The Supreme Court Did Not Deem Vaccines "Unavoidably Unsafe," Congress Did.
By Ginger Taylor, MS
There is an error that is often made when we talk about the "Unavoidably Unsafe" status of FDA approved vaccines. It may seem like a small point, but it is important to be accurate.
Someone, somewhere, sometime, long, long ago and far away, said that, "The US Supreme Court has ruled that vaccines are unavoidably unsafe," referencing the use of the term in Bruesewitz v. Wyeth. And it has been repeated over and over. But it is not accurate.
Congress placed vaccines in that category, and SCOTUS was merely referencing the already established status of the products.
It is correct to say that "US Law regards vaccines as unavoidably unsafe."
But Congress itself did that, not the Supreme Court.
Feel free to remind a member of Congress of that fact if he makes the false claim that, "Vaccines Are Safe."
From Mary Holland JD, Director of the Graduate Legal studies program at NYU Law School:
"The key language about “unavoidable” side effects comes from the National Childhood Vaccine Injury Act, 42 USC 300aa-22, re manufacturer responsibility (see highlighted text below).
That language was based on language from the Second Restatement of Torts (a legal treatise by tort scholars), adopted by most state courts in the mid-1960’s, that considered all vaccines as “unavoidably unsafe” products. The Restatement opined that such products, “properly prepared, and accompanied by proper directions and warnings, is not defective, nor is it unreasonably dangerous.”
The Bruesewitz v. Wyeth case interpreted the highlighted text below from the National Vaccine Injury Act to find that it did not permit design defect litigation – that issue had been unclear since 1986, and different state high courts and federal circuits had decided the issue differently. So, [it] is correct that the US Supreme Court never decided that vaccines are “unavoidably unsafe” directly, but it acknowledged that Congress considers them to be so.
Sec. 300aa-22. Standards of responsibility
(a) General rule
Except as provided in subsections (b), (c), and (e) of this section State law shall apply to a
civil action brought for damages for a vaccine-related injury or death.
(b) Unavoidable adverse side effects; warnings
(1) No vaccine manufacturer shall be liable in a civil action for damages arising from a
vaccine-related injury or death associated with the administration of a vaccine after October 1,
1988, if the injury or death resulted from side effects that were unavoidable even though the
vaccine was properly prepared and was accompanied by proper directions and warnings.
(2) For purposes of paragraph (1), a vaccine shall be presumed to be accompanied by proper
directions and warnings if the vaccine manufacturer shows that it complied in all material respects
with all requirements under the Federal Food, Drug, and Cosmetic Act."
It's a fact that just like any other medical treatments and drugs (medications, IV iodine, IV solutions, etc., Gadolinium, contrast dye, etc.), vaccines also have side effects. Side effects equal risks. Risks of injury and even death. If this were not so, the vaccine court would not exist. This is why there must be vaccine choice. You want a vaccine, have a vaccine. If you don't want a vaccine, you don't have to receive a vaccine. It's also a fact that there are no peer-reviewed double blind studies proving vaccines are "completely safe" (i.e., "don't cause autism", "don't cause death", "don't harm anyone"), as many doctors and politicians like to spout off. One only has to read the vaccine package inserts, written by the manufacturers, to see there is a long list of side effects and risks. Where there is risk, there must be choice.
Posted by: Angela | July 08, 2020 at 03:08 PM
Words do matter. Because:
"unavoidably unsafe products, are held not to be subject to strict liability for design defect and failure to warn" (and) "though these products are dangerous, they are nonetheless of such benefit to society that strict liability is inappropriate" (see: https://www.healthchoicevt.com/wp-content/uploads/2019/04/Hoffman1993UnavoidablyUnsafe-1.pdf).
This is why the entire industry parrots "the risk outweighs the benefit" in each and every circumstance. Their liability shield depends upon it - the health department, the doctors and the drug makers. They got this liability shield in place in a generation ago with the assertion that vaccines are of such benefit to society that they should be shielded from liability... Now they are going for gold in asserting they are such a benefit to society that there should be no choice. This is too far as we are now seeing the consequences. And EVEN THOSE WHO VACCINATE should being fighting tooth and nail to stop mandatory vaccination, before it is too late!
