Imagine your child was hit by a reckless driver and catastrophically injured. Cognitive impairments, seizures, problems with walking, eating, talking – you name it. You find out who the driver was, and you sue the driver for damages – but you can only sue in a “special driving court.” Cases in this court usually take years, sometimes more than a decade. For ten years, you and your child struggle to make ends meet to pay for all the healthcare bills. Finally, the special court issues a ruling. Against the weight of the evidence, without affording you discovery or a jury of your peers, you lose. You’re out on your ear, even though the driver has a massive insurance policy for just such accidents.
You dust yourself off and sue the driver in a regular court, because you have that right by statute – and the regular court says, “No, the special court is good enough for you; no regular courts for those injured by reckless drivers.” So you appeal that decision to the court of appeals, and you lose; and then you appeal again to the U.S. Supreme Court, and you lose again. For almost twenty years, you’ve been fighting just to get fair compensation, only to learn that the Supreme Court would rather protect reckless drivers than your innocent child.
If you re-write the first sentence to “imagine that your child was injured by a badly designed, federally-recommended vaccine,” you have the essence of the Bruesewitz v. Wyeth decision that the U.S. Supreme Court handed down last month. Hannah Bruesewitz, as an infant, suffered catastrophic seizures and brain injury within hours of a diphtheria-pertussis-tetanus vaccine that was pulled from the market several years after her injury because it was insufficiently safe. Hannah has devastating injuries from which she will never recover. Her family had no choice but to go to the Vaccine Injury Compensation Program, a very “special court” if ever there was one. The family litigated there for ten years, losing a case that common sense, science, and decency say they should have won. This week, the U.S. Supreme Court tells them that there is no court – no court in the land – that may hear their case. The Supreme Court tells the family this when the relevant law, the 1986 National Childhood Vaccine Injury Act, provides for recourse to civil court.
This Supreme Court decision is a betrayal. It betrays American parents and children. This is not what the 1986 law provides, and it is not just. No parents should be compelled to subject their children to “unavoidably unsafe” medical interventions, which are mandated by every state in the country as a requirement for school admission, and then have no direct recourse against the manufacturers when the products could have been made far safer, as was the case in Bruesewitz v. Wyeth. This decision violates the intent of Congress and appears to be a policy decision to shield the U.S. government and the pharmaceutical industry from the prospect of real trials seeking to prove that federally recommended, mercury-containing vaccines caused autism in some children.
This travesty of justice likely spells the end of the U.S. vaccine program as we’ve known it. Vaccines carry grave risks. Parents vaccinate their children believing that the government will compensate them if their child is “injured in the line of duty” as they uphold the public health. Last month’s Bruesewitz decision changes all that. If your child is injured, the Supreme Court states that You’re On Your Own (YOYO). This is like the doctrine of caveat emptor, buyer beware, only infinitely harsher. Parents have no real choice when it comes to state-mandated vaccination—if they refuse, no daycare, no schools, and sometimes even no medical care for their children. So it’s not just buyer beware. It’s “families have no civil rights when it comes to childhood vaccines.”
With Bruesewitz v. Wyeth, the Supreme Court has fired a metaphorical shot across the bow. Parents are now likely to think twice about vaccines. They will weigh their rights more carefully, including their rights to religious, philosophical and medical exemptions from vaccination mandates.
The Supreme Court has violated the social contract. We urge Congress to step in, overrule the Supreme Court’s misguided decision, and restore the right of civil suit. But in the meanwhile, when it comes to federally recommended, state-mandated vaccines, remember -- YOYO.
The writers are co-editors of Vaccine Epidemic: How Corporate Greed, Biased Science, and Coercive Government Threaten Our Human Rights, Our Health, and Our Children. Habakus is the director of the Center for Personal Rights and Holland is Research Scholar, NYU School of Law.