Phillips ex rel. B.P. v. City of N.Y.

Decision Date07 January 2015
Docket NumberDocket No. 14–2156–cv.
Citation775 F.3d 538
PartiesNicole PHILLIPS, individually and on behalf of B.P. and S.P., minors, Dina Check, on behalf of minor M.C., Fabian Mendoza–Vaca, individually and on behalf of M.M. and V.M., minors, Plaintiffs–Appellants, v. CITY OF NEW YORK, Eric T. Schneiderman, in his official capacity as Attorney General, State of New York, Dr. Nirav R. Shah, in his official capacity as Commissioner, New York State Department of Health, New York City Department of Education, Defendants–Appellees.
CourtU.S. Court of Appeals — Second Circuit

OPINION TEXT STARTS HERE

Affirmed. Patricia Finn, Patricia Finn, Attorney, P.C., Piermont, NY, for PlaintiffsAppellants.

James Andrew Kent, Assistant Solicitor General (Steven C. Wu, Deputy Solicitor General, on the brief) on behalf of Barbara D. Underwood, Solicitor General, for State DefendantsAppellees.

Jane L. Gordon on behalf of Zachary W. Carter, Corporation Counsel of the City of New York, for Municipal DefendantsAppellees.

Before: LYNCH and CHIN, Circuit Judges, and KORMAN, District Judge. **PER CURIAM:

Plaintiffs brought this action challenging on constitutional grounds New York State's requirement that all children be vaccinated in order to attend public school. Plaintiffs argued that the statutory vaccination requirement, which is subject to medical and religious exemptions, violates their substantive due process rights, the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Ninth Amendment, and both state and municipal law. On the same grounds, plaintiffs argued that a state regulation permitting school officials to temporarily exclude from school students who are exempted from the vaccination requirement during an outbreak of a vaccine-preventable disease is unconstitutional. Defendants moved to dismiss or for summary judgment. The district court (William F. Kuntz II, Judge ) granted defendants' motions. Because we conclude that the statute and regulation are a constitutionally permissible exercise of the State's police power and do not infringe on the free exercise of religion, and we determine that plaintiffs' remaining arguments are either meritless or waived, we affirm.

2. Check appealed this denial, and, after an interview with a different DOE official, her appeal was dismissed. Although an additional appeal to the Commissioner of Education was available, Check chose not to appeal and instead commenced this litigation.

The district court (Sandra L. Townes, Judge ) referred the preliminary injunction application to Magistrate Judge Lois Bloom, who held a hearing at which Check testified regarding the purported religious basis for her objections to vaccines.3 Check testified that she is Catholic and stated, “How I treat my daughter's health and her well-being is strictly by the word of God.” (Joint App'x 136.) Check also testified, however, that she believed that vaccination “could hurt my daughter. It could kill her. It could put her into anaphylactic shock. It could cause any number of things.” ( Id. at 146.) On cross-examination, Check testified that she did not know of any tenets of Catholicism that prohibited vaccinations. She also detailed several adverse reactions that M.C. had had to vaccinations before Check determined not to subject her to any further inoculation, and stated that these bad reactions led Check to ask God for guidance and protection.

The Magistrate Judge issued a Report and Recommendation recommending that the request for a preliminary injunction be denied. She found that Check's testimony demonstrated that her views on vaccination were primarily health-related and did not constitute a genuine and sincere religious belief. The Magistrate Judge noted especially that plaintiff's testimony that she did not adopt her views opposing vaccination until she believed that immunization jeopardized her daughter's health is compelling evidence that plaintiff's refusal to immunize her child is based on medical considerations and not religious beliefs.” ( Id. at 211.) The district court adopted the Report and Recommendation and denied injunctive relief.4

