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When the movant seeks a mandatory injunction—that is an injunction that will alter rather than maintain the status quo—she must meet the more rigorous standard of demonstrating a clear or substantial likelihood of success on the merits.
Section 2164 of the New York Public Health Law (the "PHL") imposes a baseline requirement that school-aged children be immunized against certain enumerated diseases. However, the PHL carves out two express exemptions from this general requirement, namely: (i) a medical exemption for children whose pediatrician certifies that the required immunizations may be detrimental to their health; and (ii) a religious exemption. Relevant here, the religious exemption removes from the statute's purview "children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to" the practice of vaccinating, and, as to them, requires no certificate of immunization as a prerequisite to their attendance at school.
Plaintiff NM and her husband have three minor children, two of them namely EK and LK who are involved in the suit. NM is a devout Orthodox Jew and has raised her three daughters in the Orthodox Jewish tradition. For reasons that NM alleges are inexorably linked to her faith, she has not vaccinated her children and does not intend to do so. From 2010 to 2015, the Minors EK and LK attended defendant HALB. During that time, neither child was vaccinated as required by the terms of the PHL. In 2010 and 2012, NM applied for religious exemptions on behalf of her daughters, which were granted in both instances. However, in 2015, HALB reevaluated the children's entitlement to an exemption. NM contended that this resulted from a new policy instituted by HALB at the suggestion of its Board of Directors, namely, to deny religious exemptions to its students. In connection with this, NM submitted a memorandum purportedly issued by the school nurses which stated, in part, that "HALB does not accept any Religious Exemption to Immunization. Only a Medical exemption can excuse a student from a vaccine, beliefs do not." HALB’s president testified that the information circulated by the school nurses was inaccurate and did not reflect any position of HALB, and denied any new policy being enacted. However, the School Defendants did acknowledge that they altered HALB’s internal procedures for evaluating requests for religious exemptions in mid-2015 to make it more intensive, acknowledging that its previous policies were below legal standard. Accordingly, in 2015, HALB began "strict enforcement" of the State immunization law by, for example, closely scrutinizing the reasons proffered by parents seeking religious exemptions for their children in the past, including NM’s HALB’s Executive Director Richard Hagler sent a letter to NM and eight other families, asking to be provided with the state-mandated certification of immunization for each child to be enrolled, or to hold a meeting to discuss the request for exemption. NM and her husband, as well as three other families, accepted the school’s invitation to meet and discuss their requests for an exemption. Based on NM's presentation at the meeting, the interviewers unanimously agreed that her reasons for not vaccinating the Minors "were based on perceived health concerns and not sincere religious convictions." In this regard, Hirt testified that, "[i]n the judgment of [the] committee . . . the motivations of the plaintiff were medically oriented and not religious." Accordingly, Hagler sent a letter to NM advising her that HALB had rejected her application for a religious exemption. NM’s husband sent a lengthy email seeking reconsideration, asserting several religious beliefs to support their claim. However, Hagler stated that this email reinforced HALB’s previous determination that NM’s reasons for not vaccinating her children were, in fact, health-based concerns couched as religious doctrine. Thus, in reply, Hagler sent a reply indicating that there had been no change in HALB’s position on the matter and that, pursuant to New York law, NM was required to provide a certificate of immunization. The minors EK and LK attended HALB for fourteen days, until Oct. 8, 2015. On that date, Hagler sent a letter advising NM that because the minors had not been immunized, they were no longer permitted to attend HALB. Thus, NM, individually and on behalf of the minors instituted the instant suit challenging the constitutionality of the said NY law, seeking preliminary relief in the form of a mandatory injunction.
Were plaintiffs able to show that they were likely to succeed on the merits to warrant the grant of an injunction?
The Court did not doubt that NM and her husband hold a genuine and sincere belief that they should not vaccinate the Minors. As this Court acknowledged in Caviezel, NM's beliefs in this regard are "real, and understandable." However, careful consideration of the current record suggested that these beliefs were formed with a primary view toward the children's health, and not their religion. In this regard, the record clearly did not support a finding that Orthodox Judaism, even as interpreted by these particular Plaintiffs, forbids the practice. The evidence showed that the Plaintiffs are devoutly religious. However, the evidence connecting this faith to their objection to vaccinating the Minors was tenuous. Initially, as noted, the Plaintiff conceded that there is no tenet of the Orthodox Jewish religion that prohibits the practice of vaccinating. In fact, the evidence showed that, of the approximately 1,700 Orthodox Jewish students at HALB, only a small minority of families, including NM and her husband, purport to interpret Judaic law as prohibiting the practice. Further, as was true in Caviezel, there was evidence in this case to indicate that NM holds "a selective personal belief" against the practice of vaccinating, as opposed to "a religious belief." In this regard, NM relies primarily on the Torah's commandment to guard the body against disease. However, NM testified that she applied this rule flexibly; that it was her prerogative to determine the best method of guarding the Minors' bodies against disease; and that the full force of Jewish law should attach to her decisions. Of importance, NM conceded that Jewish law "does not preclude" the use of immunizations, and that vaccines do, in fact, protect the body against disease. However, in her opinion, immunizations are "not the preferred method," and she believes that her lifestyle choices, namely, utilizing nutrition as "the highest form of healing," more closely comport with the principles of "liv[ing] in accordance with the order of creation in nature." In the Court's view, these facts indicated selective personal beliefs against the practice of vaccinating, not fundamental religious beliefs.