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Midweek Mash-up: How Scalia’s Decision Screwed Autism Families

MashupBy Dan Olmsted

Don’t speak ill of the dead, the solons say: De mortuis nihil nisi bonum (“Of the dead, nothing unless good.”) Of their work product, though, the truth should always be told.

Supreme Court Associate Justice Antonin Scalia, who died over the weekend, wrote the majority opinion in Bruesewitz v Wyeth, the decision that put vaccine safety issues permanently out of reach of a jury of our peers. Instead, a vaccine “court” of arrogant "special masters" created in 1986 bottles up the truth – that vaccine injury is far worse, and far more common, than the government and the pharmaceutical industry want you to know, and that one of those injuries is autism.

Scalia’s 2011 decision -- slamming the door to a federal court appeal by families denied compensation in vaccine "court" --  ingests every talking point of the “vaccines are God” crowd and disgorges them as the basis for a wrongheaded legal decision. Writing for the majority, Scalia said:

“For the last 66 years, vaccines have been subject to the same federal premarket approval process as prescription drugs, and compensation for vaccine-related injuries has been left largely to the States. Under that regime, the elimination of communicable diseases through vaccination became ‘one of the greatest achievements’ of public health in the 20th century.'” (The quote is from the CDC.)

This wonderful state of events, Scalia goes on, was disrupted by misplaced concerns over vaccine side effects. “But in the 1970’s and 1980’s vaccines became, one might say, victims of their own success. They had been so effective in preventing infectious diseases that the public became much less alarmed at the threat of those diseases, and much more concerned with the risk of injury from the vaccines themselves.

“Much of the concern centered around vaccines against diphtheria, pertussis, and tetanus (DTP), which were blamed for disabilities and developmental delays. This led to a massive increase in vaccine-related tort litigation.”

Well, yes, it did – because the DTP shot was in fact responsible for disabilities and developmental delays; if not, why was it reformulated? You’ve got to be an Offitoid to argue otherwise.

Scalia displayed a rosy-eyed view of the vaccine “court’s" effectiveness. “Fast, informal adjudication is made possible by the Act’s Vaccine Injury Table,” he declared. Oh please. As we all know, the “court” has become a Ground Hog Day of delays and diversions in which government lawyers essentially act as intermediaries for the drug companies.

As the Unanswered Questions report has shown, it is where the autism epidemic goes to hide – despite the rejection of 5,000 vaccine-autism claims, they’ve compensated many cases of autism following vaccine-induced encephalopathy. Just don't say the word autism, successful claimants have found.

Scalia spends much of his opinion dancing on the head of a pin – “(a) Section 300aa–22(b)(1)’s text suggests that a vaccine’s design is not open to question in a tort action. If a manufacturer could be held liable for failure to use a different design, the ‘even though’ clause would do no work. “

Autism families don’t really care whether a) Section 300aa–22(b)(1) does no work. They care that the government does no work to confront the autism epidemic, which in my view is being driven by excessive vaccination.

Vaccines are not victims of their own success; people with autism are victims of the liability-free vaccine "court," which took a far more limited childhood immunization schedule and turned it into a profit center for pharma. 

Scalia and his colleagues sealed all the exits, even in a case of vaccine injury as clear-cut as Hannah Bruesewitz herself. In our book Vaccines 2.0 published last year, Mark Blaxill and I wrote:


Consider the case of Hannah Bruesewitz, who “hours after a diphtheria-pertussis-tetanus vaccine, developed catastrophic brain injury and a lifelong seizure disorder,” according to the Eizabeth Birt Center for Autism Law and Advocacy.

“The only plausible explanation for the harm to Hannah was her vaccine,” the center said. “Indeed, many other children were injured by the same vaccine lot, yet the Vaccine Injury Compensation Program, the only court where Hannah could bring her claim, denied compensation after years of litigation. Now the Supreme Court tells Hannah and her family that there is no courtroom in the country in which she can obtain justice and compensation for the years of care ahead that she needs.”

If a case as clear as Hannah Bruesewitz’s was rejected, no wonder parents of vaccine-injured children can end up feeling alone, abandoned by their doctors and public health officials who had glibly assured them that the risk of vaccine injury was infinitesimal and, if it did occur, would be compensated quickly and generously.


Wyeth, now part of Pfizer, now merging with Allergan (because Pfizer’s billion-dollar vaccine baby Prevnar makes it a hot property), has had a bit of a problem with hot lots. AOA unearthed a document that showed it conspired to hide deaths from a hot lot of DTP by distributing the lots randomly.

