Legal Updates for New York

1. F.F. on behalf of her minor children v. New York State (Repeal of Religious Exemption)
2. C.F. v New York City Dept. of Health and Mental Hygiene and Dr. Barbot, MD (Repeal of Religious Exemption)
3. V.D. v. State of New York ((Repeal of Religious Exemption and IDEA – Dismissed)
4. Jane Doe et. al. v. Howard Zucker et. al. (Lawful Medical Exemptions Denied to School Children)

NY Lawsuit #1 Repeal of Religious Exemption (From Most Recent)

September 22, 2020

The religious exemption repeal in NYS left 26,000 children out of schooling options and radically affected many families.  I am pleased to publish the Reply Brief we filed earlier this week in support of our appeal of a decision rendered last December by a State Supreme Court (lowest state court) dismissing our constitutionally-based challenge to that repeal.  The stakes for religious freedom are high. The stakes for our Constitution are high.

Read the Reply Brief

April 17, 2020

On Friday, April 17, 2020, attorneys appealed on behalf of 26,000 New York State children who suffered the removal of their religious exemption rights to vaccination in June 2019. On June 13, 2019, the New York legislature repealed the 55-year old exemption without even a single public hearing. Attorneys Michael Sussman and Robert F. Kennedy, Jr. filed with the Appellate Division, Third Department, located in Albany. The attorneys requested oral argument.

The lawyers’ brief criticizes the lower court decision, dismissing the case, explaining how it failed to apply the correct standard of review. The brief also details how lawmakers displayed overt, targeted hostility towards those exercising their First Amendment religious rights. It further argues that the repeal violated the New York Constitution and unjustly burdened other fundamental rights.

The requirements of religious tolerance, public health and school attendance. The 2019 measles outbreak – with its failed State response – did not provide a legitimate basis for overturning this careful equilibrium. The brief convincingly shows that the repeal has devastated thousands of families and has betrayed New York’s long history of religious tolerance.

Read the Appellant’s Brief

October 16, 2019

At this time, Children’s Health Defense and Michael H. Sussman, Esq. have decided not to appeal the denial of the preliminary injunction to the U. S. Supreme Court in F.F. on behalf of her minor children v. New York State regarding the repeal of the religious exemption in New York State.

While we strongly believe that the State’s actions are unlawful and unjustifiable, we do not believe that appealing to the U.S. Supreme Court at this preliminary injunction stage will serve plaintiffs’ best interests. The risk of an adverse ruling that could harm favorable outcomes in other existing and future challenges is too great. We recognize the extraordinary importance of this case to families that have religious convictions against vaccination; we deeply regret that this seems the wisest course given the existing legal precedents on vaccination mandates and the rulings in the case to date.

While we recognize that this is disappointing news, Children’s Health Defense will continue to stand shoulder-to-shoulder with you in the struggle for religious freedom, parental rights, and a child’s right to a school-based education, regardless of vaccination status.  Children’s Health Defense will be announcing other lawsuits in New York State and elsewhere soon.

Thank you for all you have done and all you are continuing to do to defend children’s health.

Robert F. Kennedy, Jr., Chairman
On behalf of the Children’s Health Defense team

September 11, 2019

We have filed a motion with the Third Department, an intermediate appeals court in NY, seeking its certification of our right to appeal its denial of the preliminary injunction to the state’s highest court, the Court of Appeals.  We expect the Third Department to decide that motion before the end of this month.  If it allows us to appeal to the Court of Appeals, we are prepared to proceed immediately.  If not, we will seek an injunction from the US Supreme Court.

September 6, 2019:

Yesterday, September 5th, we received the decision from the Third Judicial Department that our motion for preliminary injunction was denied. We will work on papers for the Court of Appeals and hope to file them early next week.

Appellate Division, Third Judicial Department Decision

August 29, 2019:

The court denied the Temporary Restraining Order but set this matter down for a very quick return date of September 4, 2019 at 9:30 am.  They indicated that a full panel of the court would then be able to decide the preliminary injunction motion. I am advised further that there will be no oral argument on the 4th unless we are otherwise apprised.

Signed Order to Show Cause

August 27, 2019:

On August 23rd, Judge Denise Hartman issued a decision denying the preliminary injunction/stay sought on behalf of 26,000 children and their families affected by the repeal of vaccine religious exemptions. CHD and Michael Sussman have appealed the decision. Court papers were filed today in Albany:

Order To Show Cause
Appellants’ Memorandum of Law in Support of Preliminary Injunction

August 26, 2019:

With respect to Judge Hartman’s decision, Attorney Michael H. Sussman issued the following statement:

“We will appeal the denial to the Third Department as promptly as possible. Supreme Court properly recognized the irreparable harm the legislative repeal and Her Honor’s decision will cause for 26,000 children throughout the State. We will seek a hearing as promptly as possible as we do not agree with Supreme Court’s logic and reasoning concerning the possibility of success on the merits or the balancing of equities. We believe both favor preserving the status quo until final judicial resolution. We remain confident in our arguments.”

