Editor’s Note: Dorit Reiss is the James Edgar Hervey Professor of Law at the University of California, Hastings College of the Law. The opinions expressed in this commentary are solely those of the author. View more opinion at CNN.
The top official of Rockland County, New York, took a major step this week in response to a serious measles outbreak – he banned unvaccinated children from public places for 30 days.
The ban is highly unusual, but as an emergency measure to protect both the public and the children affected by it, it is legal and ethical.
It is also wise.
County Executive Ed Day made it clear the police will not be demanding anyone’s vaccination records, but he said violating parents could be criminally charged with a misdemeanor and vulnerable to fines and jail time.
Rockland’s measles outbreak started last year and has expanded to 157 cases, almost all of them unvaccinated minors. Health authorities took a number of steps to limit the outbreak.
They engaged in public information campaigns and held extensive vaccination clinics covering thousands of people. They ordered schools to exclude unvaccinated minors – including schools that have not seen cases. In one case, this was challenged in federal court, and a judge denied a request for a temporary injunction ordering the school to allow the students back in.
At a press conference announcing the ban Tuesday, Day said most county residents were cooperating with health authorities but that a minority were not. Some schools had received warnings and fines for allowing unvaccinated children to continue to attend.
And so when ample warnings went unheeded by some, the county took sensible – not radical – action. It had to.
Measles is a serious disease that can lead to severe complications or death. It is extremely contagious – the most contagious virus known. There is an extremely effective, safe vaccine against measles. The Rockland outbreak is ongoing because people are not using it – and they are not using it generally, because of incorrect anti-vaccine claims.
Unvaccinated children out in public are at real risk of getting the disease in Rockland, and if they get infected, they are at real risk of transmitting it to others, including vulnerable young infants, pregnant women and people with serious medical conditions, all of which are at even higher risk of complications.
That is why the emergency declaration prohibits parents from allowing children from 6 months to 18 years old to enter public places unless they are vaccinated against measles, already immune or have a medical exemption from vaccines. The ban ends April 25. Parents are allowed to take children to medical care as long as they call ahead and alert the facility.
Why is this legal?
The ban fits within principles of public health law and ethics. It limits personal autonomy – but it limits it in the context of a clear threat, and after previous lesser measures were used.
It is not a first step; the county started with education efforts and offering vaccines, and tried several different less coercive measures.
It is not discriminatory; it applies to all unvaccinated minors, regardless of religion or ethnicity. While much of the affected community are Jewish Orthodox, not all of it is – for example, the school whose students sued after being banned is a Waldorf school, not a Jewish Yeshiva.
And the distinctions it makes are reasonable: Infants under 6 months and those with medical exemptions are unvaccinated by necessity, and are situated differently than those whose parents chose not to vaccinate because of anti-vaccine misinformation.
Adults are also not similar to children: The county could extend the ban to adults, but it was not impermissible to distinguish between adults and children.
Public health law, when looking at measures that restrict autonomy – such as quarantines or the ban – generally balances the private interests affected with the public health, and allows reasonable measures to protect public health.
If the ban were enforced by stopping people, I would have real concerns that it may be enforced with a religious bias. As it is, when enforcement is after the fact, I do not: If parents consciously choose to create a risk for their children and others by leaving them unvaccinated and taking them out in public in the middle of an outbreak, it is fair to impose consequences.
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Rockland County has seen an extensive and ongoing outbreak of a serious preventable disease, brought by anti-vaccine misinformation. Its authorities are working in multiple ways to stop the threat and protect its residents.
The ban is another way to do so, and it is a reasonable one.