Nice crowd. People damaged by vaccines deserve their day in a real court, a day denied by the Court itself. That’s not very conservative, textualist or originalist, in my opinion. That’s a sop to big business and big government and a vote of confidence in the authoritarian impulse. Everything will be all right. Just obey.

That, too, is part of Scalia’s legacy.


Dan Olmsted is Age of Autism




Good to see that AP journalists are investigating and reporting to the public. They are not getting the information that they are requesting. That the man had health problems as a reason for not investigating his death and doing an autopsy is baloney. Any judge because of his line of work is guaranteed to also have enemies - a situation which ranks right up there with health problems as a potential cause of death - especially a Supreme Court Justice.

Reading Is Fundamental
Correct. Ginsburg wrote the dissent, and was joined by Sotomayor.

No, it's the other way around.

Reading Is Fundamental
Scalia’s 2011 decision -- slamming the door to a federal court appeal by families denied compensation in vaccine "court"

The decision foreclosed state court actions.

If a case as clear as Hannah Bruesewitz’s was rejected

The case rested upon expert witnesses, who were not subjected to cross-examination.

Dan olmsted

Regrettably dissents don't matter. Just ask al gore!

Carolyn M

Gary Ogden,

Roberts was part of the majority opinion. Kagan recused herself.

If I remember correctly, prior to hearing the case, it appeared that Roberts would recuse himself since he owned stock in a pharmaceutical company. However, he sold the stock and then heard the case.

Gary Ogden

Correct. Ginsburg wrote the dissent, and was joined by Sotomayor. Seems to me that Roberts recused himself. The dissent itself, though a bit rugged to slog through, is powerful (thank you, Birgit Calhoun, for the link). She clearly understands that it was never the intent of Congress to entirely preempt state tort law. The majority decision was not only terrible, but deeply flawed, and wrong as a matter of law.


My Mother is sharp as ever. We were discussing it this evening and she said bet that it was handled the way it was because he probably died by an accidental overdose of prescription medication.

Goes down like that all the time around here. It matters not if they are head of the community or some young adult hurting for some strange reason.

He was sick as it was, not eating right probably, gone to this hunting lodge and wanted to feel good in the morning for the hunt. He turned in early; took his meds.
None of his family wants to know if it was an overdose and for sure would not want it known it was an overdose.

Jenny Allan

From Birgit Calhoun's link (thank you Birgit) -statement from the two dissenting judges:-

Justice Sotomayor , with whom Justice Ginsburg joins, dissenting.

"Vaccine manufacturers have long been subject to a legal duty, rooted in basic principles of products liability law, to improve the designs 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 §22(b)(1) of the National Childhood Vaccine Injury Act of 1986 (Vaccine Act or Act), 42 U. S. C. §300aa–22(b)(1), pre-empts 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 vacuum 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, I respectfully dissent."


This wonderful state of events, Scalia goes on, was disrupted by misplaced concerns over vaccine side effects.


If those concerns were so 'misplaced', then why did protect drug companies by putting vaccine safety issues permanently out of reach of a jury of our peers.

John Stone


I recall that Sotomayor wrote a dissenting judgment.


Thank you John. I just had not given any thought of who voted and how close it was; at all. The American people lost, and I am well aware that chance will never come up again, ever after being decided in the Supreme Court.

Heart disease probably related to precious vaccines, and recent vaccine in the elderly soon dying after flu shots by having a heart attack; Remember that study?

With all the information at his very finger tips, and no doubt he just could not see it, and did not know.

I am perplexed? The only thing I can figure that Jamestown and poison cool aid drinking is not a weird, rare phenomenon of the human psyche ?


Thank you Dan. I didn't know all this was from Scalia.

I have been concerned over how Scalia's death was handled. If a president was found dead at someone's home in Texas after a dinner party, would the local Justice of the Peace and judge be handling it? No autopsy? I don't see how the death of a Supreme Court Justice should be treated any differently. Very alarming, to say the least.


Who were the two if you don't mind. And thank you!

John Stone


It was split 6-2.


Did all 9 judges come out against changing the vaccine court decision?
I just knew we lost, I did not look up how each judge voted?

go Trump

The Seventh amendment to the US Constitution is immediately taken away from US infants so they can receive the day one prostitute / IV drug user hep b vaccine. Of course, it does not really work until after the 4th dose... soon followed by the Merck Master Race vaccine…..