August 23, 2019:

On August 23rd, Judge Denise Hartman issued a decision denying the preliminary injunction/stay sought on behalf of 26,000 children and their families affected by the repeal of vaccine religious exemptions. The Judge composed a 34-page opinion which [in summary] made the following critical points:

  1. It was established that absent an injunction, there would be irreparable harm to the children and families involved. The judge stated that she had read and found quite compelling the nearly 400 affidavits submitted and acknowledged that her decision would cause families and students substantial hardship.
  2. The court did not feel the balance of equities tipped in our favor [a second factor to consider in deciding whether to grant a preliminary injunction] because, Her Honor reasoned, unvaccinated children pose a threat to others who cannot get vaccinations. The court viewed this threat as very significant in her decision. The judge concluded that we do not have a strong chance on ultimately succeeding in showing that the repeal violated any constitutional right.
  3. The court reasoned that there is no constitutional right to a religious exemption and that the legislature had neutral, not discriminatory, purposes which she found compelling, that is protecting public health. The court found the comments ambiguous that claimed to show animus toward religion and felt the legislature’s purpose was benign, not discriminatory toward those of religious faith.

August 15, 2019:

On August 14th, attorneys Michael H. Sussman and Robert F. Kennedy, Jr. presented oral arguments on behalf of 55 NYS families, hoping Justice Denise A. Hartman would block a law passed in June or at least issue a preliminary injunction.

Challenging the constitutionality of the legislature’s repeal of the religious exemption to vaccination, they stated that parents who don’t want their children vaccinated will have their First Amendment rights violated if they are forced to do so.

With school less than three weeks away, more than 26,000 NYS families have been thrown into chaos, because their children are barred from school and daycare. Hartman heard an hour of arguments over an injunction, and said she will keep the tight timeline in mind as she deliberates.

A decision has yet to be made.

August 9, 2019:

A memo of law from the state defendants was submitted opposing our Temporary Restraining Order. Michael Sussman drafted a response and parents submitted over 350 Affidavits which we bound. On July 30, the affidavits and our brief to the court was mailed by the July 31 deadline for all legal papers.

After Mr. Sussman received state defendants’ opposition to the preliminary injunction, he wrote the judge and asked her for a chance to respond to those arguments. We filed a response August 6th. Mr. Sussman also asked for oral argument.

Oral argument was granted by the court to take place on August 14th at 10 a.m. at the Albany County Supreme Court. Following oral arguments by Michael Sussman and Robert F. Kennedy, Jr., a press conference will be held on the steps at 16 Eagle Street, Albany, NY. NY leaders ask that parents please show up in force and be there by 10 a.m. Bring your friends and family. If you see any reporters, introduce yourself and tell them your story. The judge and the press need to see that this law is impacting tens of thousands of families across the state.

June 11, 2019:

Families Sue New York State to Stop the Repeal of the Religious Exemption to Vaccines


NY Lawsuit #2 Repeal of Religious Exemption (From Most Recent)

October 18, 2019

Robert F. Kennedy, Jr. filed an appeal in the New York State case challenging New York City’s April 9, 2019 measles mandate. The appeal, brought by Robert F. Kennedy, Jr. and Robert J. Krakow, focuses on four issues:

  1. That public nuisance law cannot lawfully be used to criminalize biological status, including non-vaccinated status, as the City has done;
  2. That children who held lawful religious exemptions to vaccination during New York City’s measles mandate were exempt from compliance;
  3. That the Supreme Court below failed to find that the plaintiffs faced irreparable harm from the City’s harsh order, both from deprivation of religious liberty and potential vaccine injury;
  4. That the potential punishment and fines New York City imposed were excessive.

Read Stamped Documents

April 18, 2019

The Supreme Court, Kings County, denied the temporary restraining order and preliminary injunction. Under the City’s order, hundreds of people were subjected to fines for non-compliance.

April 15, 2019

Robert F. Kennedy, Jr. and others filed a lawsuit on behalf of five Brooklyn families immediately, demanding a temporary restraining order and preliminary injunction against the order mandating all residents of four Brooklyn zip codes to be vaccinated with the Measles-Mumps-Rubella vaccine within a 48 hour period (or to have documented immunity to measles) or be subject to criminal and civil penalties. The attorneys argued that the order was arbitrary and thus violated state and federal law.

Read the Petition
Read the Memorandum of Law
Read the Affirmation

NY Lawsuit #3 Update on Repeal of Religious Exemption and IDEA (From Most Recent)

August 22,2019

Kim Mack Rosenberg, the lead attorney in V.D. v. State of New York, the lawsuit challenging the denial of an education to special needs students in New York who are not fully vaccinated, issued the following statement yesterday:

Looking strategically at the decision from federal Judge Alleyne Ross denying a preliminary injunction in V.D. v. State of New York, we made the decision to voluntarily dismiss the action and our notice of voluntary dismissal without prejudice was filed on Thursday, August 22, 2019.

There was something of a victory out of this litigation despite the denial of our request for a preliminary injunction. Many districts had been informing families that New York State Education Department (NYSED) was telling districts they did not have to provide services to homeschooled children who do not have all mandated vaccinations. After the filing of our complaint and motion papers, NYSED – in its opposition to our motion, and in the August 16 guidance from the New York State Department of Health- reversed that position and is now telling districts to provide services (there is an issue with the 6/1 deadline to notice districts but none of these families knew they would need to consider homeschool on 6/1 and NYSED is “encouraging” districts to provide services to families who provide post-6/1 notice).

