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Judge denies order letting unvaccinated kids go to school

By MARY ESCHAugust 26, 2019
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A woman prays while attorneys argue during a hearing challenging the constitutionality of the state legislature's repeal of the religious exemption to vaccination on behalf of New York state families who held lawful religious exemptions, during a rally outside the Albany County Courthouse Wednesday, Aug. 14, 2019, in Albany, N.Y. (AP Photo/Hans Pennink)
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A woman prays while attorneys argue during a hearing challenging the constitutionality of the state legislature's repeal of the religious exemption to vaccination on behalf of New York state families who held lawful religious exemptions, during a rally outside the Albany County Courthouse Wednesday, Aug. 14, 2019, in Albany, N.Y. (AP Photo/Hans Pennink)

ALBANY, N.Y. (AP) — A civil rights lawyer representing parents opposed to vaccines for their children said Monday he will appeal a judge’s decision upholding a New York state law that ended religious exemptions from vaccinations required to attend schools and day care programs.

The state Legislature repealed the religious exemption in June amid the nation’s worst measles outbreak in decades. Families who previously held religious exemptions sued, arguing the repeal action was unconstitutional because it violated rights of religious expression.

State Supreme Court Judge Denise Hartman denied an injunction against the law Friday, citing extensive legal precedent supporting compulsory vaccination laws. She quoted a 1944 U.S. Supreme Court ruling saying “The right to practice religion does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”

“We will seek a hearing as promptly as possible” in the mid-level Appellate Division of state Supreme Court, attorney Michael Sussman said via email Monday.

Hartman said hundreds of affidavits from parents established the “potential for irreparable harm” their families will suffer if the requested injunction was denied, forcing them to home-school, move to another state or violate their religious beliefs by having their children vaccinated. But she said allowing the religious exemption to stand would also cause harm by increasing the risk of disease for those who are unvaccinated for medical reasons or because they are too young.

“This law will help protect New Yorkers from experiencing any additional public health crises, which is why we vigorously defended it,” state Attorney General Letitia James said in a statement Monday.

More than 1,000 measles cases have been confirmed in New York since last fall, with the majority in Orthodox Jewish communities in New York City and its suburbs. The state Health Department recommends a vaccination rate of at least 95% to maintain community immunity, but some schools have had rates far below that.

New York still allows exemption from vaccines for medical reasons such as a weakened immune system. But earlier this month, the Health Department tightened rules for granting medical exemptions in an effort to avoid what happened in California. In the two years after that state ended philosophical exemptions in 2015, the rate of medical exemptions soared and there were reports of doctors advertising exemptions online for a fee, according to a study published in the journal Pediatrics.

The school year begins on Sept. 5 in New York state. Under state law, children who don’t have required immunizations or valid medical exemptions must receive the first dose within 14 days of starting school and must have appointments for their next dose within 30 days.

Parents opposed to mandatory vaccination crowded the courthouse and surrounding streets in Albany when Hartman heard arguments on Aug. 14. Some said they would home-school their children if Hartman didn’t issue an injunction allowing religious exemptions to stand.

“I will not go against what my god is telling me to do,” said Jina Gentry of Buffalo, whose four children, age 1 to 7, are unvaccinated.

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