Posted by: Jennifer Stella | April 26, 2019 at 07:26 PM
The Supreme Court did repeat those very words, and not even in quotes: https://www.supremecourt.gov/opinions/10pdf/09-152.pdf
Posted by: Sarah | February 08, 2019 at 04:05 AM
Are there any other ways to prevent or make milder the VPDs?
There is no such thing as a vaccine preventable disease . There never has been.
Posted by: Barry | November 17, 2018 at 04:25 PM
@Laura Hayes, thank you! I also like Dr. Tenpenny's (at least I heard it from her) "vaccines: unsafe and defective."
@Cia Parker, it's a discussion I wish could be broadened within the larger population to insert more actual health education, but I think that pro-pharma interests really want things boxed in to a mindset of "it's vaccinate (everyone) or die" and then don't ever question how many of the vaccinated then become pharma customers (slaves IMO in one of the most unproductive forms of slavery imaginable, in case anyone feels that is worth mentioning) sometimes for a shortened and too-often tortured life span. I watch Dr. Humphries' lectures on vitamin C often and every time think that is just as fundamental as washing hands in a hospital setting, getting all patients vitamin C levels up to improve their survival outcomes, and the medical industry (that we should stop calling the "healthcare" industry IMO until they actually focus on improving health) is deeply entrenched in another Semmelweis Reflexors' moment in terms of nutrition, and they can't be accused of finding nourishing too hard to do, they are supposed to be the best and the brightest, after all.
Posted by: Jeannette Bishop | November 17, 2018 at 12:07 PM
It also surprises me that so many think that vaccines themselves are unavoidable, but that's mainly because people think in blocs. They just say smallpox, polio, and think that by saying those two words, that that makes all vaccines safe, effective, and necessary. When pressed, they can't explain which diseases are the most dangerous, which vaccines the most dangerous, or which vaccines are and which aren't very effective. Or anything about the dangers inherent in the vaccination process per se. And that's the way the establishment wants it.
I agree that good nutrition, clean water, and modern sewage systems are very important in preventing or minimizing the risk from many contagious diseases. And I suggest that the use of homeopathic nosodes be considered. They really are very effective and inexpensive, the caveat being that no one knows for how long the protection lasts, or how it compares to that of vaccines. Avoiding vaccines also usually prevents the immunocompromise which makes some people more vulnerable to severe damage from the contagious diseases plus tetanus. I hesitate when I get to tetanus and diphtheria, which we have talked about before. While good wound hygiene prevents most cases of tetanus, about half of tetanus cases are from inapparent wounds which the person didn't even know he had, which means no wound cleaning. Tetanus is always possible nearly everywhere, as the spores are ubiquitous: more common where horse manure or other types of animal manure have been, but present everywhere. And it still has an almost 50% death rate even with modern hospital care. Diphtheria you'd have to think about. Not all diphtheria strains are capable of transmitting the disease. That being said, diphtheria germs are everywhere too, and it is also a disease with very high mortality, maybe 10% with early hospital treatment, but high enough to worry about. If polio came back here, I think the vaccine would be worth considering. Even with all you can say about it, many thousands were paralyzed by it in the '40s and '50s, and the vaccine prevents those cases of paralysis. And it struck healthy, well-nourished children. And I'm not so sure that we have been unexposed to agricultural and insecticidal chemicals and so are safe from it, and I don't know what anatomical susceptibility consists of. And Hib, I'd let every parent choose, but healthy, well-nourished children used to get Hib at a rate of one in 200, and one in a thousand died, and many were rendered deaf or mentally retarded by it. I'd certainly recommend breast feeding and avoidance of daycare, or large daycares, but not everyone will be able to or want to do that, so beyond that every parent would have to choose to accept or reject the vaccine, which causes peanut allergy and sometimes autism, diabetes, etc.
And nothing will prevent the transmission of the respiratory diseases, other than avoidance of germ carriers, although good nutritional status makes the patients more likely to have a mild course of the disease. And the diseases like measles, mumps, rubella, and chickenpox are beneficial to get naturally in the majority of cases.
