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