By Jamie Ducharme
April 10, 2019

New York City officials on Tuesday took the unusual and dramatic step of requiring some Brooklyn residents to get vaccinated against measles, as an outbreak there continues to worsen. The controversial policy was announced just days after a New York judge halted an order in nearby Rockland County, which had previously banned all unvaccinated children from visiting public places.

Under New York City’s policy, people in four Brooklyn zip codes who resist vaccination could face fines of up to $1,000, but it’s not clear whether they could actually be compelled to get vaccinated if they continue to refuse. Health Commissioner Dr. Oxiris Barbot said those who refuse vaccination would be dealt with on a “case-by-case basis.”

These increasingly drastic actions have raised questions about how far local authorities can go to stop outbreaks — and whether it’s ethical, or even legal, to compel people to get vaccinated.

Ethically, there’s nothing wrong with requiring vaccination during times of public-health danger, says Arthur Caplan, head of the division of medical ethics at the New York University School of Medicine and director of its Vaccine Ethics Project. “If it’s spreading rapidly and you have reason to believe there are a lot unvaccinated people around, you’re justified,” Caplan says. “You can fine them, you can restrict liberty, you can quarantine.”

You cannot, however, physically force someone to get a shot they don’t want, Caplan says — ethically, you can only threaten legal, financial or similar other consequences if they do not comply.

Physically forcing vaccines is “basically administering a medical intervention that someone is saying they do not want, and that’s got a lot of law behind it saying you can’t do that,” Caplan says. “Literally forcing vaccination on someone, I can’t imagine doctors who would do it.”

Health experts widely support near-universal vaccination — with a few exceptions for young babies and people with certain medical conditions or allergies — since it’s necessary for producing levels of immunity high enough to stop disease transmission within a community. Measles, a highly contagious virus that can be prevented with vaccination, was declared eliminated from the U.S. in 2000, but pockets of vaccine skepticism have allowed it to take hold again in certain communities. The outbreaks in New York City, where 285 people have gotten sick, and Rockland County, where 173 people have gotten sick, have both involved the Orthodox Jewish community.

Caplan says those outbreaks constitute public-health crises worthy of vaccine regulations. And he says he doubts such regulations would set a precedent that could be applied to less-pressing issues.

“Do I worry about a slippery slope? No,” he says. “This country is so sensitive to personal liberty that there will be no slippery slope.” Already, Caplan says, he’s heard from anti-vaccine advocates who are planning to challenge New York City’s policy, though he says the order should stand.

John Jacobi, a professor of health law and policy at Seton Hall Law School, says that remains to be seen.

A 1905 Supreme Court ruling gave states the authority to enforce mandatory vaccination when public health demands it, and that decision holds today, Jacobi says. Mandatory vaccination is rarely used, but during a 1991 measles outbreak in Philadelphia, city officials ordered the vaccination of children from families that belonged to two fundamentalist churches that relied on faith-based healing over traditional medical care.

The legal picture gets more complicated when considering state and local laws, Jacobi says.

All 50 states require children to get certain vaccines before attending school, but the majority — including New York — currently allow parents to opt out of that standard for religious, personal or philosophical reasons. These state exemptions have been partially blamed for some of the measles outbreaks happening across the country, in areas including the Pacific Northwest. Recent past Food and Drug Administration Commissioner Dr. Scott Gottlieb even hinted at the idea of someday instituting federal vaccine policies, if lax state laws continue to allow outbreaks.

But if people faced with unwanted mandatory vaccination claimed a religious exemption, the question becomes whether a city official has the power to override a state statute, Jacobi says. A court would likely decide that a city health commissioner has that kind of authority, Jacobi says, but “it depends on what the facts show.”

“The 1905 Supreme Court got it right when it said that public health officials should be respected in their judgments, but since that time, we have also seen the importance of allowing individuals to challenge executive branch officials’ judgments,” Jacobi says. “It’s a significant intrusion into the lives of parents and children, and yet, there is apparently a significant threat to public health. It’s a clash of very, very important risks.”

Few regulatory actions have matched the intensity of those in New York, but public health officials across the country are encouraging vaccination and working to curb outbreaks like those in New Jersey, Washington, California and Michigan, as well as New York. All told, the Centers for Disease Control and Prevention (CDC) has confirmed 465 cases of measles in 19 states this year, the second-most diagnoses since measles was eliminated nearly two decades ago.

Write to Jamie Ducharme at jamie.ducharme@time.com.

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