A New York state judge said in a new decision that the Legislature acted with "apparent callous disregard" when it approved a new law this year that eliminated religious exemptions to vaccines for children attending school or day care, and that the implementation has been "draconian."

Acting Supreme Court Justice Robert Wiggins from Steuben County declined to grant a preliminary injunction against the law, but didn't hold back his opinion of the Legislature.

"The Court wishes to reiterate its displeasure with the Legislature's apparent callous disregard for the sincere religious convictions of Plaintiffs and others similarly situated," Wiggins wrote.

The decision marks the second time this year that a state judge in New York has declined to bar the law from being enforced. The state Legislature approved the measure in June following an outbreak of measles in Rockland County and parts of New York City over the last year.

The lawsuit before Wiggins was brought against the state in September by Jocelyn Sullivan-Knapp, a mother who had previously obtained a religious exemption for her two children to attend school without having to get vaccinated.

Her attorney, James Mermigis, a solo practitioner from Nassau County, moved last month for a preliminary injunction against the law. Unlike other cases against the law in New York, Mermigis argued that the state constitution's religious freedom protections were stricter than those contained in federal law.

Wiggins, in his decision, rejected that argument, saying that both the text of the statute and case precedent didn't support the claim.

"If anything, textual analysis points to the New York provision granting lesser protection than its Federal counterpart, at least in the context of public health measures such as vaccinations," Wiggins wrote.

Mermigis, in an interview with the New York Law Journal, said he plans to file a motion in the coming days to reargue for a preliminary injunction.

"I was shocked by the decision," Mermigis said. "He should have had enough, in my opinion, to grant the injunction because it would have kept the status quo and the kids in school, until the case is heard."

The decision from Wiggins relied heavily on a ruling from the Court of Appeals, the state's highest court, in 1904 that found the Legislature had the power to require, as a condition of attendance in school, that children be vaccinated.

Mermigis argued that the decision allowed an exception to that rule for when an action from the state conflicted with the constitutional rights of residents. In this case, he said, the state's action contradicted the religious rights of parents enshrined in the state constitution.

"To me, it's inconsistent and I think I have a good shot if he understands my reargument," Mermigis said. "I think he misapplied the law."

It's the second time a state judge in New York has denied a motion for a preliminary injunction against the law.

Albany Supreme Court Justice Denise Hartman, in a decision handed down in late August, wrote that the health risk to individuals who aren't vaccinated outweighed the claims brought against the law.

Hartman's decision allowed the law to be enforced as the school year began in late August and early September. She wrote that, based on the filings and arguments she heard in the case, the plaintiffs were unlikely to succeed in having the law struck down.

Michael Sussman, the attorney litigating that case against the state, is currently asking to have that decision reviewed by the Court of Appeals.

Wiggins, in his decision this week, disagreed with Hartman's opinion that the law's challengers were unlikely to succeed in their efforts to invalidate the statute.

He wrote that the threat posed by children who aren't vaccinated because of a religious exemption "hardly seems like a public health crisis," and that the state should instead work to address parts of the population that aren't vaccinated either because of "faulty vaccines, failure to follow proper vaccination procedures, or the passage of time."

"Unless and until more is done to ensure the inoculation of the population at large, I fail to see how the public is so severely threatened by those with religious exemptions as to tilt any balance of equities in the public's favor," Wiggins wrote.

Wiggins also criticized the Legislature for not providing alternative education methods for unvaccinated children who aren't allowed in schools because of their inoculation status. The current alternative is to have those children home-schooled and, in some cases, use services provided by school districts.

He said the Legislature wasn't fulfilling its duty under the state constitution to maintain and support a school system "wherein all the children of this state may be educated."

"Could not other, less Draconian, measures have been chosen, such as, perhaps, providing tutors for displaced children?" Wiggins wrote. "Nonetheless, precedent appears to give the Legislature the authority to bar the doors to the unvaccinated, despite the unconscionable consequences that brings."

New York Attorney General Letita James said in a statement Thursday that her office was pleased with the decision.

"This law will help protect New Yorkers from experiencing any additional public health crises, which is why we continue to vigorously defend it. We are pleased with this decision and look forward to arguing our case in court."

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