Are there any other ways to prevent or make milder the VPDs? Vitamins A, C, and D, of course, and the herbal and homeopathic remedies for treatment.
Shouldn't we separate the mild, rare, and/or beneficial VPDs and consider them separately from the very dangerous ones? Some are rare but also very dangerous, like meningococcal disease, tetanus, and diphtheria. What should we do to prevent them?
Posted by: cia parker | November 16, 2018 at 05:55 PM
One of my favorite play on the words that vaccines are "unavoidably unsafe" is that they are also "avoidably safe". I cannot take credit, but I do enjoy sharing it :)
Posted by: Laura Hayes | November 16, 2018 at 05:15 PM
This actually answers a question I've had on this matter. Thank you for this clarification, Ginger.
I next want to ask why so many think of vaccines themselves are unavoidable? There could be a myriad of ways to avoid dis-ease outcomes from infections (some seem to be already apparently well-worth adding to the "disease prevention arsenal" but for some reason are ignored), many of which may be found to be more beneficial to individuals and society than vaccinating (and if particularly less invasive, shouldn't we celebrate being able to raise an infant without stabbing them) and then trying several ways to prevent or reverse dis-ease effects of vaccinating as well as the infections they do not prevent.
Posted by: Jeannette Bishop | November 16, 2018 at 04:00 PM
And let's not forget, the FDA has gone on record saying safety is irrelevant. Specifically, "any possible doubts, WHETHER OR NOT WELL FOUNDED, about the safety of the vaccine, CANNOT BE ALLOWED TO EXIST in view of the need to assure that the vaccines will continue to be used to the maximum extent consistent with the nation's public health objectives."
The following is from J.B. from ten years ago...definitely worth another read!
Do you know which word was never mentioned as Congress was deliberating the NCVIA in 1986? "Autism"
Posted by: Pam | November 16, 2018 at 02:09 PM
David Weiner, brilliantly-stated comment!
Gary Ogden, also from the Lancet: https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)32862-9/fulltext?dgcid=raven_jbs_etoc_email
Clearly, our resistance work needs to continue in earnest, and escalate rapidly!
Posted by: Laura Hayes | November 16, 2018 at 12:39 PM
I read the Bruesewitz ruling which had the reference to vaccines being unavoidably unsafe. I had previously thought the way many have, that the Supreme Court was acknowledging the obvious so that people could decide for ourselves whether or not to take the risk, but was surprised that the Court had an old-school attitude toward vaccines, believing as an article of faith that EVEN though vaccines were unavoidably unsafe, they were so much safer than the vaccine-preventable diseases for which they were proffered, that most reasonable people would opt to take the risk and get the vaccine. As most of us do for many medical products. Fifteen years ago I got sinus infections for the first time every time I got a cold, which I got frequently when my daughter was little. And I got an antibiotic from the doctor, which almost immediately stopped the pain and resolved the condition. And I was aware, though I didn't spend any time worrying about it, that every antibiotic is dangerous, destroys the microbiome, and has killed a certain number of people. So all antibiotics are unavoidably unsafe. But I took one anyway, and I'm still glad I did. The Supreme Court, like Congress, is STILL unaware of how dangerous vaccines are, or that they cause damaging reactions every time they are given, to everyone, although most are not obvious at the time, or, often, ever. Dr. Moskowitz in Vaccines describes a study of puppies given vaccines and then followed for several years. Every single puppy developed a state of permanent inflammation of their immune system, which, however, in the case of these puppies, had not manifested as overt disease by the end of the study. At this time we're seeing the largest vaccine safety study ever being conducted in real time on American children, and we're seeing the results. But even though this is the case, I still got a rabies booster for our younger cat the other day (her second rabies shot), but don't plan to ever get any more for any of our pets. Two rabies shots for each, the first at six months old, the second a year later, and I'm out. (I got both cats the feline distemper and respiratory three-in-one vaccine when we first got them, the puppy the two each of distemper and parvo when she was little, but won't ever get them again). But that's just my decision arrived at by a lot of study and thought. I may prove to have been wrong one way or the other. And I still think the DT series is usually a good idea for most children after the age of two, even though the vaccine is unavoidably unsafe. Diphtheria and tetanus are much more unavoidably unsafe.
