A Manhattan judge struck down a city rule that requires preschoolers to get flu shots, calling the regulation “invalid and unlawful.”
Manhattan Supreme Court Justice Manuel Mendez said in his decision released early Thursday that the city’s Department of Health and Mental Hygiene “lacked the statutory authority” to mandate the influenza vaccines because they are not required under state law.
Five Manhattan and Brooklyn moms sued the city over the 2013 policy, using a similar argument to the one that helped defeat former Mayor Mike Bloomberg’s soda ban.
They argued that the rule — passed under Bloomberg and supported by current Mayor Bill de Blasio — is illegal because it was not voted on by state lawmakers.
“This ruling is important because it keeps the decision about whether or not to vaccinate our smallest, youngest, most vulnerable citizens — it leaves the decision with the pediatricians and the parents,” said one of the plaintiffs, Michelle Carroll of Bay Ridge in Brooklyn.
The parents — Carroll, Magdalena Garcia, Lynn Rosenger and Gabrielle Jakob — sued because their kids would have been barred from attending preschool if they didn’t get them vaccinated before Dec. 31.
“I know my son and I are both very excited that he gets to stay in school,” Garcia said.
The decision does not affect the 11 other vaccines that are mandatory for city schoolchildren under state law, including shots for measles and polio.
City Health Commissioner Dr. Mary Bassett said she is “extremely disappointed by today’s decision.
“Influenza kills an average of 24,000 people each year in the United States, and the virus is spread easily in child care settings to children and their families.
“The vaccination requirement will save lives. While we evaluate our legal options to protect New York City children from this severe disease, we strongly recommend that parents vaccinate their children against the flu,” Bassett said.