As governments expand as they always do, they can go in two directions, socialism or fascism. The USA at present is a fascist / sort of democracy where the 1% controls it all… and the 2% cannot understand why they cannot have the same things as the 1%.

The other 98% is supposed to be always thankful for whatever the elite decide.

Birgit Calhoun

Here is some information on "unavoidably unsafe": https://www.law.cornell.edu/supct/html/09-152.ZD.html

John Stone

Gary Huber

It wasn't Scalia's coinage - it goes back much further than Bruesewitz vs - Wyeth - but it was pretty much his position.

Birgit Calhoun

John Stone! You are right. I thought that is what I was trying to say. I have to be a bit careful here because I work among lawyers.

Gary Huber

I am saddened to learn that the "unavoidably unsafe" phrase came from Scalia. this horrible decision is another example of why a handful of unaccountable people should never be allowed to gain so much power. I am not a law history expert, but I know the supreme court has made some very irrational decisions over the years. Even the supposed best and brightest can become indoctrinated and do very foolish things. As for Trump, I am afraid when all is said and done, he will have done more damage than good to the vaccine accountability cause. Another reason to say only kooks question vaccines. (I hope and pray I am wrong)

John Stone

Hi Birgit

I spent a lot of time going over Scalia's judgment, partly because one of our correspondents kept on making a big deal of the fact that he didn't actually use the formulation of "unavoidably unsafe" to describe the position although he might just as well have done (great splitting of hairs). I don't think anyone reading it closely would doubt that he grasped the issue that the products were potentially unsafe, and indeed he was referring back to a slightly more realistic epoch when the safety of vaccine products was not so much taken for granted. I think one can say that it was an ugly decision which was biased toward corporate interest. I don't think he was ignorant or given to ill-informed wishful thinking. He was, I believe, just being plain nasty.

Birgit Calhoun

If Scalia truly meant it when he said that vaccines are being treated like pharmaceuticals, he would not have used his kind of double speak. He is not only using his kind of dialectic, he is also not knowledgeable enough to really judge the merits of what he said. He does not have a clue about what goes into the vaccines and he may well have been too smitten by intelligence of the attorney for Wyeth who also did not thoroughly have to think about the ingredients in a vaccine because she didn't think that this justice was well enough versed in science to know.

Hans Litten

vaccination became ‘one of the greatest achievements’ of public health in the 20th century

This often heard quote is the biggest sick joke of all time.
How did they get away with it .

Lisa, I urge you to investigate Hillary's past , because according to many , she is going to be the next president, and its astounding to me that they could even dare to put someone like this is charge (I wouldn't worry Trump at all - his integrity seems sound) .


I am in a real dilemma. I don't like Trump. He talks glibly of torture and guns and war. I'm afraid of what he could do, particularly on the international scene. But at this point, I feel I have no choice but to back him. He is the ONLY candidate on either stage who I truly believe would take on the drug industry and the vaccine mandates. So, I guess I'm just going to have to join a movement to make sure he doesn't start World War 3, torture everyone he wants information from, and hand guns to teachers.

Louis Conte

Spot on. Thank you for writing this and all of your hard work.

The NVICP is really the National Vaccine Injury Concealment Program.

Scalia - who always claimed to believe that the Constitution was not intended to evolve - let THIS program evolve into one that would have infuriated the founding fathers. It seems that the Constitution can be just flexible enough to protect Pharma.

We are closing in on five years since the release of Unanswered Questions and the government has never responded to the fact that vaccine induced encephalopathy often means vaccine induced autism. Congress has never held hearings on a program they created and then quickly allowed to be taken over by Pharma to protect Pharma.

When will Congress haul someone like Dr. Geoffrey Evans in? Evans was the Director of the Division of Vaccine Injury Compensation. Evans knew what was going on with these cases. How come he's never been made to answer why all these cases of vaccine induced brain damage ALSO feature autism yet the program denies that vaccines cause autism.

And thank you to Bob Moffit for everything he's done for us.

Bob Moffit

I will never forgive or forget Justice Scalia's "Bruesewitz v Wyeth" majority opinion .. wherein he used the term "unavoidably unsafe" to describe vaccines .. yet .. denied parents their Constitutional Right to seek legal redress in State and Federal Courts .. banishing aggrieved parents and their vaccine damaged children to the Vaccine Court .. which is more about cover-up than justice.

That Scalia will always be remembered for this horrible decision .. ruins what I believe was an otherwise admirable career as a Supreme Court Justice.

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