State lawmakers in New York said they weren't worried about a legal challenge that could arise from a proposed law that would remove non-medical exemptions for vaccines for those attending public schools in response to an outbreak of measles in Rockland County and parts of New York City.

The response comes as Gov. Andrew Cuomo, when asked about the legislation earlier this month, called the idea of removing non-medical exemptions for vaccines “legally questionable” while decrying the spread of the disease in areas downstate.

“Respectfully, the governor is wrong,” said State Sen. Brad Hoylman, D-Manhattan, who sponsors the bill. “There is long case law supporting eliminating non-medical exemptions … having risen all the way to the [U.S.] Supreme Court in a case called Jacobson.”

The U.S. Supreme Court in Jacobson v. Massachusetts, decided in 1905, held that Massachusetts' compulsory vaccination law was a lawful exercise of its police power to protect public health and safety and therefore didn't violate Jacobson's 14th Amendment liberty interest.

“So there is strong precedent for this type of legislation,” Hoylman said. “In fact, a circuit court in New York just five years ago said New York's Legislature could eliminate the non-medical exemptions if it chose to do so, and that it would be a constitutional action. We feel we are on very firm grounds.”

The case Hoylman referred to was between a few parents who challenged the New York's requirement to have their children vaccinated in order to attend public school. They had applied for religious exemptions to those vaccinations but were either denied or were subject to a different section of state law that prohibited them from being in school unvaccinated.

The Second Circuit U.S. Court of Appeals said in a decision on the case in 2015 that, not only was the state's law constitutional, the Legislature could go further if it wanted to.

“New York could constitutionally require that all children be vaccinated in order to attend public school,” the appellate court wrote. “New York law goes beyond what the Constitution requires by allowing an exemption for parents with genuine and sincere religious beliefs.”

That's what the bill, from Hoylman and Assemblyman Jeffrey Dinowitz, D-Bronx, aims to do. The legislation would remove all non-medical exemptions for vaccinations in New York in order for children to attend public school. The state currently only has a religious exemption, aside from medical exemptions.

The legislation hasn't moved since it was introduced in January. It's been referred to the health committee in both chambers, which are currently controlled by Democrats after last year's elections. Hoylman said he's had conversations with his colleagues in the Senate about the bill in recent weeks, and that he anticipates movement on the proposal.

“We've had discussions in the Senate that have been very positive, I think my colleagues would agree,” Hoylman said. “I'm very hopeful that finally we have focused and the herd mentality around vaccinations is giving way to herd immunity because the anti-vaxxing forces are very loud and can be intimidating. But we now understand the public's health is at stake here.”

Dinowitz said he's had similar conversations in his chamber and plans to work with his colleagues on the health committee to see the bill clear that important hurdle before it comes to the floor for a vote. The legislation has failed to pass the Assembly in recent years, despite the chamber being controlled by Democrats during that time.

“I'm working with my colleagues on the Health Committee, and I hope that in the very, very, very immediate future we'll have enough support on the Health Committee to report the bill out,” Dinowitz said.

The idea of mandating vaccinations against the disease has already been met with litigation in New York. A group of parents sued Rockland County after County Executive Ed Day declared a state of emergency last month that aimed to ban unvaccinated individuals under the age of 18 from being in public places. The declaration was brought after the number of measles cases in the county surged compared to recent years.

The initial declaration was struck down days after it was implemented by a state judge who said the number of cases, at the time, did not meet the definition of an epidemic under state law. That decision, which was upheld by an appellate court weeks later, rendered the initial order unenforceable.

Day said Monday that the county has now declared a new state of emergency that hasn't been challenged in court as of yet. The new order doesn't go as far as the initial declaration; it only bans people who either have measles or have been exposed to the disease from entering a public place, rather than all who are not vaccinated.

“We did not agree with [the court's decision] but the job that we have in Rockland County is not to sit on our hands,” Day said. “We've pivoted. We rearranged our effort in a matter that was not contrary to the court's commentary and we have no litigation right now. If there's litigation from anybody, we will defend ourselves as vigorously as possible.”

Day said the legislation from Hoylman and Dinowitz would support the county's efforts to fight the ongoing measles outbreak, which has resulted in more than 200 cases in the county so far. Those cases make up more than a quarter of those reported nationwide, Day said.

California had a similar outbreak more than four years ago that caused state lawmakers there to approve legislation removing non-medical exemptions for vaccinations in the state. Hoylman said New York should take the same action in wake of the growing outbreak in Rockland County and parts of New York City—and that he expects such a move to be upheld in court.

“The difference between California and New York is that California very quickly moved to eliminate all non-medical exemptions. We have yet to do that in the state of New York,” Hoylman said. “The court cases are clear, dating back to the early part of the century; you have a First Amendment right to practice your own religion, but you do not have the right to endanger your children or other people's children.”

Lawmakers have less than two months to move the legislation until they're scheduled to leave Albany for the year in June.

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