Well beyond unconstitutional

Recently a New York county decided to ban unvaccinated minors from public places in response to a measles outbreak. And it is so beyond unconstitutional it’s not even funny.

Local and county governments are subject to the same Bill of Rights as the Federal government via incorporation. So has said the Federal judiciary, including the Supreme Court of the United States, numerous times over.

So let’s say there is an unvaccinated child in a public place in this New York county. Beyond the parent or child (because, let’s face it, the most truthful people in the world are drunks and children) openly admitting such, what would constitute probable cause in this instance? What would constitute even reasonable suspicion to detain someone?

The government would also have to demonstrate the child is not vaccinated. There is no obvious physical indicator of a person being vaccinated or not against measles. This isn’t like with smallpox where the vaccine leaves an obvious scar or blister. So demonstrating the child is sero-negative to measles, meaning they have no antibodies against it, requires a blood test. And unless the parent voluntarily consents to the blood test for their child, which no parent in their right mind would do, the police would need to demonstrate probable cause to get a warrant, since the blood test is a search under the Fourth Amendment – see Birchfield v. North Dakota, 579 US ___ (2016).

And the parent refusing to consent cannot be used against them in any way. It is not automatic probable cause. The police would still need something else.

So given that blood tests are out of the question, again absent probable cause or voluntary consent, what about vaccine records? Should parents have to carry around their children’s vaccine records wherever they go in that county, to be produced upon demand of law enforcement? Under the Health and Insurance Portability and Accountability Act (HIPAA), No. Vaccine records, like all other records related to a person’s past medical history, are protected health information (PHI) under the HIPAA Privacy Rule. Meaning law enforcement cannot demand you produce them without a court order.

The county said they have no intention of actually arresting people, but instead using this as a wake-up call regarding the measles problem they’re having. Except the law being on the books is still the issue, since the county could, at any time the law is active, choose to start enforcing it, such as if they aren’t getting the results they expect from it.

And that is where the county will fast run into the Fourth Amendment.