On Tuesday, the US Supreme Court issued a decision that takes a ‘key legal tool out of the hands of those who contend their children’s autism was caused by vaccines,’ as the Wall Street Journal says. By a vote of 6-2, the Supreme Court ruled that vaccine manufacturers are shielded under US law from product-liability suits that allege defects in the design of a vaccine.
Along with last year’s retraction of the 1998 Lancet study in which Dr. Andrew Wakefield claimed a link between the MMR vaccine and autism, the Supreme Court’s ruling strikes another blow to the idea that vaccines or something in vaccines can be linked to autism. Thousands of parents of autistic childrenhave filed lawsuits claiming damages for such a link. Those who contend that they or their children were injured by vaccines that were improperly designed must now seek compensation only through the National Childhood Vaccine Injury Act of 1986.
The case the Court considered was that of Bruesewitz v. Wyeth, No. 09-152, and was brought by the parents of Hannah Bruesewitz. In 1992, she received the D.T.P. (diphtheria, tetanus and pertussis vaccine)while an infant. Afterwards, she suffered seizures and had developmental problems. Her parents filed for a petition under the National Vaccine Injury Program but lost their suit, because, it was ruled, they had not provided enough proof that Hannah’s impairments had been caused by the vaccine. The Bruesewitzes then sued in state court in Pennsylvania; this case was moved to the federal courts, according to whom their claims were ‘pre-empted’ by the 1986 law.
The New York Times quotes Justice Antonin Scalia, writing for the majority, and Justice Sonia Sotomayor, who wrote in dissent. Justice Elena Kagan recused herself because she had worked on the case while she was United States solicitor general:
Justice Antonin Scalia, writing for the majority, said Congress had meant to establish a societal bargain in the 1986 law. “The vaccine manufacturers fund from their sales an informal, efficient compensation program for vaccine injuries,” he wrote. “In exchange they avoid costly tort litigation and the occasional disproportionate jury verdict.”
In a vigorous dissent, Justice Sonia Sotomayor accused the court majority of imposing “its own bare policy preference over the considered judgment of Congress” depriving “vaccine-injured children of a key remedy that Congress intended them to have.”
The case turned on how one provision of the law was interpreted. This provision does not allow for ordinary lawsuits ‘“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 warning”‘—some side effects, that is, cannot be outruled, even though the vaccine was made properly. While noting that the language of this provision could have been written ”more tersely,”‘ Justice Scalia said that the ‘meaning of the passage was not in doubt’ and wrote that ‘“If a manufacturer could be held liable for failure to use a different design the word ‘unavoidable’ would do no work.”’ And Justice Stephen G. Breyer wrote that to allow a jury to make decisions about vaccine design would be, in effect, substituting “less expert for more expert judgment.”
Justice Sotomayor specifically mentioned autism in a footnote, writing of a possible link “between certain vaccines and autism spectrum disorders” appearing to “underlie the majority and concurring opinions in this case.” She also wrote that the Court’s 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”‘; families who allege that their child has been ‘injured’ by a ‘defectively designed vaccine’ have now lost a legal avenue to seek compensation.
It is understandable that parents might think a recently-administratered vaccine might have something to do with a child presenting with unusual symptoms and even developmental delays. But there is mounting scientific evidence that disputes a vaccine-autism link, With recent revelations that Wakefield’s 1998 study was ‘deliberate fraud,’ it is seeming more and more likely that the notion of a vaccine-autism link has received far more attention that it ever ought to have. Such a notion led far too many people to undertake alternative treatments for a child who they allege is ‘vaccine-injured’ and, also, to invest both financial resources and energies in suing manufacturers, over and above much else.
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