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NYC Faces Lawsuit From Families Over Measles Health Emergency Declaration

Girls play in a yeshiva schoolyard on April 9, in the Williamsburg section of Brooklyn. AP Photo: Mark Lennihan

Five parents and their children, proceeding anonymously, have taken the first steps in challenging New York City's response to a measles outbreak in a number of Brooklyn neighborhoods that are home to large Orthodox Jewish communities.

In a suit filed Monday in Kings County Supreme Court, the parents claim the city has taken drastic, unnecessary steps over its concerns about the spread of the preventable disease while failing to account for the alleged harm vaccinations can cause.

All five of the families currently have been provided a religious exemption to vaccinations, but they say they would be subject to forced or mandated vaccination under the city's emergency orders issued earlier this month.

"There is insufficient evidence of a measles epidemic or dangerous outbreak to justify the respondents’ extraordinary measures, including forced vaccination," the complaint stated.

The Article 78 and 3001 challenges were brought against the city's Office of Health and Mental Hygiene commissioner Oxiris Barbot, after the office issued a public health emergency April 9.

During a press conference in the Williamsburg section of Brooklyn, Mayor Bill de Blasio declared the neighborhood the "epicenter of a measles outbreak" that already saw almost 300 cases diagnosed in the borough, up from only two in 2017. According to the city's health department website, as of April, 329 confirmed cases of measles have been identified in Brooklyn and Queens.

"We cannot allow this dangerous disease to make a comeback here in New York City. We have to stop it now," de Blasio said in his April 9 declaration, according to a transcription of the event provided by City Hall.

The public health emergency declaration mandates vaccines for those over six months of age that reside, work or attend school within specific zip codes located in Brooklyn. For those that remain unvaccinated, the city's Department of Health plans to issue violations and fines, the mayor stated. Schools that do not participate in actively addressing the issue could be forced to temporarily closed, he added.

"That is not a tool we want to use, but it is one we will use if we have no choice," the mayor said of the city's response.

According to the complaint, the city's measures were "arbitrary, capricious, contrary to the law and in violation of petitioners' rights under the United States Constitution and New York State law."

The complaint claims the city's "disproportionate" response to "provable factual circumstances" failed to "use the least restrictive means," such as a quarantine, to contain the outbreak, and in doing so failed to balance "the rights to individual autonomy, informed consent and free exercise of religion."

Attorney Robert Krakow represents the plaintiffs in the matter. He told the New York Law Journal that the suit wasn't a debate about the viability of vaccines, but about the response by the city.

"Measles is not small pox. It's not Ebola. It's measles," he said. "Our case is not about whether vaccines are good or bad. It's about whether the city and health department overreached issuing a mandate order that, if they wished to, could force people to have vaccines."

The complaint claims that forcing vaccinations using the measles, mumps and rubella combination "indisputably carries the risk of severe injury and death to some individuals."

"Under the factual circumstances of the emergency Orders, respondents have overreached their authority and have promulgated Orders that promise to fail to check the spread of measles," the complaint states. "The emergency Orders, moreover, inject into the community an intervention, compelled MMR vaccination, that can itself cause harm."

Krakow said that one of the families in the suit faced a $1,000 fine for each of their two children who were not yet vaccinated. Rather than face the fine, Krakow said the parents relented.

"That's compulsion, and that's equivalent to force. The city should not be doing that," he said

Krakow went on to note that the issue had focused on the Orthodox Jewish community in Williamsburg and elsewhere in Brooklyn. However, two of five the five families involved in the case were not themselves Jewish, he said.

In a statement, city Law Department spokesman Nick Paolucci said the city is confident its orders are "within the Health Commissioner’s authority to address the very serious danger presented by this measles outbreak."

"The U.S. Supreme Court has upheld the right of states and localities to mandate vaccines to stop outbreaks," Paolucci said. “We are in the midst of an epidemic that was preventable. Our attempts at education and persuasion have failed to stop the spread of measles. We had to take this additional action to fulfill our obligation to ensure that individuals do not continue to put the health of others at risk."

The complaint seeks injunctive relief from the city's efforts. However, on Monday, the judge assigned to the suit, Justice Lawrence Knipel, denied an initial temporary restraining order. The parties are due back in court Thursday, when the preliminary injunction issue is expected to be taken up.

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