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Q&A: Legal implications of Rockland County’s state of emergency over measles outbreak

Brian Dean Abramson

In December 2018, schools located in Rockland County, New York, determined that unvaccinated children would not be allowed to attend classes as a result of an ongoing measles outbreak. A federal judge ruled in favor of the schools earlier this month.

As of March 26, 153 confirmed measles cases have been reported in the county. Nearly all cases have been reported in children. In response to the outbreak, health officials declared a state of emergency this week, and they have banned all unvaccinated people aged 18 years and younger from entering public places for 30 days or until they get vaccinated.

Infectious Diseases in Children spoke with Brian Dean Abramson, Esq., LL.M., vaccine law expert and author of Vaccine, Vaccination and Immunization Law, to better understand why this decision was made and its legal and public health implications. – by Katherine Bortz

Q: Has a state of emergency like this happened before?

A: In terms of a general restriction on unvaccinated people in public places, it is not something that has happened recently, but it is something that has happened frequently in American history. These were not necessarily made with respect to unvaccinated populations.

Specifically, when outbreaks occurred when smallpox was prevalent, there were certainly periods when the entire population was instructed to stay out of public places. There were very strict regimens set up, for example, with the polio epidemic in New York in 1916 and when Spanish influenza was prevalent in 1918. There were very aggressive public measures taken to prevent people from congregating in public places where the disease might spread.

It is a common thing, it is legal and it is something that has been determined to be well within the police power of the state to regulate public gatherings during a time of an outbreak. Certainly, the power to regulate the presence of unvaccinated persons during outbreaks would fall within that. It is sort of a smaller version of a general quarantine.

Q: Do you think that the response to the outbreak in Rockland was appropriate?

A: I am sure that the public officials in Rockland have more accurate and more direct, up-to-date information than I have. My awareness of the situation is that there have been measles cases reported. Of course, we know from history that measles can be a deadly disease in a small number of cases. Even when it’s not deadly, it can lead to blindness, paralysis or brain damage in extreme cases. Where it does not lead to the direst consequences, it can still cause someone to become very ill for a period of time. It is a very uncomfortable thing for anyone to go through.

The state has not just the authority but an obligation to protect its citizens from those kinds of dangers. Presuming that the outbreak has presented to a degree where it is reasonable to think that people who are not vaccinated may be exposed to measles and may suffer those consequences, it is entirely reasonable to take measures necessary to protect them from that.

Q: Can an effective legal argument be made against barring unvaccinated children from public places ?

A: The counterargument would be that the general principle that people have freedom of movement and the freedom to gather as they wish should require the demonstration of a higher degree of immediate danger before these rights can be curtailed. We voluntarily expose ourselves to a certain possibility of danger every time we leave our home — some number of people, including children, are injured every day from things like car accidents, bee stings, dog bites, and exposure to pathogens for which there is no vaccine. General quarantines along the lines of the one imposed here have rarely been put in place in recent decades, and the authority granted to public health officials to impose them could reasonably be revisited in light of medical advances reducing the threat posed by specific diseases. It could further be argued that the law already sufficiently provides for the protection of children by allowing their exclusion from the schools, where a threat of infection would be most highly concentrated.

Q: How might the quarantine be enforced during the emergency? Is this an effective strategy to reduce exposure?

A: It is very difficult. It is a free country where people can generally move about as they please. One of the most significant enforcement mechanisms is that there would be some kind of ramification or penalty to parents who brought unvaccinated children out to places where children became infected with measles. It would be direct proof that they were unvaccinated and taken some place where there was risk of exposure.

I think people generally follow the law when it is made known that unvaccinated persons are being required to remain out of public places. There may be some grumbling, and there may be some people who intentionally defy that and take their unvaccinated children around despite that. But I think most people — if they are aware that this is a legal measure — will follow the law with respect to that measure.

In some cases, this may spur parents to move vaccination to the top of their priority list and get their kids vaccinated.

I should mention that the place where children congregate the most is in school. We have a system set up in this country where there are exemptions in every state for medical purposes and most states for certain other reasons. The function of the exemption is to say that you can still have your child attend school even if they are not vaccinated. But, in pretty much every state that has that kind of system, there are also exceptions to the exemptions. One is if there is an actual outbreak of a vaccine-preventable disease for which people are not vaccinated. The school can exclude unvaccinated children during the period of that outbreak.

For children who are unvaccinated for medical reasons, parents have most likely gone through the trouble of finding out what their child’s medical circumstances are and will probably not want to expose their child to the measles virus any more than they would want to expose their child to the vaccine because of allergy or other medical conditions. For parents who have philosophical or religious exemptions, that’s basically up to whether they are going to obey the law.

With respect to the schools, of course they do have vaccination records for their students, so that is a place where it will be much easier to enforce the local government’s determination that unvaccinated people should stay out of public places for the time being. When schools inform parents that their records indicate that their child is not vaccinated, and they are in a state where unvaccinated children are prohibited from coming to public places, it is a pretty good signal to the parents that they should not be bringing their child to any other public places either.

Disclosure: Abramson reports no relevant financial disclosures.