Check's case was subsequently consolidated with the Phillips and Mendoza–Vaca cases before Judge Kuntz. Plaintiffs thereafter jointly filed an amended complaint, alleging that the State's mandatory vaccination requirement and the regulation permitting temporary exclusion of exempted schoolchildren during a disease outbreak were unconstitutional. Specifically, plaintiffs alleged that the statute and regulation violated the Free Exercise Clause of the First Amendment, their rights to substantive due process under the Fourteenth Amendment, the Ninth Amendment, the Equal Protection Clause, and state and municipal law. The municipal defendants moved to dismiss or for summary judgment, and the State defendants moved to dismiss. The district court granted the motions on June 5, 2014. Phillips v. City of New York, Nos. 12–cv–98 (WFK)(LB), 12–cv–237 (WFK)(LB), 13–cv–791 (WFK)(LB), 27 F.Supp.3d 310, 2014 WL 2547584 (E.D.N.Y. June 5, 2014). Plaintiffs filed their Notice of Appeal five days later, on June 10, 2014. Nine days after that, plaintiffs moved for reconsideration in the district court. The district court denied the motion, holding that because plaintiffs had already filed their Notice of Appeal, it no longer had jurisdiction.

DISCUSSION

We review de novo the district court's grant of a motion to dismiss, accepting as true all facts alleged in the complaint and drawing all reasonable inferences in favor of the plaintiff. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir.2007).

I. Substantive Due Process

Plaintiffs argue that New York's mandatory vaccination requirement violates substantive due process. This argument is foreclosed by the Supreme Court's decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905). In that case, the plaintiff challenged Massachusetts's compulsory vaccination law under the Fourteenth Amendment. The Supreme Court held that mandatory vaccination was within the State's police power. Id. at 25–27, 25 S.Ct. 358; see Zucht v. King, 260 U.S. 174, 176, 43 S.Ct. 24, 67 L.Ed. 194 (1922) (Jacobson ... settled that it is within the police power of a state to provide for compulsory vaccination.”). The Court rejected the claim that the individual liberty guaranteed by the Constitution overcame the State's judgment that mandatory vaccination was in the interest of the population as a whole. Jacobson, 197 U.S. at 38, 25 S.Ct. 358. Plaintiffs argue that a growing body of scientific evidence demonstrates that vaccines cause more harm to society than good, but as Jacobson made clear, that is a determination for the legislature, not the individual objectors. See id. at 37–38, 25 S.Ct. 358. 5 Plaintiffs' substantive due process challenge to the mandatory vaccination regime is therefore no more compelling than Jacobson's was more than a century ago. See Caviezel v. Great Neck Pub. Schs., 500 Fed.Appx. 16, 19 (2d Cir.2012) (summary order) (rejecting substantive due process challenge to vaccination mandate based on Jacobson ).

II. Free Exercise of Religion

Plaintiffs next argue that the temporary exclusion from school of the Phillips and Mendoza–Vaca children during the chicken pox outbreak unconstitutionally burdens their free exercise of religion.6 Jacobson did not address the free exercise of religion because, at the time it was decided, the Free Exercise Clause of the First Amendment had not yet been held to bind the states. See Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Therefore, Jacobson does not specifically control Phillips's and Mendoza–Vaca's free exercise claim. The Supreme Court has stated in persuasive dictum, however, that a parent “cannot claim freedom from compulsory vaccination for the child more than for himself on religious grounds. The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” Prince v. Massachusetts, 321 U.S. 158, 166–67, 64 S.Ct. 438, 88 L.Ed. 645 (1944). That dictum is consonant with the Court's and our precedents holding that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993); accord, Leebaert v. Harrington, 332 F.3d 134, 143–44 (2d Cir.2003) (holding that parental claims of free exercise of religion are governed by rational basis test). Accordingly, we agree with the Fourth Circuit, following the reasoning of Jacobson and Prince, that mandatory vaccination as a condition for admission to school does not violate the Free Exercise Clause. See Workman v. Mingo County Bd. of Educ., 419 Fed.Appx. 348, 353–54 (4th Cir.2011) (unpublished).

New York could constitutionally require that all children be vaccinated in order to attend public school. New York law goes beyond what the Constitution requires by allowing an exemption for parents with genuine and sincere religious beliefs. Because the State could bar Phillips's and Mendoza–Vaca's children from school altogether, a fortiori, the State's more limited exclusion during an outbreak of a vaccine-preventable disease is clearly constitutional.

III. Equal Protection

Plaintiffs argue that the mandatory vaccination provision violates their rights under the Equal Protection Clause. To the extent that plaintiffs are claiming discrimination against Catholics, that argument plainly fails because Phillips and Mendoza–Vaca are both Catholic and received religious exemptions. Plaintiffs alternatively argue that Check was treated differently than her...

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