Legal Challenges to Public Health Orders During the Recent Measles Outbreaks

May 02, 2019|1:25 p.m.| ASTHO Staff

Courts can play a big role during outbreaks of vaccine-preventable diseases. While state and local public health authorities are established legislatively and exercised by the executive branch through state and local health agencies, the judicial branch is sometimes called upon to review the use of public health authority. Recent legal challenges to public health orders in New York reveal some of the issues public health can face before a court during a disease outbreak and illustrate the ever-present need for public health agencies to exhibit legal preparedness.

So far this year CDC has reported 704 measles cases throughout the country. This exceeds the 667 cases reported for all of 2014 and is the greatest number of measles cases since 1994, which saw 963 cases. Nearly half of states have experienced measles this year, with California, Georgia, Maryland, Michigan, New York, and New Jersey facing ongoing outbreaks (i.e., three or more cases) and 16 other states—Arizona, Colorado, Connecticut, Florida, Illinois, Indiana, Iowa, Kentucky, Massachusetts, Missouri, Nevada, New Hampshire, Oregon, Texas, Tennessee, and Washington—having confirmed cases at other points of the year.

In response to these outbreaks, state and local public health agencies are providing public awareness about the dangers of measles, educating people about how the disease is transmitted, increasing the availability of measles vaccines, and alerting those who may be exposed to the disease. Some jurisdictions, such as Los Angeles County in California, are responding by issuing quarantine orders and temporarily limiting the movement of those who may have been exposed to the disease.

Rockland County in New York has also issued orders restricting the movement of certain individuals, and New York City ordered anyone within a certain area who is unvaccinated to get vaccinated or be subject to a fine. In both Rockland County and New York City, lawsuits were filed challenging the orders. Below is a brief review of those legal challenges.

Rockland County Exclusion Orders

In March, a group of parents in Rockland County filed a lawsuit on behalf of their children in federal court against the local health department alleging that the health commissioner’s orders excluding unvaccinated children from school violated federal law. The parents requested a temporary restraining order and temporary injunction of the order. However, after hearing arguments from the parties attorneys and considering the evidence, the court denied their request and left the commissioner’s order in place. In finding that the parents were unlikely to succeed in their claims, the court stated that the parents were unable to show that “the county health department lacks the ability to exclude unvaccinated children from schools in a community facing an unprecedented measles outbreak, such as the one currently being experienced in Rockland County.”

In addition to the federal case, a group of Rockland parents, including some from the federal lawsuit, brought suit in a state court after the Rockland County Executive declared an emergency and ordered all unvaccinated children be excluded from any “place of public assembly” within the county (i.e., any place where more than 10 people congregate, including schools). The parents in this case also requested a temporary injunction against the county’s order which the state court granted.

In granting the temporary injunction, the court reviewed the state law authorizing the county executive to declare an emergency which allows an emergency declaration to be issued during a “disaster.” While the statute defines “disaster” to include “epidemic,” the term “epidemic” is left undefined. Rather than relying on what public health practice refers to as an epidemic (i.e., an increase, often sudden, in the number of cases of a disease above what is normally expected in that population in that area), the court turned to Merriam-Webster for the definition of “epidemic,” which is “an outbreak of disease that spreads quickly and affects many individuals at the same time" and "affecting or tending to affect a disproportionately large number of individuals within a population, community, or region at the same time." Based on this, the court held that 166 measles cases over a six month period among a population of 330,000 (i.e., 0.05% of the population) did not appear to “rise to the level of an ‘epidemic’ as included in the definition of ‘disaster’ under the law” and that the county’s order “may have been misplaced.”

This case is scheduled for another hearing on May 3.

New York City Measles Emergency Order

On April 9, the New York City health commissioner issued an emergency order in response to a measles outbreak. The order requires anyone who lives, works, or resides within four select ZIP code areas who has not received the MMR vaccine within 48 hours of the order’s signing to be vaccinated, unless they can show they have immunity against measles or are medically exempt. Those who do not comply with the order can receive a misdemeanor violation and monetary fine. Shortly after the order, a group of parents filed a lawsuit in state court and requested a temporary restraining order.

After conducting a hearing, the state court denied the temporary restraining order and dismissed the case. In making its decision, the court concluded that a measles epidemic existed warranting the public health order and that the actions proposed under the order were lawful. The court also took exception to the way the court in Rockland County defined “epidemic” and stated that “[i]f one were to wait till a significant percentage of overall population were infected [with measles], disaster would inevitably ensue.”

While illustrating the legal challenges public health agencies may face in response to emergency orders issued during a disease outbreak, the cases in New York also show importance of public health agencies being legally prepared to handle these challenges and ensuring that public health law competencies are maintained throughout the agency. Since outbreak responses happen quickly and can be subject rapid change, health agencies should work with their legal counsel to establish templates for court filings, review roles and responsibilities, and perhaps conduct a table top exercise with scenarios like those in New York. ASTHO will continue to assist members by alerting them to these legal challenges and providing their legal counsel access to court filings so they are better prepared.

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