I will confess my deep disappointment over the outcome in Bruesewitz v. Wyeth. The case was well-presented by the attorneys and I thought it might be one of those rare instances where there could be a convergence of conservative suspicion of big government and a liberal suspicion of big business.
I was wrong. The conservatives did not hold true to their principles. The liberals did.
And yet in the 6-2 decision I must also note a crack in the defenses. You'll forgive me if I sound a little like Atticus Finch in To Kill a Mockingbird, who noted hope in a small-town southern jury who argued long and hard before convicting an obviously innocent black man of attempted rape.
To put it bluntly, the republican males of the court folded and the democratic women, Sotomayor and Ginsburg stood firm and identified the true issues in the case. Sotomayor's blistering dissent set the stage for future public debates. Here is the preview she gave of her 28 page dissent:
"Vaccine manufacturers have long been subject to a legal duty, rooted in basic principles of products liability law, to improve the design of their vaccines in light of advances in science and technology. Until today, that duty was enforceable through a traditional state-law tort action for defective design. In holding that section 22(b)(1) of the National Childhood Vaccine Injury Act of 1986 (Vaccine Act or Act), 42 U.S.C. section 300aa-22(b)(1), preempts all design defect claims for injuries stemming from vaccines covered under the Act, the Court imposes its own bare policy preference over the considered judgment of Congress. In doing so, the Court excises 13 words from the statutory text, misconstrues the Act's legislative history, and disturbs the careful balance Congress struck between compensating vaccine-injured children and stabilizing the childhood vaccine market. Its decision leaves a regulatory vacum in which no one ensures that vaccine manufacturers adequately take account of scientific and technological advancements when designing or distributing their products. Because nothing in the text, structure, or legislative history of the Vaccine Act remotely suggests that Congress intended such a result, (bold is mine) I dissent."
This dissent sets the stage for all future conversations.
We lost all of the Vaccine Court cases. In the Supreme Court we lost 6-2. But a different dynamic now begins.
If one might say the republicans of the Supreme Court favored the pharmaceutical companies, it's now the job of the media which is overwhelmingly democratic to sell this decision. But the media darlings of the Supreme Court aren't Roberts and Scalia. It's Sotomayor, if it's anybody.
And now the media is in the uncomfortable position of saying their favorite Justice, that "wise Latina", somehow went off the tracks, and lost her mind on this case. How else can they explain her vigorous dissent? They can't say it's because she's a former Playboy bunny. She's not some angry mom looking for somebody to blame because her child is disabled. She hasn't been tried and found guilty in some bizarre kangaroo medical court. She is a woman of exceptional intelligence and ability who is often touted as a future Chief Justice of the Supreme Court.
Sotomayor represents the best of principled liberal ideals wedded to a classic American story of overcoming great odds. I have often wondered where autism might find a home among our political parties. The answer is clear to me now.
Democratic women. That's not to say there aren't wonderful republicans in this fight, but we must fight on the battlefield which is most advantageous to us at this time.
No women on this court found in favor of the pharmaceutical companies. To me that's the take-home message of this decision and the way I think it will play across the country. (I know, if Elena Kagan had participated in this decision she probably would have found in favor of the pharmaceutical companies, but she didn't.)
How many mothers will be comforted by the fact that all the men on the court ended up on one side of this issue and all the women on the other? Does it make them more likely to follow the CDC recommended schedule? I don't believe it does.
Yes, we lost an important battle in the Supreme Court. But we also gained a valuable ally and some amazing intellectual firepower. For the first time in the history of this debate an unassailable figure in American life has stood up and said that the way the Vaccine Court is operating is wrong.
Sotomayor wrote that "nothing in the text, structure, or legislative history of the Vaccine Act remotely suggests that Congress intended such a result." The words have been written and published for all to see. Yes, we are still a minority, but this dissent says we have a right to be heard and a reasonable point of view.
The fight goes on.
Kent Heckenlively is Legal Editor of Age of Autism