Judge denies stay in religious exemption case

A judge hearing a case brought by Orange County civil rights attorney Michael Sussman refused on Friday to issue a temporary restraining order to preserve for now the canceled religious exemptions that allowed parents to send their kids to school without being vaccinated.

New York lawmakers and Gov. Andrew Cuomo dropped the exemption from state law in June in the wake of a measles outbreak affecting mainly unvaccinated children. Sussman and Robert F. Kennedy Jr. – an environmental attorney and prominent vaccine opponent – sued the state this week to reinstate the exemption, arguing that its elimination tramples on families’ religious rights and violated the Equal Protection Clause.

Sussman announced on Friday that state Supreme Court Justice Michael Mackey in Albany refused to suspend the exemption’s repeal while the case is pending, concluding “we had not met or carried the very high burden of demonstrating substantial likelihood of ultimate success on our claims.”

He said Mackey indicated that “if we can demonstrate the merits of our case before him or another Judge, we will have time to do so before September and the extensive irreparable harm children will then suffer.”

Parents whose children had religious exemptions must now get them shots or they won’t be able to attend school in the fall. Almost 2,200 kids in Orange, Ulster and Sullivan counties had those types of waivers during the 2017-18 school year, according to state data.

“This is not the decision I had hoped for, but I recognize that getting a TRO against state legislation is very difficult,” Sussman said. “I hope that further development of all the issues will cause this or another Judge to preliminarily restrain the operation of this statute and I will be working on making that happen.”

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