saying, “We don’t want anything being put into our bodies at all . . . . . We’d rather rely on our natural immune system and our faith in God.” Mendoza-Vaca was a little more direct. He claimed that “resorting to vaccinations demonstrates a lack of faith in God, which would anger God and therefore be sacrilegious.” So they can send their kids to public school unvaccinated for the most part. But despite their exemptions, once cases of chickenpox showed up in their schools New York ordered them to stay home.
(Check’s case is a little different. Her child did not have a religious exemption; she says she had one for a while, but that it was “revoked” after a clerical error. The same basic analysis applied to her claims, so it got lumped in with Phillips’s and Mendoza-Vaca’s.)
So there were three plaintiffs in this case: Phillips, Mendoza-Vaca, and Check. They sued the State of New York under state and federal law, complaining that their kids were unjustly excluded from school because they weren’t vaccinated. The case bounced around for a while in the normal way, until the judge dismissed it June 2014. (Lots of cases move faster or slower; a little over a year seems pretty normal to me, although I’ve never practiced in New York.)
You can read the court’s ruling for yourself here, and if you’re interested in these issues you should try it. Reading legal opinions can be as difficult as reading research papers if you’ve never done it, but this one is just about five pages long and pretty simple.
There was no trial in this case. Courts use trials to determine who’s telling the truth and what the facts of the case are. In this case, the court dismissed the lawsuit before it got to the trial. Instead it reviewed the complaint and decided that, even if the plaintiffs were right about every disputed fact, the law didn’t support their claims. To do that, it had to go through each of their claims one by one and explain why they were wrong under the law.
Freedom of Religion
Under the First Amendment, the government can’t prohibit you from freely practicing your religion (with certain exceptions). The plaintiffs claimed that the government violated the First Amendment when it forced them to explain their religious beliefs to get an exemption in the first place, let an “unqualified” school official determine whether to grant that exemption, then kept their kids out of school anyway.
The court shot these arguments down right off the bat. It cited an important Supreme Court case from 1905, Jacobson v. Massachusetts. It’s not very common for a trial court like this one to cite a case that’s more than a hundred years old, but here, there just aren’t newer cases on the same subject (at least, from the Supreme Court). Jacobson was about a minister who refused the smallpox vaccine during an outbreak. His objections were about vaccine safety, not his own religious convictions, but the Supreme Court talked about the basic principle of when individual liberties can trump public policy.
The Phillips court wrote that Jacobson “strongly suggested that religious objectors are not constitutionally exempt from vaccinations.” This is referring to language in Jacobson that points out that individual rights are not absolute. That’s not a controversial point—we all understand that even though the First Amendment protects our freedom of speech, we can’t yell “Fire!” in a crowded theater. And even if someone honestly believed they had a religious obligation to steal or kill, the law wouldn’t permit them to exercise that religion freely. Phillips also cited other New York courts that have come to the same conclusion.
So the Phillips court dismissed the plaintiffs’ first amendment claims, on the grounds that their right to practice their religion freely doesn’t extend to letting their children attend school unvaccinated. This decision was in line with the precedent, from the century-old Jacobson to other New York cases decided this decade.
Interestingly, you may have read about the Hobby Lobby case recently. That case dealt with the Religious Freedom Restoration Act, which can make it much easier for plaintiffs to win First Amendment arguments like this. But the RFRA applies to the federal government, and the defendant in this case was the State of New York. If the federal government had been the ones keeping these kids out of school, I think the plaintiffs would still have lost, but it would have been a closer call.
Then the court turned to the plaintiffs’ “substantive due process” claims. Substantive due process is complicated. It comes from language in the Constitution that prohibits the government from depriving us of “life, liberty, or property, without due process of law.” “Due process” depends on what’s being taken away. If the government wants to fine you $5 for a parking violation, you aren’t Constitutionally entitled to very much process. If the government tried to tattoo “BAD PARKER” on your forehead, courts would require much, much more process because the deprivation of liberty is so much worse.
The plaintiffs essentially argued that New York violated their substantive due process rights by trying to deprive them of control over their children’s health. But the appellate courts that control the law in New York, including the Supreme Court, have held that vaccination programs aren’t a violation of substantive due process rights. This was inevitable, and I think the plaintiffs knew it. They apparently argued “that Jacobson is bad law” asked the court “to overturn the Supreme Court decision.” That’s impossible—trial courts are bound by Supreme Court precedent, and when it’s on-point and hasn’t been called into question they just can’t overturn it. For the plaintiffs to make an argument like that, they understood that their odds of winning this claim were miniscule.
It’s the right outcome anyway. Although the analysis is much more complicated than this, essentially the government has to show that it’s adopting the least restrictive means necessary to accomplishing a necessary goal. Widespread immunization is necessary for the public safety and health, and the means here are not very restrictive: parents can choose not to vaccine their kids, but as a result those kids are temporarily barred from schools where someone has contracted a vaccine-preventable disease. It would be one thing if the government were holding kids down and injecting them, or shipping them to Gitmo for not getting flu shots. Since the government was both following a minimalist path to accomplishing a critical goal and giving the plaintiffs plenty of due process (the chance to file for exemptions and appeal them, for example) this claim would have failed even if the Supreme Court hadn’t shut it down in 1905.
The plaintiffs also claimed that New York was violating the Constitution by treating them differently from other people—what’s called an “equal protection” claim. To win a claim like this, you typically have to show that either that the government doesn’t have a rational reason for treating you differently from someone else, or else that you’re part of a “protected class.” The plaintiffs in this case didn’t do either. This is also a very weak claim—“unvaccinated kids and their parents” isn’t a protected class, and the government obviously has a rational reason not to let unvaccinated kids into a public school where some other student has already come down with a vaccine-preventable disease.
The Ninth Amendment
Finally, the plaintiffs asserted a claim under the Ninth Amendment in the Bill of Rights. That’s the one that says, in its entirety, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” There has been a lot of debate over how to interpret it, but the plaintiffs argued that it gives them a right to refuse vaccination for any reason they might have and still attend public school. This is a particularly weak argument; the Ninth Amendment doesn’t turn our preferences into rights. It’s almost as if I argued that I have a Constitutional to build a nuclear weapon in my basement because the Constitution doesn’t say otherwise. The Phillips court rightly rejected this claim, and I doubt anyone—including the plaintiffs’ attorneys—was surprised. (There’s nothing wrong with making a long shot argument in court, so this isn’t meant as any kind of criticism.)
The State Law Claims
And that’s it as far as the opinion goes. It doesn’t discuss the plaintiffs’ state law claims, only the ones brought under the US Constitution. That’s because the court didn’t have jurisdiction over state law claims once the federal claims were dismissed—those have to go to a state court. I have no idea how strong the state-level claims are, but I suspect not very; the federal claims were pretty weak, and I doubt the plaintiffs would have mixed them in with the state claims if those were stronger. But that’s just a guess. The plaintiffs could surprise us by refiling their lawsuit and winning in state court. But I wouldn’t hold my breath.
So that’s Phillips v. New York. The media has been portraying it as a very significant case, but frankly I don’t think it is. None of these conclusions were new, and none of them should have been unexpected. As I said, this was a pretty casual writeup—I’m sure I’ve done some real injustices in trying to explain the underlying law in a few sentences for each claim. If you see any major mistakes, please let me know by email or in the comments.
If you’re interested in whether the government can force people to get vaccinated, I strongly recommend “Towards a Twenty-First-Century Jacobson v. Massachusetts,” a student note that the Harvard Law Review published a few years ago.