We are looking at additional avenues to address issues regarding children with IEPs, so while this specific case has been dismissed, work is continuing. We continue to be committed to these issues for all children in New York, not only children with special needs.

August 19, 2019

On August 5th, a motion was filed for a preliminary injunction to stop the state of New York from enforcing a recent repeal of religious vaccine exemptions under the NY vaccine law, and allow students to begin school in September and “stay put” in the current placements according to their IEPs. The Defendant’s opposition papers and the Plaintiff’s reply were filed last week.

On Monday, August 19th, Judge Allyne Ross denied the request. Attorney Kim Mack Rosenberg stated:

“We are, of course, disappointed in Judge Ross’s decision denying a preliminary injunction which would have allowed New York’s most vulnerable students with disabilities to return to their classrooms this fall and receive the education placements and related services in the settings mandated by their IEPs. We are carefully analyzing the Court’s decision and assessing next steps.”

August 5, 2019:

In the IEP litigation, a motion was filed for a preliminary injunction on August 5, 2019. Judge Allyne Ross in the United States District Court for the Eastern District of New York has set an expedited briefing schedule for this motion. The Defendants have to file any opposition papers by August 13 at 5 pm and Plaintiffs have to file their reply by August 15 at 3 pm. A hearing date has not been set but all involved know this issue is time sensitive with the start of school in September. Plaintiffs argued in their motion that the Court should stay the implementation of the amended New York law, especially with respect to students with Individualized Education Programs (IEPs), who have extensive rights under federal law. The amended state law prevents these vulnerable children from going to school and receiving services that the families and districts agree are appropriate and has denied families notice and due process rights they are entitled to under federal law. Thus, Plaintiffs argue, the federal law preempts the state law and states’ law should yield to the federal law. Plaintiffs’ motion argued that they meet and exceed the traditional standards to grant an injunction staying the New York law’s implementation but also that the Court could issue an automatic injunction allowing students to “stay put” in the current placements according to their IEPs.

July 29, 2019:

Families of Children with Disabilities Sue New York State to Enforce Rights Under IDEA and Allow Children to Attend School

NY Lawsuit #4 Update on Lawful Medical Exemptions Denied to School Children

September 21, 2020

On Monday, September 21st, attorneys on behalf of Children’s Health Defense and named plaintiffs filed a response in Jane Doe, et. al v. Howard Zucker et. al to the New York Department of Health’s motion to dismiss. The lawsuit challenges NYS policies and procedures that unconstitutionally restrict medically vulnerable children from getting necessary medical exemptions from licensed physicians.   

The DOH contends that the court should dismiss the case, arguing that state vaccine policy cannot be questioned as a result of a 1905 Supreme Court case permitting vaccine mandates under state police power. Plaintiffs respond that the Supreme Court has many times over acknowledged that medical exemptions are fundamental rights, including in the 1905 case itself. Plaintiffs note that the regulations at issue unconstitutionally allow school principals to overrule treating physicians and artificially narrow the  “valid” reasons for an exemption. DOH’s unconstitutional and irrational regulations exclude hundreds of acknowledged illnesses and conditions that vaccines can cause. 

The federal court of the Northern District of New York will review the papers and alert the parties if it wants oral argument. In the meantime, attorneys will be arguing for a preliminary injunction to stop the state and individual school districts from overruling treating physicians pending the outcome of the case.

Opposition to State Defendants’ Motion to Dismiss

July 24, 2020

Jane Doe, et. al v. Howard Zucker et. al Attorneys Sujata Gibson, Michael H. Sussman, and the CHD legal team led by Robert F. Kennedy, Jr. and Mary Holland filed a class action lawsuit on July 24, 2020 in Federal Court challenging the constitutionality of New York State’s Department of Health regulations that allow school principals to overrule treating physicians on recommendations about medical exemptions to immunization.

The named plaintiffs are eight New York State families whose valid medical exemptions for their school children were overruled. CHD has asked the court to declare the policy unconstitutional and allow children back into school.

“What these families have gone through shocks the conscience,” said lead attorney in the case, Sujata Gibson. “Since the regulation took effect in August 2019, thousands of immunocompromised children in New York have had their treating physicians overruled and have been removed from school.”

In powerful detail, the complaint describes how these families have received multiple exemptions from physicians and specialists, only to have them denied by school officials with no medical training. This widespread practice of rejecting valid medical exemptions is especially bewildering as New York repealed the religious exemption to vaccination in June 2019, arguing that it was to protect immunocompromised and medically vulnerable children.

“My child has suffered enough because of his health condition,” said plaintiff Jane Doe. “Why must he suffer school expulsion and ostracism too?” Treating physicians assert that the policies are preventing them from doing their jobs: “Physicians who are on the ground, caring for these medically vulnerable children, need to be able to defend children’s health without fear of professional and personal threats,” said Lawrence B. Palevsky, MD.

Original Complaint