New York Swine Flu Regulation Hits Road Block

On August 13, 2009, New York's state health commissioner, Dr. Richard F. Daines, promulgated a regulation requiring certain health care workers to receive the swine flu vaccination or be subject to fines. Dr. Daines' rationale, articulated in a statement reported by the New York Times, predictably related to the welfare of the patients:

Questions about safety and claims of personal preference are understandable. Given the outstanding efficacy and safety record of approved influenza vaccines, our overriding concern then, as health care workers, should be the interests of our patients, not our own sensibilities about mandates. On this, the facts are very clear: the welfare of patients is, without any doubt, best served by the very high rates of staff immunity that can only be achieved with mandatory influenza vaccination – not the 40-50 percent rates of staff immunization historically achieved with even the most vigorous of voluntary programs. Under voluntary standards, institutional outbreaks occur every flu season. Medical literature convincingly demonstrates that high levels of staff immunity confer protection on those patients who cannot be or have not been effectively vaccinated themselves, while also allowing the institution to remain more fully staffed.

Although Dr. Daines' regulation swept aside the "understandable" concerns "about safety and claims of personal preference" based on overriding public health concerns, a new legal challenge threatens the mass-vaccination scheme. Indeed, Justice Thomas McNamara of the New York Supreme Court granted a temporary restraining order ("TRO") last Friday enjoining enforcement of the regulation pending a hearing on October 30.

The TRO is a big victory for the plaintiffs, and--at least to some degree--reflects a determination that the vaccination scheme is likely to be struck down on the merits. The Public Employees Federation, one of the three plaintiffs seeking to nullify the regulation, was kind enough to share their court briefing with us.

Tacitly conceding that states and municipalities have the constitutional authority to require mass vaccinations for public health purposes in light of the Supreme Court's holding in Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Federation essentially argues that the New York state constitution is violated by the regulation because it was implemented by an agency rather than the legislature. The brief alleges that Dr. Daines lacked authority to order the vaccinations, and additionally notes that every other vaccination scheme implemented was done under the auspice of a legislative mandate.

What I find most interesting, however, is a factual point the Federation wisely makes early on in the brief: no other state has followed New York's lead in implementing a compulsory swine flu vaccination program of any kind--be it by regulation or legislation. This, frankly, surprises me in light of the mass hysteria surrounding the whole ordeal. And, from a democratic government perspective, it's a pretty persuasive (albeit, legally irrelevant unlike the jurisprudence in the 8th Amendment context) argument against Dr. Daines' regulation. After all, the plaintiffs' claims would be mooted out if the state legislature goes ahead and passes a mandatory vaccination law itself. But no such law has been passed anywhere.

Should unelected administrators like Dr. Daines be able to circumvent the legislative process via regulation? In the face of a possible pandemic with massive public health consequences, it's a surprisingly challenging question to answer.