I think the Supreme Court was just behind the times, all the justices having children older than childhood-vaccination age, and behind the loop of the tremendous increase in neurological and autoimmune diseases caused by vaccines, and unaware that if you get all the recommended vaccines, that vaccine damage is light years more likely than damage from the VPDs would be even if you didn't get any of the vaccines. They thought that by using the phrase "unavoidably unsafe" they were showing how realistic they were, weighing both the benefits and the risks, while not realizing to what an extent the establishment has lied about the risks and the benefits.
Posted by: cia parker | November 16, 2018 at 11:37 AM
More astonishing news: Top headline from today's Lancet: "The vaccine-derived polio outbreak in Papua New Guinea was a disaster many experts saw coming as a consequence of the crumbling health system." Admitting guilt; fancy that!
Posted by: Gary Ogden | November 16, 2018 at 10:19 AM
Designating a product "unavoidably safe" really just reflects the static mentality of politicians and bureaucrats, who have no appreciation for how markets work (when they are allowed to, that is).
In a free market, a product which is unsafe is an open invitation to entrepreneurs to find a substitute, a safer product, which will better serve consumers. In an open, competitive market, we would have seen approaches like homeoprophylaxis and probably other innovations taking market share from vaccines. Vaccine manufacturers and providers would have had to find ways to mitigate their risks, or go out of business. But this whole dynamic goes out the window when governments enshrine one particular approach in law.
To the bureaucrat, technology is static and frozen and innovation is not to be contemplated or anticipated.
Posted by: David Weiner | November 16, 2018 at 10:02 AM
SCOTUS was merely rendering the intent of the Congress. How convenient? Even more cynically, the Court will not hear the ultimate test of the Vaccine Act nor the rules promulgated by it. That would be the (unconstitutional) straw that breaks the camel's back. In Cloer v. H.H.S., the whole issue of equitable tolling and due process is side stepped. But, the Court does hear and grant legal fees to Ms. Cloer's attorneys. Lawyers paying lawyers with your tax money. Nothing for the injured. How convenient?
Posted by: Mark Wax | November 16, 2018 at 07:52 AM
I agree Bob. The somewhat impenetrable judgment of the late, unlovely and quite likely assassinated Judge Scalia referred to the legal concept of “unavoidably unsafe” but he did not coin it. If I remember, the effect of the majority ruling was to prevent manufacturers being sued for faulty manufacture - an issue not ultimately covered by the vaccine injury act. The ruling seemed very bad law.
There is a problem with medical products that they have risks hence the formulation, “unavoidably unsafe”, but of course it is a different ethical problem if a product is a treatment as opposed to a preventative measure administered with an ever greater number of such products to an ever greater number of people.
The other the issue which has has been exposed by the recent Ican initiative and RFKjnr is of course that steps have not been taken to make the products as safe as possible (which certainly bears on the premise of Scalia’s ruling).
Posted by: John Stone | November 16, 2018 at 07:15 AM
It's probably just silly uneducated me that sees no reason or need to "split legal hairs" trying to identify who actually said .. "vaccines are unavoidable unsafe".
In my humble opinion .. it should not matter who is to blame for that statement .. whether it be .. "Congress for placing vaccines in that category" OR "SCOTUS for merely referencing the already established status of the products".
In either case .. the Supreme Court was not merely "referencing the already established status of the products" .. they were in my opinion .. REAFFIRMING that particular status .. meaning the Supreme Court AGREED with that status.
In any event .. the "unintended consequences" of the National Childhood Vaccine Injury Act has been a disaster for our country .. and .. most if not all of those disastrous "unintended consequences" arises from legislation providing LIABILITY PROTECTION FOR UNAVOIDABLY UNSAFE VACCINES.
In all honesty I don't care who "said it" .. whether it was Congress or the Supreme Court .. the only thing I care about is the fact the NATIONAL CHILDHOOD VACCING INJURY ACT continues to provide LIABILITY PROTECTION FOR "UNAVOIDABLY UNSAFE PRODUCTS" OF THE VACCINE INDUSTRY ..
Posted by: bob moffit | November 16, 2018 at 06:45 AM