New York's recently enacted law that barred parents from citing religious concerns to avoid having their children vaccinated before attending school has been upheld as constitutional by a state judge in Albany, who tossed a lawsuit against the measure this week.

Albany County Supreme Court Justice Denise Hartman, in a decision not previously reported, rejected arguments that the law infringed on multiple parts of the U.S. Constitution.

"The challenged repeal is not unconstitutional," Hartman said.

It's the latest development in the legal challenge brought earlier this year against the law, which was approved by the Legislature in June in response to an outbreak of the measles in Rockland County and areas of New York City. 

The law, as written, eliminated the ability for parents to send their children to school or day care unvaccinated, unless they've secured an exemption on medical grounds. 

Parents were previously allowed to seek an exemption to vaccines for their children on religious grounds, and many received them. Lawmakers in Albany approved the measure to avoid future outbreaks of a disease that could be prevented through inoculation.

It was challenged in court by more than four dozen families, who were represented by attorneys Michael Sussman and Robert F. Kennedy Jr. The pair previously failed to secure a preliminary injunction against the law ahead of the new school year.

That means that, for the past three months, children whose parents have chosen not to have them vaccinated have not been allowed in school or day care. The law applies to both public and private schools. Sussman said thousands of children have been affected.

Sussman said he's speaking with the families involved in the litigation, as well as other attorneys, about whether they'll bring an appeal to Hartman's decision.

"I am now discussing our appellate options with interested clients and other attorneys with whom I have worked," Sussman said. "I will make a timely decision on whether to appeal."

In their lawsuit, first brought in July, Sussman and Kennedy had argued that the law, which was also supported by Gov. Andrew Cuomo, was driven by religious animus, rather than concerns over public health. They also argued that it wasn't necessary to prevent a future outbreak.

Hartman, in the decision this week, rejected each of their arguments, first pointing to how the law was crafted, and the legal precedent that appeared to support it.

"Here, the overall history and context of New York's vaccination law, the series of events leading up to the repeal of the religious exemption, and the legislative history of the repeal, all lead to the inexorable conclusion that the repeal was driven by public health concerns, not religious animus," Hartman wrote.

Sussman and Kennedy had previously pointed to a collection of public statements from members of the Legislature to argue that religious animus was involved. Lawmakers had, at times, been critical of parents who sought a religious exemption for their children.

Hartman said she didn't perceive the cited comments as showing any particular animus toward religion, but that, even if she did, that wouldn't have been enough to strike down the law.

"Here the comments of some legislators, even if susceptible to inferences of discriminatory animus and even taking such inferences as true, would not transmute the collective decision of the New York State Legislature and governor to repeal the religious exemption from a neutral law of general applicability to one that targets religious beliefs," Hartman wrote.

The law had actually been proposed by members of the state Legislature previously, but it had failed to gain majority support in recent years. That changed after several cases of the measles began to pop up in Rockland County and Brooklyn late last year.

Lawmakers didn't coalesce around the legislation until June, just days before they were scheduled to leave Albany for the year. Even then, some Democrats crossed party lines to vote against the measure, citing constitutional concerns.

Sussman had argued, both before Hartman in a previous hearing and in court filings, that the timing of the bill's passage showed it wasn't necessary to protect public health. By the time it was approved, the measles outbreak was well on its way to winding down.

Hartman wrote that the Legislature's choice to pass the bill months after the peak of the outbreak was just that—its choice. They had other things to deal with, she wrote. 

"The Legislature addresses many priorities each session," Hartman wrote. "The fact that the Legislature chose to address other priorities, such as the state budget, earlier in the same session, does not detract from the public health objective of the proposed repeal legislation."

Courts have routinely held that states don't have to wait for vaccination rates to plummet, or for an outbreak of a certain disease, to approve laws requiring mandatory vaccinations in order for children to attend school, she wrote.

Hartman also rejected an argument that the Legislature acted unlawfully when it chose not to hold public hearings on the bill before approving it in June. That wasn't necessary, she wrote.

"It was not required to hold factfinding hearings and debates about the science and medicine of vaccinations and the impacts on those with sincerely held religious beliefs before enacting the repeal," she wrote.

New York Attorney General Letitia James, whose office represented the state against the challenge, defended the law Friday and said she was pleased with Hartman's decision.

"Vaccines ensure the health and safety of our children, our families, and our communities. This law will help protect New Yorkers from experiencing any additional public health crises, which is why we vigorously defended it," James said. "We are pleased with this decision from the court."

Hartman's decision doesn't put an end to the state's legal troubles over the law.

Jocelyn Sullivan-Knapp, a mother who had previously obtained a religious exemption for her two children to attend school without having to get vaccinated, is also challenging the law in Steuben County.

Her attorney, James Mermigis from Nassau County, recently asked the judge presiding over that case to hold a second hearing on whether the state should be barred from enforcing the law while he pursues the litigation. 

The judge, Acting Supreme Court Justice Robert Wiggins, hasn't yet decided on that motion, but has previously been critical of the Legislature over the law in ways that Hartman was not.

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